CERCLA Site Cleanup

OVERVIEW

10.1 What is the purpose of this chapter? This chapter establishes U.S. Fish and Wildlife Service (Service) requirements for responding to releases or threatened releases of hazardous substances into the environment to ensure our compliance with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, and the National Oil and Hazardous Substances Pollution Contingency Plan (NCP).

10.2 What is the scope of this chapter? This chapter addresses the Service’s response to releases or threatened releases of hazardous substances on or from land under our jurisdiction, custody, or control, regardless of the funding source for the cleanup (i.e., the Service’s Refuge Cleanup Fund, the Department of the Interior’s (Department) Central Hazardous Materials Fund (CHF), or another funding source), and whether or not the site has been listed on the U.S. Environmental Protection Agency’s (EPA) National Priority List (NPL).

10.3 What are the authorities for this chapter?

A. CERCLA, as amended (42 U.S.C. 9601, et seq.).

B. NCP (40 CFR 300, et seq.)

C. Executive Order 12580, Superfund Implementation, January 23, 1987; as amended by Executive Order 12777, October 18, 1991;  Executive Order 13016, August 28, 1996; and Executive Order 13308, June 20, 2003. 

D. EPA Regulations, Identification and Listing of Hazardous Waste(40 CFR 261).

E. EPA Regulations, Designation, Reportable Quantities, and Notification(40 CFR 302).

F.  CERCLA Implementation.

10.4 What terms do you need to know to understand this chapter?

A. Central Hazardous Materials Fund (CHF). The CHF is the Department’s principal source of funds for CERCLA response action on the most highly contaminated sites located within national wildlife refuges, national parks, and other Department-managed lands. It is the Department’s “Superfund.” The CHF is managed by the Office of Environmental Policy and Compliance (OEPC).

B. Federal Agency Hazardous Waste Compliance Docket (Docket). The Docket is a comprehensive record of information about hazardous substances at Federal facilities that all Federal agencies must report to EPA. CERCLA requires EPA to establish and maintain the Docket, which is available for public inspection. The Docket contains information submitted under Sections 3005, 3010, and 3016 of the Resource Conservation and Recovery Act (RCRA) and Section 103 of CERCLA. See  560 FW 5 for more information.

C. Hazard Ranking System (HRS). The HRS is a system that EPA uses to evaluate the relative potential of hazardous substance releases to pose a threat to human health or cause environmental or ecological damage. EPA uses the HRS to determine priorities among the releases or threatened releases of hazardous substances throughout the Nation and whether or not to include them on the NPL. Sites are listed on the NPL when they receive a score of greater than 28.5.

D. Hazardous Substance. Hazardous substances are defined in a group under CERCLA Section 101(14).

(1) The group includes:

     (a) Substances designated in section 311(b)(2)(A) of the Clean Water Act (CWA);

     (b) Elements, compounds, mixtures, solutions, or substances designated in section 102 of CERCLA;

     (c) Hazardous wastes having the characteristics identified under or listed in section 3001 of the Solid Waste Disposal Act (42 U.S.C. 6921) (but not including any waste for which Congress has suspended its regulation);

     (d) Toxic pollutants listed under section 307(a) of the CWA;

     (e) Hazardous air pollutants listed in section 112 of the Clean Air Act (42 U.S.C. 7412); and

     (f) Imminently hazardous chemical substances or mixtures that the Administrator of EPA has taken action on under section 7 of the Toxic Substance Control Act (15 U.S.C. 2606).

(2) The term 'hazardous substance' does not include petroleum, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel.

E. National Contingency Plan (NCP). The NCP (40 CFR 300, et seq.) is the set of regulations that provide specific requirements for agencies to follow when they are responding to releases of hazardous substances, pollutants, and contaminants under CERCLA and discharges of oil under the CWA. The NCP outlines requirements that apply to all CERCLA response actions that we conduct at NPL and non-NPL sites, including:

(1) Establishing the roles and responsibilities of the various organizations (e.g., National Response Team, Regional Response Teams) that take part in response actions, and describing how the members of these organizations (e.g., On-Scene Coordinators, Remedial Project Managers) coordinate with each other;

(2) Describing methods and criteria for determining the appropriate extent of response;

(3) Describing the procedures to follow when performing remedial actions and removal actions; and

(4) Requiring the lead agency to conduct community involvement and to prepare an administrative record to support its actions.

F. National Priority List (NPL). The NPL is a list of sites that EPA has determined are the most serious uncontrolled hazardous substance releases in the United States and are identified for long-term remedial evaluation and response under CERCLA. The list is primarily based on the HRS score a site receives.

G. National Response Center (NRC). The NRC, located at U.S. Coast Guard (USCG) Headquarters, is the sole national point of contact for all pollution incident reporting. The telephone number for the NRC is 800-424-8802 or 202-267-2675. (See section 10.7 and560 FW 3.

H. Remedial Action. Remedial actions are final actions taken to eliminate unacceptable risk to human health and the environment. See CERCLA Section 101(24). Remedial actions generally take longer than removal actions and are appropriate when site conditions are complex enough to warrant a more comprehensive site investigation and evaluation of alternatives. For example, remedial actions may be more appropriate when a site covers a larger geographic area, or it has more than one medium (soil, surface or groundwater, air) affected by contamination. Unlike removal actions, there are not multiple categories of remedial actions. All remedial responses have two main phases:

(1) A Remedial Investigation/Feasibility Study (RI/FS), and

(2) A Remedial Design/Remedial Action (RD/RA). 

I. Removal Action. Removal actions are response actions that can be selected and implemented relatively quickly to prevent, minimize, or mitigate risk to public health, welfare, or the environment. See CERCLA Section 101(23). Removal actions may be interim in nature and conducted in conjunction with a subsequent remedial action, or they may be final actions, depending on the circumstances at the site. Removal actions can range anywhere from fencing, to site stabilization or containment, to excavation and removal of hazardous substances (see NCP Section 300.415(e)). Site managers must consider the factors outlined in NCP Section 300.415(b)(2) when determining the appropriateness of a removal action. There are three types of removal actions:

(1) Non-time-critical removal actions may be conducted when there is a planning period of at least 6 months before on-site activities have to start.

(2) Time-critical removal actions are conducted when site risks require that on-site actions begin within 6 months of determining that a removal action is necessary. 

(3) Emergency removal actions are conducted when site risks dictate that response activities must begin within hours or days of determining that a release must be addressed.

     (a) The Service does not have delegated CERCLA authority to conduct emergency removal actions. EPA OSCs conduct emergency removal actions.

     (b) Although we do not have the authority to conduct emergency removal actions, we may respond in an emergency situation under other authorities (e.g., in accordance with applicable local resource area hazardous materials incident contingency plans or under our general land management authorities). 

J. Response Action.  Response actions include both removal and remedial actions. See CERCLA Section 101(25).

K. Reportable Quantity (RQ). An RQ is a quantity of any hazardous substance that, when released into the environment, must be reported. The RQs for hazardous substances are in 40 CFR Table 302.4. See 560 FW 3, Reporting Releases of Hazardous Substances, Oil Discharges, and Contaminated Sites, and section 10.7.

CERCLA REQUIREMENTS

10.5 What are the program requirements for CERCLA compliance?  

A. We must follow all of the requirements outlined in CERCLA and the NCP when responding to a release or threatened release of hazardous substances. There are many EPA guidance documents, Departmental environmental compliance memoranda, and Service guidance documents/handbooks available to us to ensure proper compliance with these requirements. Contact your Regional Environmental Compliance Coordinator (RECC) if you have questions or require assistance.

B. The following is a general (but not exhaustive) list of requirements for CERCLA compliance.  See  section 10.9 for information about who in the Service is responsible for these requirements.

(1) CERCLA Section 103 requires that we notify the NRC about all hazardous substance releases (other than a federally permitted release) in a quantity equal to or exceeding the RQ. See  section 10.7  and 560 FW 3 for details on spill reporting.

(2) CERCLA Section 104 gives the President broad response authority to respond to releases or threatened releases of hazardous substances into the environment.  

     (a) Through Executive Order 12580, as amended by Executive Order 13016, the President delegated this response authority to the Secretary of the Department of the Interior for releases on or from land under the Department’s jurisdiction, custody, or control, including the authority to conduct remedial actions and removal actions that aren’t emergencies.  

     (b) 207 DM 7 re-delegates the Secretary’s CERCLA authority to the Service Director for any release or threatened release on property under Service jurisdiction, custody, or control.

(3) CERCLA Section 117 requires that before adopting a plan for remedial action, we must publish a public notice and give the public reasonable opportunity for involvement.

(4) CERCLA Section 120(a) establishes that each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of Government) is subject to CERCLA requirements.

(5) CERCLA Section 120(c) requires that EPA establish and maintain the Docket. Service Manual chapter  560 FW 5 describes the Docket and the procedures for listing, investigating, cleaning up, and reporting the status of Service facilities on it.

(6)CERCLA Section 120(d) requires the timely completion of a preliminary assessment for each site on the Docket and, when required by the HRS, inclusion of the facility on the NPL.

(7)CERCLA Section 120(e) establishes the timeframe for starting the RI/FS for federally owned sites added to the NPL. It also requires an interagency agreement for each such site between EPA and the Federal agency that owns it.

(8)CERCLA Section 120(f) requires us to give State and local officials the opportunity to participate in planning and selecting the remedial action. Their participation includes, but is not limited to, the review of all applicable data as it becomes available and the development of studies, reports, and action plans.

(9) CERCLA Section 120(h) describes the requirements we must follow whenever we enter into a contract for the sale or other transfer of real property where a hazardous substance(s) has been stored, released, or disposed of.

(10) CERCLA Section 121 outlines cleanup standards.

10.6 What types of releases of hazardous substances are evaluated under CERCLA authority?

A. CERCLA defines “release” as any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment. This includes abandoned or discarded barrels, containers, and other closed receptacles containing a hazardous substance, pollutant, or contaminant. The NCP also includes the threat of a release in its definition of release.

B. CERCLA’s definition of “release” excludes the following:

(1) Any release which results in exposure to people solely within a workplace, with respect to a claim they may make against their employer;

(2) Emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or a pumping station engine for a pipeline;

(3) Release of source, byproduct, or special nuclear material from a nuclear incident or from a processing site. These releases are covered by the Atomic Energy Act of 1954, and the Uranium Mill Tailings Radiation Control Act of 1978; and

(4) Normal application of fertilizer.

REQUIREMENTS FOR SPILLS/RELEASES

10.7 What are the reporting requirements for releases of hazardous substances?

A. Regulations at 40 CFR 302.6 require that we notify the NRC within 24 hours of any release (other than a federally permitted release or application of a pesticide) of a hazardous substance from a facility in a quantity equal to or exceeding the RQ.

(1) The NRC’s phone number is 1-800-424-8802.

(2) You must also notify the Regional office as described in 560 FW 3.

(3) You may also have to notify the State Environmental Compliance Office.

(4) Failure to notify the appropriate authorities could make the Service and Project Leader/Facility Manager subject to all of the sanctions, including criminal penalties, in section 103 of CERCLA.

B. RQs for hazardous substances are in the column titled "Final RQ" in 40 CFR Table 302.4, or in Appendix B to Table 302.4. The RQs in Table 302.4 are in units of pounds based on chemical toxicity, while the RQs in Appendix B to Table 302.4 are in units of curies based on the radiation hazard.

(1) The RQ always applies to the hazardous substance itself, not merely to the toxic contaminant.

(2) If the RQs in Table 302.4 and Appendix B conflict, the lowest RQ applies.

(3) Unlisted hazardous substances designated by 40 CFR 302.4(b) have an RQ of 100 pounds, except for those unlisted hazardous wastes that exhibit extraction procedure toxicity as described in 40 CFR 261.24.

C. Project Leaders/Facility Managers should consult with their RECC for additional information.

10.8. Who is the lead agency when there is a release of a hazardous substance to the environment?

A. For land under the Service’s jurisdiction, custody, or control, and except for emergencies, the Service serves as the CERCLA lead agency authorized to respond to releases or threatened releases under CERCLA Section 104 (see section 10.4(I)(3) for information about limitations for emergency removal actions). 

B. When responding to a release of hazardous substances, we, as the lead agency, must comply with CERCLA and the NCP (see section 10.5). The responsibilities of the lead agency include, but are not limited to:

(1) Designating the Remedial Project Manager (RPM) who is responsible for coordinating, monitoring, and directing response actions at the site;

(2) Conducting site investigations to determine whether further response action is necessary;

(3) Evaluating response activities and designing and implementing the response action;

(4) Coordinating and soliciting input from support agencies;

(5) Ensuring meaningful public participation at specified points in the process;

(6) Documenting the basis for selection of the response action by establishing and maintaining an administrative record file for the site; and

(7) Coordinating with the servicing Solicitor’s office to identify Potentially Responsible Parties (PRP) who may be capable of performing response actions with Service oversight, or from whom we may recover response costs.

C. The Service may serve as a “support agency” at mixed ownership sites or sites on Department land when another Federal agency is leading the response action. A support agency’s responsibilities include: 

(1) Identifying a point of contact or coordinator to interact with the lead agency;

(2) Identifying Service-specific applicable or relevant and appropriate requirements that need to be attained by the implementation of the response action; and

(3) Reviewing, commenting, and, when another Federal agency is leading the response action on Department-managed land, concurring on documents or activities related to the response action (see Environmental Compliance Memorandum (ECM) 15-3, “Authorizing CERCLA Response Actions Undertaken by Other Federal Agencies on DOI-Managed Lands”). 

D. At mixed ownership sites, we should use the principles described in ECM 07-3, “Statement of Principles for Collaborative Decision Making at Mixed Ownership Sites,” as the foundation for any agreement we develop with the other Federal agency that describes our respective responsibilities.

E. At sites where another Federal agency is leading the response action on Service-managed land, we have the authority and responsibility to concur on decision documents (e.g., Records of Decision for remedial actions and Action Memoranda for removal actions), and any other documents or activities related to the response. We must be in concurrence with any planned activities or decision documents before we grant another Federal agency access to Service-managed lands to conduct a response.  

RESPONSIBILITIES

10.9 Who is responsible for CERCLA response actions for the Service? See table 10-1.

Table 10-1: Responsibilities for CERCLA Site Cleanup