[Federal Register Volume 62, Number 20 (Thursday, January 30, 1997)]
[Notices]
[Pages 4624-4630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2192]
[[Page 4623]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
Comfort/Status Letters Issuance Policy; Notice
Federal Register / Vol. 62, No. 20 / Thursday, January 30, 1997 /
Notices
[[Page 4624]]
ENVIRONMENTAL PROTECTION AGENCY
[FRL-5681-1]
Policy on the Issuance of Comfort/Status Letters
I. Introduction
The Environmental Protection Agency (``EPA'' or ``Agency'') defines
brownfields as abandoned, idled, or under-used industrial and
commercial facilities where expansion or redevelopment is complicated
by real or perceived environmental contamination. A party interested in
brownfield property (``properties'' or ``sites'') is concerned
primarily with whether or not the property has environmental
contamination, and if it does, what are the potential associated
liabilities and costs of cleaning up existing contamination. Equipped
with this information, a party can make an informed decision regarding
the purchase and/or development of the brownfield property.
EPA hopes to provide a measure of ``comfort'' by helping an
interested party to better understand the potential for or actual EPA
involvement at a brownfield property. This policy describes the most
common situations about which parties inquire and the type of
information or comfort EPA may provide to parties to assist them in
assessing the probability of incurring liability under the
Comprehensive Environmental Response, Compensation, and Liability Act
(``CERCLA'' or ``Superfund''). It is not EPA's intention to become
involved in typical private real estate transactions. Rather, EPA
intends to limit the use of such comfort to where it may facilitate the
cleanup and redevelopment of brownfields, where there is the realistic
perception or probability of incurring Superfund liability, and where
there is no other mechanism available to adequately address the party's
concerns. The policy contains four sample comfort/status letters which
address the most common inquiries for information that EPA receives
regarding contaminated or potentially contaminated properties.
II. Background
On January 25, 1995, EPA announced its Brownfields Action Agenda
which outlined the Agency's activities and plans to encourage and
facilitate the cleanup and reuse of brownfields. As part of this
Agenda, the Office of Site Remediation Enforcement (``OSRE'') focused
on the identification of barriers to cleanup and reuse posed by federal
environmental liability. In particular, OSRE concentrated its efforts
on the liability barriers posed by Superfund's requirements to
identify, assess, and cleanup the nation's high priority hazardous
waste sites.
Uncertainty about potential contamination and/or Superfund
liability may prevent otherwise interested parties from purchasing or
redeveloping brownfields. To allay the fear of potential federal
pursuit of parties for cleanup of brownfields, EPA may provide varying
degrees of comfort by communicating EPA's intentions toward a
particular piece of property. Comfort may range from a formal legal
agreement containing a covenant not to sue which releases a party from
liability for cleanup of existing contamination to Agency policy
statements regarding the exercise of EPA's enforcement discretion as it
relates to specific site circumstances or activities of a party.
III. Policy Statement
This policy is designed primarily to assist parties who seek to
cleanup and reuse brownfields. EPA headquarters and regional offices
often receive requests from parties for some level of comfort that if
they purchase, develop, or operate on brownfield property, EPA will not
pursue them for the costs to clean up any contamination resulting from
the previous use.1 EPA believes that the majority of the concerns
raised by these parties can be addressed through the dissemination of
information known by EPA about a specific property and an explanation
of what the information means to EPA. While the sample comfort/status
letters do not account for every possible situation, EPA believes that
the letters contained in this policy will address the most common
requests for comfort. Facts and circumstances, however, will vary and
information may be disseminated through different means including other
written communication, public or individual meetings, or reference to
public information repositories and EPA databases.
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\1\ The terms ``purchase'' and ``operate'' also may refer to
lessees.
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Comfort/status letters are provided solely for informational
purposes and relate only to EPA's intent to exercise its response and
enforcement authorities under Superfund at a property based upon the
information presently known to EPA. EPA encourages the release of as
much information as possible to enable the party to better understand
the potential applicability of CERCLA to individual parcels of property
and make informed decisions. For example, EPA may need to take
Superfund action at the property if conditions at the property change,
or if new information becomes available indicating that present
conditions warrant a Superfund response. With the exception of sharing
information already contained in EPA's files, the letters generally are
not intended to express EPA's opinion as to possible contamination or
extent of contamination at the property or provide any information on
obligations associated with ownership or operation of the site.
Additionally, the letters are not intended to limit or affect EPA's
authority under CERCLA or any other law or provide a release from
CERCLA liability.
Upon receiving a request from an interested party for information
about their circumstances, regional offices may issue comfort/status
letters, at their discretion, when there is a realistic perception or
probability of incurring Superfund liability and such comfort will
facilitate the cleanup and redevelopment of a brownfield property, and
there is no other mechanism available to adequately address the party's
concerns. EPA believes that these comfort/status letters are not
necessary or appropriate for typical real estate transactions. With the
information provided by EPA, the party inquiring about the property can
decide whether the risk of EPA action is enough to forego involvement,
whether to proceed as planned, whether additional investigation into
site conditions is necessary, or whether further information from EPA
or other agencies is needed. This policy is not intended to supersede
EPA's ``Policy Against No Action Assurances.'' 2 Because these
letters do not provide assurance of no action, approval of the
Assistant Administrator of the Office of Enforcement and Compliance
Assurance is not required.
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\2\ The Agency's ``Policy Against No Action Assurances'' issued
November 16, 1984, reaffirms EPA's policy against giving definitive
assurances outside the context of a formal enforcement proceeding
that EPA will not proceed with a particular enforcement response.
Consistent with that policy, EPA may only provide site-specific, no
action assurances with the approval of the Assistant Administrator
of the Office of Enforcement and Compliance Assurance.
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EPA has developed four sample comfort/status letters to address the
most common inquiries received regarding brownfield properties. The
letters are structured with opening and closing paragraphs applicable
to all scenarios falling under that category of letter. Regions may
then choose and combine the applicable substantive paragraphs to tailor
the sample letter to address a party's particular request.
[[Page 4625]]
Directions also are found within the description of the letters and
within the body of each letter. A brief summary of the sample letters
is found below.
1) A ``No Previous Federal Superfund Interest Letter'' may
be provided to parties when there is no historical evidence of federal
Superfund program involvement with the property/site in question (i.e.,
site is not found in the CERCLA information system database, also known
as the Comprehensive Environmental Response, Compensation, and
Liability Information System or ``CERCLIS'');
2) A ``No Current Federal Superfund Interest Letter'' may
be provided when the property/site either has been archived and is no
longer part of the CERCLIS inventory of sites, has been deleted from
the National Priorities List (``NPL''), or is situated near, but not
within, the defined boundaries of a CERCLIS site;
3) A ``Federal Interest Letter'' may be provided at sites
where EPA either plans to respond in some manner or already is
responding at the site. This letter is intended to inform the recipient
of the status of EPA's involvement at the property. Additionally,
language is included to respond to requests regarding the applicability
of Agency Superfund policy, regulation or CERCLA statutory provision to
a party or particular set of circumstances; and,
4) A ``State Action Letter'' may be provided when the
state has the lead for day-to-day activities and oversight of a
response action (e.g., deferred sites.)
Sample letters are appended to this policy as Appendix A. The
relationship between the sample letters is depicted in the table in
Appendix B. Regions are encouraged to tailor the letters to fit region-
specific protocols or site-specific conditions.
IV. Sample Comfort/Status Letters
No Previous Superfund Interest Letter
This letter introduces and explains the purpose of CERCLIS and may
be sent when the property described by the interested party is not
located in active or archived CERCLIS records. The purpose of the
letter is to inform the recipient that, to the best of EPA's knowledge,
the property described in the request has never been addressed under
EPA's Superfund program, nor are there current plans to do so. Regions,
generally, should not interpret a request for a No Previous Superfund
Interest Letter as notification that the site should be entered into
CERCLIS.
Because EPA does not have any information about the property, the
letter does not express any opinion as to possible contamination at the
property or appropriate usage of the property. Additionally, EPA is not
in a position to determine what obligations are associated with
ownership or operation of the property under any present or future
environmental or other federal, state or local statute, regulation or
principle of common law. The interested party is encouraged to contact
the appropriate state agency for further information regarding the
state's intention toward the property. Regions are encouraged to check
with other program offices to determine whether any enforcement action
is planned or ongoing and, if so, coordinate within their region before
deciding how and when to respond to the inquiry.
No Current Superfund Interest Letter
The No Current Superfund Interest Letter is intended for properties
a) that have been archived and removed from the CERCLIS inventory of
Superfund sites; b) where either all or part of the NPL site has been
deleted following EPA's deletion policies (``Deletion from the NPL'' 40
CFR 300.425(e) or ``Partial Deletion of Sites Listed on the National
Priorities List'' published in the Federal Register on November 1,
1995, 60 FR 55466); or, c) situated in the vicinity of but currently
not considered part of the CERCLIS site (e.g., is adjacent to the
site). The purpose of the letter is to let the recipient know that
EPA's Superfund program does not anticipate taking any/additional
response action (which could include enforcement action if the
Potentially Responsible Party (``PRP'') search and/or cost recovery has
been completed), and the basis for its decision. The letter also refers
the party to additional sources of information such as EPA's
administrative record and the appropriate state agency.
The No Current Superfund Interest Letter is divided into three
sections. Section I addresses archived properties and describes the
conditions under which EPA archives a site, EPA's policy towards these
sites, and the circumstances under which EPA would revisit an archived
site. EPA archives a site when the site assessment event, removal
event, or enforcement activity has been completed. EPA will archive a
site if a) no contamination was found at the site; b) the site, while
contaminated, neither met the criteria for inclusion on the NPL nor
required any EPA response action; or, c) contamination was removed
quickly without the need to place the site on the NPL; and d) EPA has
completed its cost recovery action for the site. CERCLIS is updated to
reflect the archiving of the property. Regions should select one of the
appropriate reasons, as described here and in the sample letter, for
the decision to archive the property and add it to the opening and
closing paragraphs (see letter for additional instructions.) This
section of the letter provides comfort by conveying that EPA's
expectation, based upon current information, is not to take further
steps to list the site on the NPL or to take any other CERCLA response
action.
Section II of the letter focuses on sites deleted from the NPL and
properties located in the vicinity of a CERCLIS site. Paragraphs (a)
and (b) of Section II addresses inquiries regarding full or partial
deletions of NPL sites and is appropriate if 1) the portion of the
Superfund site is marked for deletion in CERCLIS and the state concurs
with EPA's decision to delete the portion of the site or 2) after
consultation with the state and a thirty day public comment period, the
entire site is marked for deletion in CERCLIS. (Refer to the sample
letter for specific directions). A site or portion of a site is deleted
from the NPL when ``no further response is appropriate'' (see 40 CFR
300.425(e)). No further response is appropriate when responsible
parties or EPA has completed all response actions, or when a remedial
investigation shows ``no significant threat.'' Either EPA or a petition
from any person may initiate the deletion process.
Paragraph (c) of Section II addresses a property that is in the
vicinity of a CERCLIS site but currently is not affected by the release
of hazardous substances (e.g., a site may be known as the Jones
Industrial Park but the release affects only a portion of the
industrial park property). Paragraph (c) is appropriate when EPA has
sufficient information regarding the level and extent of contamination
at a site to determine that the property is not part of the release.
When a site is listed in CERCLIS, EPA generally delineates the release
of hazardous substances as a geographical area and defines the site by
reference to that area. Thus, the actual release is not limited to that
property but either may extend beyond the property due to contaminant
migration or may not occupy the full extent of the property.
Section III provides language when EPA has compiled an
Administrative Record for the site. If the regional office has compiled
an Administrative Record for the site, please add Section III to any of
the above-mentioned scenarios.
Under the situations addressed in this letter, EPA is not in a
position to provide any opinion on the appropriate use of the property
or obligations
[[Page 4626]]
associated with ownership or operation of the property under any
present or future environmental or other federal law or regulation or
principle of common law. The letter recommends that the interested
party to contact the appropriate state agency for further information
regarding the state's intention toward the property. Before sending
this letter, regions are encouraged to check with other program offices
to determine whether any enforcement action is planned or ongoing and,
if so, coordinate with the appropriate regional program offices before
deciding how and when to respond to the inquiry.
Federal Superfund Interest Letter
When a site is in the Superfund evaluation or response phase, the
most important assistance EPA can provide an interested party may be
information about current Superfund activities. When the site is found
in CERCLIS site inventory, a regional office may issue a Federal
Interest Letter to explain what actions have been taken by EPA toward
the remediation of a particular site (e.g., site sampling, removal
action). The letter also may indicate whether EPA anticipates further
action at a site and the type of action anticipated. In addition to the
opening paragraph, there are four parts to the Federal Interest Letter.
Section I of the letter provides the recipient with the status of the
property--whether the property is or may be part of CERCLIS/NPL site.
Section II describes EPA's planned or ongoing activities (e.g.,
preliminary assessment, removal, or remedial design). Federal Interest
Letters may be considered for sites in the CERCLIS site inventory,
including those on the NPL or eligible for the NPL, sites undergoing a
federal EPA removal action, undergoing federal EPA remedial action, or
where EPA has incurred or will incur response costs.
Section III of the Federal Interest Letter provides language
regarding the application of an EPA Superfund policy, CERCLA statutory
provision or regulation to a party's particular set of circumstances.
As stated in the policy and of particular importance to Section III of
the Federal Interest Letter is the limitation on issuing comfort/status
letters to situations where the requesting party provides information
showing that 1) a project found to be in the public interest (e.g., an
economic redevelopment project) is hindered or the value of a property
is affected by the potential for Superfund liability, and 2) there is
no other mechanism available to adequately address the party's concerns
other than a letter from EPA with a statement regarding the
applicability of a specific Superfund policy, statutory provision or
regulation. These criteria should be met before a region considers
sending the party a Federal Interest Letter. In response to such
requests, regions should evaluate the information provided and respond,
as appropriate, with Section III of the Federal Interest Letter
attaching a copy of the relevant policy or statutory/regulatory
language to the letter.
Section IV provides language for the closing paragraph appropriate
for all sections of the letter. This section of the letter also
encourages the region to include pertinent fact sheets (or any other
relevant information) and refers the party to the administrative record
repository.
State Action Letter
The State Action Letter is intended to provide comfort at sites
where EPA may have either no current Superfund involvement or a
secondary role under the state's (or territory, commonwealth or tribe)
lead of site activities. A state may participate in such activities as
lead agency through a cooperative agreement (``CA'') between the state
and region. A state and region also may develop a Memorandum of
Agreement (``MOA'') in which the region and the state articulate the
roles each will have regarding the cleanup of contaminated properties.
The State Action Letter seeks to advise parties that EPA does not
intend to take federal action under CERCLA when the state has the
primary role of overseeing cleanups pursuant to either state or federal
requirements and, where appropriate, the parties performing the cleanup
are working cooperatively under state direction. EPA, however, may
consider taking action at a site if it receives new information about
site conditions requiring federal action or the responding party and
the state are unwilling or unable to ensure compliance with the
negotiated agreement between the state and responding party or the
state and EPA.
Regions may respond with a State Action Letter to two different
types of inquiries. The first type of inquiry may be from a state
requesting that EPA send a State Action Letter regarding a particular
site. Whenever possible and appropriate, regions should seek to provide
a letter responsive to the state's request. The second type of inquiry
may be from an outside party. The region should prepare a State Action
Letter for that party in consultation with the state, if appropriate.
The State Action Letter is appropriate to send to parties in the
following situations: (a) the site is designated ``state-lead'' in
CERCLIS; (b) the site is designated ``deferred to state'' in CERCLIS
(see ``Guidance on Deferral of NPL Listing Determinations While States
Oversee Response Actions,'' OSWER Dir. 9375.6-11, May 3, 1995); (c) the
site was designated ``deferred to state'' and is subsequently
designated ``archived'' in CERCLIS; or, (d) the site is listed in
CERCLIS and is being addressed under a state voluntary cleanup program
(``VCP'') pursuant to an approved MOA between the region and state. For
sites not listed in CERCLIS, but that are located in a state that has
entered into a VCP MOA with the region (and the region believes that
the site is being addressed pursuant to the state's VCP), the region
should issue a No Previous Federal Interest Letter.
IV. Use of this Policy
This policy is not a rule, and does not create any legal
obligations. The extent to which EPA applies the policy will depend on
the facts of each case. For further information concerning this policy
or sample letters, please contact Elisabeth Freed at (202) 564-5117 or
Lori Boughton at (202) 564-5106 in the Office of Site Remediation
Enforcement.
Dated: January 23, 1997.
Steven A. Herman,
Assistant Administrator, Office of Enforcement and Compliance
Assurance.
Appendix A--Sample No Previous Superfund Interest Letter
Addressee
Re: [Insert name or description of property/site]
Dear [Insert name of party]: I am writing in response to your
letter dated --/--/-- concerning the property referenced above. My
response is based upon the facts presently known to the U.S.
Environmental Protection Agency (``EPA'') and is provided solely for
informational purposes.
The federal Superfund Program, established to cleanup hazardous
waste sites, is administered by EPA in cooperation with individual
states and local and tribal governments. Sites are discovered by
citizens, businesses, and local, state or federal agencies. When a
potential hazardous waste site is reported, EPA records the available
information in its database, the Comprehensive Environmental Response,
Compensation, and Liability Information System (``CERCLIS'). [Note: if
a region practices pre-CERCLIS screening procedures, please include
language indicating that the procedures exists, whether or not the
property is in the process of being ``pre-screened'', and what this
means to the inquirer. Adjustments may be needed to the
[[Page 4627]]
sample language contained in this letter.] The fact that a site is
listed in CERCLIS, however, does not mean that an EPA response action
will occur at the site or that ownership or operation of the site is
restricted or may be associated with liability. The fact that a
property is not listed in CERCLIS does mean that EPA is not currently
planning to take any action under the federal Superfund program to
evaluate the site for inclusion on the National Priorities List (NPL)
or to conduct removal or remediation activities.
The above-referenced property was not identified in a search of the
active and archived records in the CERCLIS database. Please note that
its absence from CERCLIS does not represent a finding that there are no
environmental conditions at this property that require action or that
are being addressed under another federal or state program. The absence
of the property from CERCLIS means that, at this time, EPA is not aware
of any information indicating that there has been a release or threat
of release of hazardous substances at or from the facility that needs
to be assessed by the federal Superfund program and that no such
assessment has been performed by EPA in the past. I encourage you to
contact [insert name of state or local agency] to determine if they
have information regarding the property and its environmental
condition. [Regions also are encouraged to check with other program
offices to determine whether EPA is addressing this site under another
statute such as RCRA].
If you would like more comprehensive information on current or
historical CERCLIS data or to request an additional search, please
contact the National Technical Information Service (``NTIS'), a
publishing clearinghouse for government information. The address is:
U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA
22161 (telephone: (703) 487-4650; fax: (703) 321-8547.) CERCLIS
information is also available on the Internet at http://www.epa.gov/
superfund/index.html#Products. Should you have any further questions
about Superfund, please feel free to contact me at [insert phone
number/address.]
Sincerely,
Regional Contact
cc: State contact
Sample No Current Superfund Interest Letter
Addressee
Re: [Insert name or description of property]
Dear [Insert name of party]: I am writing in response to your
letter dated --/--/-- concerning the property referenced above. My
response is based upon the facts presently known to the United
States Environmental Protection Agency (``EPA'') and is provided
solely for informational purposes. For the reasons stated below, EPA
does not presently contemplate additional Superfund action for this
property.
In response to growing concern over health and environmental
risks posed by hazardous waste sites, Congress enacted the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended (``CERCLA''), establishing the Superfund
program to clean up these sites. The Superfund program is
implemented by EPA in cooperation with individual states and local
and tribal governments. Sites are discovered by citizens,
businesses, and local, state, or federal agencies. After a potential
hazardous waste site is reported to EPA, the available information
is recorded in the Comprehensive Environmental Response and
Liability Information System (``CERCLIS''), EPA's data management
system for Superfund. Sites are added to CERCLIS when EPA believes
that there may be contamination that warrants action under
Superfund.
I. [FOR ARCHIVED SITES]
If , after an initial investigation, EPA determines that the
contamination does not warrant Superfund action, or if an
appropriate Superfund response action has been completed, EPA will
archive that site from CERCLIS. This means that EPA believes no
further federal response is appropriate. Archived sites may be
returned to the CERCLIS site inventory if new information
necessitating further Superfund consideration is discovered.
EPA has archived the above-referenced property from the CERCLIS
site inventory because [choose one of the following (a, b, or c) to
complete the sentence]
[a.] , following site evaluation activities, EPA determined that
either no contamination was found or conditions at the property did
not warrant further federal Superfund involvement.
[b.] a federal removal action was completed and no further
Superfund action is planned for this property.
[c.] environmental conditions at the property are subject to
requirements of [RCRA, UST, OPA, etc.], however, no further interest
under the federal Superfund program is warranted. For further
information concerning these requirements, please contact [name and
telephone number]. [Add to previous sentence] EPA, therefore,
anticipates no need to take additional Superfund enforcement,
investigatory, cost recovery, or cleanup action at this archived
site unless new information warranting further Superfund
consideration or conditions not previously known to EPA regarding
the site are discovered. EPA will maintain a dialogue with the
states and will continue to refer archived sites to the states for
their review and consideration. You may want to contact [insert
state contact, address and telephone number] for further
information.
II. [FOR PARTIAL OR FULL DELETIONS FROM NPL OR FOR A SITE BOUNDARY
SITUATION]
CERCLIS does not describe sites in precise geographical terms
primarily because the boundaries of the contamination and available
information on those boundaries can be expected to change over time.
Once enough information regarding the nature and extent of the
release of the hazardous substances is gathered, EPA can more
accurately delineate the boundaries of a site. [Choose either (a),
(b) or (c)].
(a) [If the property was included in a partial deletion from the NPL]
The above-referenced property [is/appears to be] situated within
the [name of NPL site] which is included on EPA's list of high
priority hazardous waste CERCLIS sites known as the National
Priorities List (``NPL''). EPA, however, has determined that no
further investigatory or cleanup action is appropriate at the
property under the federal Superfund program. With the [insert State
Agency] concurrence, EPA has decided to delete the portion of the
NPL site which contains the above-referenced property in accordance
with the Agency's ``Procedures for Partial Deletions at NPL Sites''
(OERR Directive Number 9320.2-11, August 30, 1996).
(b) [If the property is contained within the NPL site or is defined as
the NPL site and the site has been deleted from the NPL]
The identified property [is/appears to be] [select one: situated
within the defined geographical borders of the [name of NPL site] or
defined as the [name of the NPL site]] which is included on EPA's
list of high priority hazardous waste CERCLIS sites known as the
National Priorities List (``NPL''). EPA, however, has determined
that no further investigatory or cleanup action is appropriate at
the property. In consultation with the [insert State Agency], EPA
has decided to delete this property from the NPL in accordance with
``Deletion from the NPL'' 40CFR 300.425(e).
(c) [If the property is not part of the CERCLIS site but is nearby]
The above-referenced property is located [near or adjacent to]
the [name of CERCLIS Site]. At this time, [statement as to the
status of the site at present time: e.g., preliminary assessment,
site investigation, removal, remedial investigation or feasibility
study is underway or is completed]. Based upon available
information, the property is not presently considered by EPA to be a
part of the [name of the CERCLIS site].
[Add to end of paragraph (a), (b), or (c)]
EPA, therefore, anticipates no need to take [any/additional]
[Superfund enforcement--include if PRP search and cost recovery are
complete] investigatory or cleanup action at this property unless
new information warranting further Superfund consideration or
conditions not previously known to EPA regarding the property are
discovered. You may want to contact [insert state agency
information] for further information. [If appropriate, enclose a
copy of the fact sheet on the CERCLIS site].
III. [IF ADMINISTRATIVE RECORD HAS BEEN COMPILED]
EPA has compiled an administrative record for the [name of
CERCLIS or NPL Site] which provides information on the nature and
extent of the contamination found at the site. This record is
available at EPA Region--and at [location nearby to the site].
[[Page 4628]]
If you have any additional questions, or wish to discuss this
information, please feel free to contact [insert EPA contact and
address].
Sincerely yours,
Regional Contact
cc: State contact
Sample Federal Superfund Interest Letter
Addressee
Re: [insert name or description of property/site]
Dear [Insert name of party]: I am writing in response to your
letter dated --/--/-- concerning the property referenced above. My
response is based upon the facts presently known to the United
States Environmental Protection Agency (``EPA'') and is provided
solely for informational purposes.
In response to growing concern over health and environmental
risks posed by hazardous waste sites, Congress passed the
Comprehensive Environmental Response Compensation and Liability Act
(``CERCLA'') and established the Superfund program to clean up these
sites. The Superfund program is implemented by EPA in cooperation
with individual states and local and tribal governments. Sites are
discovered by citizens, businesses, and local, state and federal
agencies. After a potential hazardous waste site is reported to EPA,
the site-specific information is recorded in the Superfund database,
the Comprehensive Environmental Response and Liability Information
System (``CERCLIS'). Sites are added to CERCLIS when EPA believes
that there may be contamination that warrants action under
Superfund.
EPA initially screens a potential hazardous waste site to
determine what type of action, if any, is necessary. The Superfund
program may then perform a preliminary assessment and site
investigation to determine whether contamination at a property is
likely to require a federal cleanup response, an evaluation to
determine if a short term response action to eliminate or reduce
contamination is needed, and add the site to EPA's list of high
priority hazardous waste sites known as the National Priorities List
(``NPL').
EPA is examining [and/or addressing] the property referenced
above in connection with the [insert name of CERCLIS/NPL site] under
the authority of CERCLA. [Insert appropriate paragraphs from
Sections I and/or II below. Use III for requests regarding the
applicability of a specific policy. Section IV represents the
closing paragraph for all the Federal Superfund Interest letters].
I. STATUS OF THE IDENTIFIED PROPERTY:
a. The above-referenced property is presently part of [or is]
the [insert name of site.] [Add paragraph from Section II for
further information concerning the site.]
b. The above-referenced property may be part of the [insert name
of site.] [Add paragraph from Section II for further information
concerning the site.]
II. STATUS OF EPA ACTIVITIES
a. The site has been placed in the Comprehensive Environmental
Response, Compensation and Liability Information System
(``CERCLIS'') site inventory, but no studies or investigations have
been performed to date. Accordingly, EPA has not developed
sufficient information relating to the nature and extent of
contamination to presently determine whether further federal action
is appropriate under Superfund. Additionally, EPA has not yet
determined which properties may be considered part of the site.
b. A Superfund site evaluation is planned at the [insert name of
site] to investigate possible contamination, and where it may be
located. Accordingly, EPA has not yet determined which properties
may be considered part of the [insert name of site.] [Add
description of site evaluation activity or attach relevant
documents, if available.]
c. A Superfund site evaluation activity is underway at the
[insert name of site] to investigate possible contamination, and
where it may be located. Accordingly, EPA has not yet determined
which properties may be considered part of the [insert name of
site.] [Add description of site evaluation activity or attach
relevant documents, if available.]
d. The [insert name of site] has been proposed to [or placed on]
the Superfund National Priorities List (``NPL''). [Refer to and/or
attach Federal Register notice.] The description of [insert name of
site] contains EPA's preliminary evaluation of which properties are
affected, although the actual borders of the Superfund site could
change based on further information regarding the extent of
contamination and appropriate remedy.
e. A Superfund Remedial Investigation/Feasibility Study (``RI/
FS'') is planned at [insert name of site.] [Add description of RI/FS
and ensuing activities or attach relevant documents, if available].
f. A Superfund Remedial Investigation/Feasibility Study (``RI/
FS'') is underway at [insert name of site.] [Add description of RI/
FS and ensuing activities or attach relevant documents, if
available].
g. A Superfund Remedial Investigation/Feasibility Study (``RI/
FS'') has been completed at [insert name of site.] [Add description
of RI/FS and ensuing activities or attach relevant documents, if
available].
h. EPA is planning a Superfund Remedial Design/Remedial Action
(``RD/RA'') at [insert name of site.] [Insert pertinent information
such as a description of the ROD and RD/RA, such as date of issuance
of the ROD, schedule for cleanup; Fund lead or PRP implementation,
cleanup progress to date; a schedule for future cleanup, especially
a final completion date, cleanup levels to be achieved, and
anticipated future land use of the Site, or attach relevant
informational documents].
i. EPA has commenced a Superfund Remedial Design/Remedial Action
(``RD/RA'') at [insert name of site.] [Insert pertinent information
such as a description of the ROD and RD/RA, such as date of issuance
of the ROD, schedule for cleanup; Fund lead or PRP implementation,
cleanup progress to date; a schedule for future cleanup, especially
a final completion date, cleanup levels to be achieved, and
anticipated future land use of the Site, or attach relevant
informational documents].
j. Superfund Remedial Design/Remedial Action (``RD/RA'') has
been completed at insert name of site.] [If possible provide
information on cleanup achievements, whether it was PRP or Fund-
lead, etc., or attach relevant informational documents, if
available] A Five-year Review will [will not] be necessary at
[insert name of site.] [ Also, describe status with respect to
deletion from the NPL.]
k. A removal action is planned at [insert name of site.]
[provide information on cleanup achievements, whether it was PRP or
Fund-lead, and contact number for On-Scene Coordinator, cost
recovery staff, or ORC attorney, or attach relevant informational
documents, if available.]
l. A removal action is ongoing at [insert name of site.]
[provide information on cleanup achievements, whether it was PRP or
Fund-lead, and contact number for On-Scene Coordinator, cost
recovery staff, or ORC attorney, or attach relevant informational
documents, if available.]
m. A removal action has been completed at [insert name of site.]
[provide information on cleanup achievements, whether it was PRP or
Fund-lead, and contact number for On-Scene Coordinator, cost
recovery staff, or ORC attorney, or attach relevant informational
documents, if available.]
III. FOR PARTIES OR SITES COVERED BY AN EPA POLICY/STATUTE/REGULATION
Dear [Insert name of party]: I am writing in response to your
letter dated --/--/-- concerning the property referenced above. My
response is based upon the facts presently known to the United
States Environmental Protection Agency (``EPA').
As you may know, the above-referenced property is located within
or near the [insert name of CERCLIS site.] EPA is currently taking
[insert description of any action that EPA is taking or plans to
take and any contamination problem.]
[Choose either paragraph [a] or [b]]:
[a. For situations when a party provides information showing
that 1) a project found to be in the public interest is hindered or
the value of a property is affected by the potential for Superfund
liability, and 2) there is no other mechanism available to
adequately address the party's concerns]
The [insert policy citation/statutory/regulatory provision],
provides that EPA, in an exercise of its enforcement discretion,
will not take an enforcement action against parties who meet the
conditions and criteria described in the [insert policy/statute/
regulation]. Based upon the information currently available to EPA,
EPA believes that the [policy/statutory/regulatory provision]
applies to [you/your] situation. I am enclosing a copy of the
[policy/statutory or regulatory provision and fact sheet, if
appropriate] for your review.
[b. For situations when a party does not provide information
showing that 1) a project found to be in the public interest is
hindered or the value of a property is affected by the potential for
Superfund liability, and 2) there is no other mechanism available to
adequately address the party's concerns,
[[Page 4629]]
attach the appropriate policy/statutory or regulatory language and
insert the following language]:
The [insert policy citation/statutory/regulatory provision],
provides that EPA, in an exercise of its enforcement discretion,
will not take an enforcement action against parties who meet the
conditions and criteria described in the [insert policy/statute/
regulation]. [EPA currently does not have enough information
available to determine whether the [insert policy/statutory/
regulatory citation] applies to your situation OR EPA, based upon
the current information available, believes that you/your
circumstances do not meet the criteria/provisions of the [policy/
statute/regulation]. I, however, have enclosed a copy of the
[policy/statutory or regulatory language] for your own review and
determination of its applicability to you [or your situation].
IV. CLOSING PARAGRAPH
EPA hopes that the above information is useful to you.
[Optional--In addition, we have included a copy of our latest fact
sheet for the (insert name of site.)] Further, we direct your
attention to the [insert location of site local records repository]
at which EPA has placed a copy of the Administrative Record for this
site. [Include for section C letters only: This letter is provided
solely for informational purposes and does not provide a release
from CERCLA liability.] If you have any questions, or wish to
discuss this letter, please feel free to contact [insert EPA contact
and address].
Sincerely,
Regional Contact
Enclosure
Sample State Action Letter
Addressee
Re: [Insert name or description of site/property]
Dear [Insert name of party]: I am writing in response to your
letter dated --/--/-- concerning the property referenced above. My
response is based upon the facts presently known to the United
States Environmental Protection Agency (``EPA'') and is provided
solely for informational purposes.
The problem of investigating, responding to, and cleaning
property contaminated by hazardous substances is a complex one. In
an effort to maximize resources and ensure timely responses, EPA and
the states work together in responding to properties posing threats
of environmental contamination. Although the Comprehensive
Environmental Response Compensation and Liability Act (``CERCLA'',
also known as ``Superfund'') is a federal law that establishes a
federal program, the law also envisions and provides for state
involvement at sites handled under the Superfund program. CERCLA
explicitly describes scenarios under which a state may have a
significant and prominent role in site activities.
I. [INSERT THIS SECTION FOR SITES DESIGNATED STATE-LEAD IN CERCLIS]
The site about which you have inquired, [site name], is a site
that falls under the federal Superfund program, but has been
designated a state-lead. A state-lead designation means that
although the site remains in EPA's inventory of sites and may be on
EPA's list of highest priority sites, the National Priorities List
(``NPL''), implementing responsibilities to investigate and cleanup
that site rest with the state of [insert name of state].
Specifically, [insert name of state] is responsible for the day-to-
day activities at the site and will ultimately recommend the cleanup
for the site. EPA's role is to review some of [insert name of
state]'s milestone documents, if appropriate, provide technical
assistance if needed, and, in most cases, approve the final cleanup
method recommended by the state. The state and EPA work together
closely, pursuant to the terms of a Memorandum of Agreement
(``MOA'') to ensure that site responses are conducted in a timely
manner and that interested parties are included in site activities.
Because EPA's day-to-day role at the [insert name of site] is
somewhat limited, you should check with the [your state or state's
environmental program] for more detailed information on site
activities. [insert name of state] is best able to provide you with
detailed information about the site and public documents regarding
site activity. [Regions should include the state RPM name and
number, or at least the state's applicable department name and
number].
II. [INSERT THIS SECTION FOR SITES DESIGNATED ``DEFERRED TO STATE
AUTHORITIES'' PURSUANT TO EPA'S SUPERFUND DEFERRAL POLICY]
The site about which you have inquired, [site name], is a site
that falls under the federal Superfund program, but for which EPA
does not have the day-to-day responsibility. Specifically, the [site
name] site is not proposed for or listed on the NPL. EPA has agreed
not to propose or list the [site name] site on the NPL while the
state of [name of state] addresses the environmental conditions at
the property under its own state authorities. While the [site name]
cleanup is being conducted, EPA intends to act in accordance with
``Guidance on Deferral of NPL Listing Determinations While States
Oversee Response Actions'' (OSWER Dir. 9375.6-11, May 3, 1995). A
copy of this guidance is enclosed for your review and should help
you to better understand EPA's role and intentions at sites for
which activities are deferred to state authorities.
III. [INSERT FOR A SITE DESIGNATED ``DEFERRED'' THAT NOW HAS BEEN
ARCHIVED]
The conditions at the above-referenced property were addressed
by [name of state] pursuant to EPA's ``Guidance on Deferral of NPL
Listing Determinations While States Oversee Response Actions''
(OSWER Dir. 9375.6-11, May 3, 1995). Upon completion of cleanup
activities at the [site name], the property has been removed from
EPA's inventory of hazardous waste sites, the Comprehensive
Environmental Response, Compensation, and Liability Information
System (``CERCLIS'). Consistent with EPA's state deferral guidance,
EPA does not intend to further consider the property for listing on
the NPL [or to take additional Superfund enforcement, investigatory,
cost recovery, or clean up action at the property] unless EPA
receives new information about site conditions that warrants
reconsideration.
A copy of EPA's ``Guidance on Deferral of NPL Listing
Determinations While States Oversee Response Actions'' is enclosed
for your review, so that you may better understand the nature of
EPA's role at the [site name]. For detailed information about site
activities and conditions, you may wish to contact [insert name of
state or state's environmental department], the agency responsible
for overseeing activities on the property.
IV. [INSERT FOR A SITE ADDRESSED UNDER A STATE VCP THAT HAS AN MOA IN
PLACE]
The site about which you have inquired, [site name], is a site
contained in EPA's inventory of hazardous waste sites, the
Comprehensive Environmental Response, Compensation, and Liability
Information System. The [site name] site is not, however, proposed
for or listed on EPA's list of highest priority sites, the National
Priorities List (``NPL''). EPA and the state of [insert name of
state] have agreed, pursuant to a memorandum of agreement (``MOA'')
between the two agencies, to place the site under the authorities of
[insert name of state]'s Voluntary Cleanup Program. For specific
details regarding the activities at [site name] or the MOA, you may
wish to contact the [state name or department responsible for
implementing the MOA].
If you have any additional questions, or wish to discuss this
information, please feel free to contact [insert EPA contact and
address].
Sincerely yours,
Regional Contact:
cc: State contact
APPENDIX B--Use of Comfort Letters
Each of the sample comfort letters is intended to address a
particular set of circumstances and provide whatever information is
contained within EPA's databases. The sample letters do not address
every possible scenario, but are based on the most commonly asked
questions. To differentiate between the purposes of the letters and
understand the relationship between them, the table below provides
guidance on which letter to use to answer a request for information.
[[Page 4630]]
------------------------------------------------------------------------
Recommended letter Recommended letter
Question to be answered if the answer is if the answer is
yes no
------------------------------------------------------------------------
Is the site or property listed Federal Interest No Previous
in CERCLIS? Letter. Superfund
Interest Letter
or No Current
Superfund
Interest Letter.
Has the site been archived from No Current Federal Interest
CERCLIS? Superfund Letter.
Interest.
Is the site or property Federal Interest No Previous
contained (or undetermined) Letter. Superfund
within the defined boundaries Interest Letter
of a CERCLIS site? or No Current
Superfund
Interest Letter.
Has the site or property been No Current Federal Interest
addressed by EPA and deleted Superfund Letter.
from the defined site boundary? Interest Letter.
Is the site or property being If a MOA is in If no MOA is in
addressed by a state voluntary place, No place, No
cleanup program? Previous Previous
Superfund Superfund
Interest Letter Interest Letter
for Non-CERCLIS for non-CERCLIS
sites, or State sites, No Current
Action Letter for Superfund
CERCLIS sites; in Interest Letter
either case, in for CERCLIS
consultation with sites.
the state.
Is EPA planning or currently Federal Interest No Previous
performing a response action at Letter. Superfund
the site? Interest Letter
for non-CERCLIS
sites, No Current
Superfund
Interest Letter
for CERCLIS
sites.
Is the party asking whether or If the party meets If the party does
asserting that the conditions the policy not meet the
at the site or activities of criteria (see policy criteria
the party are addressed by a page 6), Federal (see page 6),
statutory provision or EPA Interest Letter, Federal Interest
policy? (Refer to federal Section III, Letter, Section
interest criteria on page 6) paragraph (a) III, paragraph
with a copy of (b), with a copy
the policy or of the policy or
statutory/ statutory/
regulatory regulatory
language attached. language
attached.
Is the site in CERCLIS but State Action No Previous
designated state-lead or Letter, in Superfund
deferred site? consultation with Interest Letter
the state. for Non-CERCLIS
sites, Federal
Interest Letter
for CERCLIS sites
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[FR Doc. 97-2192 Filed 1-29-97; 8:45 am]
BILLING CODE 6560-50-P