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CERCLA Review (18-FD-a)

Information current as of 2020
In the United States, any person (developer) who owns or operates a facility on a site contaminated by hazardous substances, arranges for the disposal of hazardous substances, or transports hazardous substances to or from a facility or site, may be required to pay costs or perform cleanup activities if a release of hazardous substances occurs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 - 9675 (CERCLA).

The term "facility" means any building, structure, installation, equipment, pipe or pipeline, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or any site or area where a hazardous substance has been deposited, stored, disposed of, placed, or is otherwise located. 42 U.S.C. § 9601(9).

The term "hazardous substance" means any substance:

42 U.S.C. § 9601(14).

CERCLA, also known as "Superfund," is a federal regulation that compels the cleanup of hazardous waste and aims to hold the responsible party liable for cleanup costs. CERCLA was amended by the Superfund Amendment and Reauthorization Act, 42 U.S.C. §§ 9601 - 9628 (SARA) and the Small Business Liability Relief and Brownfields Revitalization Act of 2002, Pub. L. No. 107-118, 115 Stat. 2356. CERCLA authorizes the EPA to assess and/or cleanup sites contaminated by hazardous material, provide emergency response authority, and ensure that the party(ies) responsible for contamination are held liable for the costs or performance of cleanup activities.

CERCLA Review Process

18-FD-a.1 - Notify EPA of Possible Release of a Hazardous Substance

Upon discovering a release or possible release of a hazardous substance, the discovering party must notify the Environmental Protection Agency (EPA), preferably via the National Response Center (NRC). Where direct reporting to the NRC is not practicable, the discovering party may report to the EPA predesignated on-scene coordinator (OSC) through the regional 24-hour emergency response telephone number. 40 C.F.R. § 300.405(b). Notification should include information that will help characterize the release, including:

  • The location of the release,
  • The types of materials released,
  • An estimate of the quantity of material released,
  • Any possible source of the release, and
  • The date and time of release.

40 CFR § 300.405(d) In addition to notifying the EPA, the owner/operator of the releasing facility must comply with Section 304 of the Emergency Planning and Community Right-to-Know Act (EPCRA) (as explained on the EPA EPCRA Section 304 Website) and Title 40 CFR 355 Emergency Planning and Notification for notifying the community emergency coordinator for the local emergency planning committee of all affected areas and the state emergency response commission of any state affected that there has been a release. 40 C.F.R. § 300.405(g)

18-FD-a.2 - Enter Site Location and Associated Hazard into CERCLIS

Upon receipt of notification, the NRC inputs the site information into the EPA's computerized inventory of potential hazardous substance release sites, the Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS). EPA Regulations Overview Website.

18-FD-a.3 - Conduct Preliminary Assessment/Site Inspection

The Preliminary Assessment (PA) is designed to determine whether a site poses little or no threat to human health and the environment, or, if it does pose a threat, whether the threat requires further investigation. If the PA results in a recommendation for further investigation, the EPA will perform a Site Inspection. Both the PA and Site Inspection are used to verify that a release has occurred and to gather more information, including the potential need for removal action. 40 C.F.R. §§ 300.410; 300.420.

18-FD-a.4 to 18-FD-a.5 - Is an Immediate or Short-term Response Necessary?

Based on the results of the preliminary assessment and site inspection, the EPA determines whether the hazardous substance requires immediate or short-term response actions through the Emergency Response program of the Superfund. Generally, the short-term response consists of removing the hazardous substance as soon as practicable, whereas releases that fall short of a need for immediate or short-term response require remediation over the long term.

18-FD-a.6 - Determine Priority and Place on National Priorities List Site Listing

EPA determines priority and lists the most serious sites identified for possible long-term cleanup of hazardous waste. Sites are listed on the National Priorities List (NPL) upon completion of Hazard Ranking System (HRS) screening, public solicitation of comments about the proposed site, and after all comments have been addressed. Inclusion of a site on the NPL does not in itself reflect a judgment of the activities of its owner or operator, it does not require those persons to undertake any action, nor does it assign liability to any person. The NPL serves primarily informational purposes, identifying for the States and the public those sites or other releases that appear to warrant remedial actions. 40 C.F.R. § 300.425

18-FD-a.7 - Conduct Remedial Investigations/Feasibility Study

The Remedial Investigation (RI) and Feasibility Study (FS (conducted by the lead agency) serve to assess site conditions and evaluate alternatives to the extent necessary to select a remedy. The RI and FS generally include the following activities

  • Project Scoping,
  • Date Collection,
  • Risk Assessment,
  • Treatability Studies, and
  • Analysis of alternatives.

40 C.F.R. § 300.430

18-FD-a.8 - Records of Decision (Explanation of Cleanup Alternatives)

The Records of decision (ROD), prepared by the EPA, documents all facts, analyses of facts, and site-specific policy determinations considered in order to explain the remediation goals that the chosen remedy is expected to achieve. The document is included as part of the administrative record as required. 40 C.F.R. § 300.430 (f)(5) After signing the ROD, the EPA will publish a notice of the availability of the ROD in a major local newspaper of general circulation and make the ROD available for public inspection and copying at or near the facility at issues prior to the commencement of any remedial action. 40 C.F.R. § 300.430 (f)(6)

18-FD-a.9 to 18-FD-a.10 - Will the Cleanup Effort Exceed $25 Million?

If the cost of remedial action non-time critical removal actions is in excess of $25 million, the National Remedy Review Board must review the ROD. The review board was instituted to make the Superfund program faster, fairer, and more efficient. The heightened level of review helps ensure that high-cost cleanup decisions are consistent with Superfund law, regulations and guidance. For more information, visit the National Remedy Review Board Website.

18-FD-a.11 - Develop Remedial Design and Implement Remedial Action

The EPA prepares and implements plans and specifications for applying site remedies during the Remedial Design (RD) and Remedial Action (RA) phases. The majority of the cleanup effort occurs during the RA phase. Specifics of the RD and RA are based on the ROD described in 18-FD-a.8 above. 40 C.F.R. § 300.435. After the remedy has achieved the RA objectives in the ROD and is determined to be ‘’’operational and functional’’’ the State must provide its assurance to assume responsibility for ongoing operation and maintenance measures. 40 C.F.R. § 300.435(f)

18-FD-a.12 to 18-FD-a.13 - Is the Cleanup Effort Superfund Financed?

Where the cleanup effort is financed by the Superfund, the EPA's National Priorities Panel reviews the RD of all new Superfund financed cleanup efforts.

18-FD-a.14 - Conduct and Complete Cleanup Effort

If the cleanup effort does not fall within the scope of CERCLA Superfund financing, the liable party must conduct and complete the cleanup effort at the contaminated site.

18-FD-a.15 - Review of Cleanup Effort to Determine Construction Completion

EPA identifies completion of physical cleanup construction at the contaminated site. Sites qualify for completion when:

  • Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; or
  • EPA has determined that the response action should be limited to measures that do not involve construction; or
  • The site qualifies for deletion from the NPL.

18-FD-a.16 - Post-Construction Completion: Review of Cleanup Effort to Determine Mitigation Effect

After final cleanup is achieved, the EPA ensures that Superfund response actions provide for the long-term protection of human health and the environment. EPA's Post Construction Completion activities also involve optimizing remedies to increase effectiveness and/or reduce cost without sacrificing long-term protection of human health and the environment.

18-FD-a.17 - Delete Site from NPL

EPA removes the site from the NPL after they complete all response actions and cleanup goals. EPA abides by the following procedures for deleting a site from the NPL:

  • The Regional Administrator approves a "close-out report" that establishes that all appropriate response actions have been taken or that no action is required.
  • The Regional Office obtains State concurrence.
  • EPA publishes a notice of intent to delete in the Federal Register and in a major newspaper near the community involved. A public comment period is provided.
  • EPA responds to the comments and, if the site continues to warrant deletion, publishes a deletion notice in the Federal Register.

Releases may be deleted from or re-categorized on the NPL where no further response is appropriate. . 40 C.F.R. § 300.425(e)

18-FD-a.18 - Site Reuse/Redevelopment

Upon deletion, the developer may reuse or redevelop the site as at this point there is no further appropriate response regarding the prior release of hazardous substances.

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