CERCLA Process

This page is provided as an outline of the Comprehensive Environmental Recovery, Compensation, and Liability Act (CERCLA), a very lengthy and technical statute.  Links to more detailed information are provided where appropriate.  Feel free to check out EPA's take on the CERCLA process by clicking here.

 

 

I. Does CERCLA apply?

 

 

For the EPA to have jurisdiction over a contaminated site like the Portland Harbor, there must have been a release or a threatented release of hazardous substances from a facility that may cause an imminent and substantial endangerment to the public health or welfare or the environment.  In the case of the Portland Harbor, historically there have been many facilities that have released various hazardous substances which may endanger the public and the environment.  Therefore, EPA has jurisdiction to remediate the Portland Harbor under CERCLA.  It is interesting to note that with the Portland Harbor, the EPA Superfund cleanup is limited to the river channel.  EPA has delegated authority for upland contamination to Oregon DEQ.

 

 

II.  Does the Superfund apply?

 

 

Just because CERCLA applies to a contaminated site does not mean that the Superfund also applies.  Only sites that reach a certain level of toxicity are labelled as a Superfund site.  EPA maintains a Hazardous Ranking System (HRS), which defines sites having a ranking of 28.5 or above as worthy of being designated as a Superfund site.  Portland Harbor was found to have a HRS above this level and therefore was placed on the National Priorities List (NPL) as a Superfund site.  Being placed on the NPL as a Superfund site allows for the site to make use of Superfund money during the cleanup process.  However, where PRPs lead the cleanup, Superfund dollars may not be needed, as in the case of Portland Harbor.

 

III.  The Cleanup Process

 
The EPA maintains a database called  CERCLIS, which contains approximately 33,000 sites that might warrant listing as a Superfund site after further study.  EPA can use its investigative authority under CERCLA to visit site to check for contamination or to require entities to provide information to the agency regarding possible pollution.
 
The National Contingeny Plan (NCP) guides the Superfund cleanup process.  The NCP requires that CERCLA cleanup decisions be made through a process that may include:
o   Preliminary Assessment and Site Investigation (PA/SI)
o   Decision to implement removal actions (sometimes called "early actions")
o   Issuance of a proposed plan, opportunity for public comment, and issuance of Record of
 
 
 

1. The Preliminary Assessment and Site Investigation

 

 
Two purposes for PA/SI:
o   Generate info necessary to evaluate whether and which short-term removal actions would be
     appropriate and to allow  
     time to figure out what to do in the long-term
o   Also, information gathered by EPA through the PA/SI will help evaluate whether serious 
     remediation, and therefore NPL siting, is necessary
o   Typically, there is no PRP involvement at this stage (may accompany EPA if site owner)
 
 
 

 

 
·      The purpose of the removal site evaluation portion of the PA/SI is to determine if there is a
       need for short-term removal actions.
·      The NCP defines "removal" very broadly (40 C.F.R. § 300.5)—includes virtually any actions
        taken in response to releases or threatened releases—short term steps designed to assure
        people aren’t being exposed to hazardous  substances while EPA determines whether long
        term efforts are needed.  There is no requirement that the situation pose an emergency or 
       “imminent or substantial endangerment” for removal actions.

 

·      Where EPA takes removal measures at sites that may warrant remedial action, CERCLA
        requires that to the extent practicable, such removal actions contribute to the efficient
        performance of any long-term remedial action
·      PRPs can perform removal actions in certain circumstances, but not all (where the need for
       quick response trumps the need of PRP to select the most cost-effective solution, EPA takes
       charge).
·      There is a cap under removal authority: The project cannot exceed $2 million or one year's
        time.  However, the exceptions to the law are so broad that EPA can do what it wants
       (which in some instance is good because cap is arbitrary).
 
 
 
·      RI/FS is to assess site conditions and evaluate alternatives to the extent necessary to select
       a remedy.
·      The RI portion is to gather enough data to characterize the conditions at the site for
       developing/evaluating remedial alternatives.
·      The FS develops and analyzes alternatives for appropriate response.
·      RI and FS are concurrent processes.
·      RI/FS does not determine the ultimate remedy; it just sets the stage for the ROD
·      Technically, PRPs can do the RI/FS themselves, usually to cut costs, but EPA sets a high bar
       on their participation:
             o   Group participation (not all PRPs but enough to pay for full costs)
             o   Agree to follow EPA scope of work, usually through an administrative consent order.
             o   EPA needs to be convinced that company group hires has technical capabilities to
                  effectively complete cleanup
 
4.  Record of Decision
 
After EPA assesses the Feasibility Study, it can either accept the findings in the FS or it can require changes to be made before adopting a plan.  Once EPA is satisfied with an FS, it will develop a proposed plan for long-term remediation.  EPA will release the plan for public notice and comment period.  EPA can decide to accept or reject any comments during this period.  Once the public comment period is over and EPA has selected a final remedy, it releases a record of decision.  With very limited exceptions, this is the first time that the EPA's decision can be challenged in court.
 
 

IV.  How Clean is Clean?

 

 
When EPA is selecting a final long-term remedy for a site, the agency must analyze five requirements under CERCLA that remedial actions must meet:
o   The remedy must attain a degree of cleanup that assures protection of human health and
     environment.
o   For hazardous substances that will remain after cleanup, they must usually meet all applicable
     and/or relevant and appropriate requirements under federal and state law (ARARs).
o   The remedy must utilize permanent solutions and alternative treatment technologies or
     resource recovery technologies to the maximum extent practicable.
o   It must provide for cost-effective response, taking into account total long- and short—term
     costs of such actions.
o   It must be in accordance with the NCP to the extent practicable.
 
Criteria according to which potential remedies are to be evaluated during both FS alternatives analysis and ultimate remedy selection process:
o   Overall protection of human health and environment*
o   Compliance with ARARs*
o   Long-term effectiveness and permanence**
o   Reduction of toxicity, mobility, or volume through treatment**
o   Short-term effectiveness**
o   Implementability**
o   Cost**
o   State acceptance***
o   Community acceptance***
 
*      The first two factors are threshold criteria that each alternative must meet. 
**    The next five are important
***  The last two are least important (modifying criteria)
 
 

Of note:

 
o   Remedies that emphasize treatment that permanently and significantly reduces the volume,
     toxicity or mobility of the hazardous substances are preferred
o   Offsite transport and disposal without such treatment is least favored where practicable
     treatment technologies are available
o   CERCLA calls for involvement of states and the public; however, there is NO formal
     notice/comment until the final remediation stage after EPA issues the ROD.
 
Once a long-term remedy is selected by EPA in the ROD (assuming no challenges by PRPs or the public), PRPs or EPA implement cleanup of the site.  To learn more about remaining CERCLA process, click here.