[Federal Register Volume 64, Number 130 (Thursday, July 8, 1999)]
[Notices]
[Pages 37012-37015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17344]



[[Page 37011]]

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Part IV





Environmental Protection Agency





_______________________________________________________________________



National Superfund Permanent Relocation Interim Policy; Notice

  Federal Register / Vol. 64, No. 130 / Thursday, July 8, 1999 / 
Notices  

[[Page 37012]]



ENVIRONMENTAL PROTECTION AGENCY

[FRL-6374-9]


National Superfund Permanent Relocation Interim Policy

AGENCY: Environmental Protection Agency.

ACTION: Notice of availability with request for comment on interim 
policy on the use of permanent relocation as part of superfund remedial 
actions.

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SUMMARY: The Environmental Protection Agency (EPA) has developed and is 
requesting comment on an ``Interim Policy on the Use of Permanent 
Relocations as Part of Superfund Remedial Actions.'' This policy 
provides direction to EPA staff on when to consider permanent 
relocation of residents and businesses living near or on National 
Priorities List (NPL) sites as part of a Superfund remedial action.

EFFECTIVE DATE: The effective date for this policy is June 30, 1999.

ADDRESSES: Members of the public may request copies of the ``Interim 
Policy on the Use of Permanent Relocations as Part of Superfund 
Remedial Actions'' by postal mail from Docket Coordinator, 
Headquarters, U.S. EPA, CERCLA Docket Office, (Mail Code 5201G), 401 M 
Street, SW, Washington, DC 20460, 703-603-9232, or (800) 424-9346. 
Written comments on the interim policy may be submitted to the above 
address. EPA expects to hold a meeting in approximately six months in 
order to hear comments on the policy. EPA will announce at a later date 
the time and location of this meeting. Written comments will be 
accepted up until this meeting.
    The ``Interim Policy on the Use of Permanent Relocation as Part of 
Superfund Remedial Actions'' and other documents related to development 
of the policy are also available on the Internet at http://www.epa.gov/
oerrpage/superfund/tools/topics/relocation.

FOR FURTHER INFORMATION CONTACT: Jo Ann Griffith, phone (703) 603-8774, 
Region 2/6 Accelerated Response Center, Office of Emergency and 
Remedial Response (Mail Code 5202G), U.S. Environmental Protection 
Agency, 401 M Street, SW, Washington, DC, 20460, or the Superfund 
Hotline, phone (800) 424-9346 or (703) 412-9810 in the Washington, DC, 
metropolitan area.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
II. Background
III. Summary of Interim Policy
IV. Additional Considerations for Native Americans, Including Alaska 
Native Villages
V. Public Comments

I. Introduction

    The U.S Environmental Protection Agency (EPA) responds to releases 
and threatened releases of hazardous substances under the authority of 
the Comprehensive Environmental Response, Compensation, and Liability 
Act, 42 U.S.C. 9601-9675 (``CERCLA'' or ``the Act''), enacted by 
Congress in 1980. CERCLA was amended on October 17, 1986, by the 
Superfund Amendments and Reauthorization Act (``SARA''), Public Law 99-
499, 100 Stat. 1613 et seq. To implement CERCLA, EPA promulgated the 
revised National Oil and Hazardous Substances Pollution Contingency 
Plan (``NCP''), 40 CFR part 300, on July 16, 1982 (47 FR 31180), 
pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, 
August 20, 1981). The NCP sets guidelines and procedures for responding 
to releases and threatened releases of hazardous substances, 
pollutants, or contaminants under CERCLA. EPA has revised the NCP on 
several occasions. The most recent comprehensive revision was on March 
8, 1990 (55 FR 8666).
    As required under section 121 of CERCLA, the NCP (40 CFR 300.430) 
includes evaluation criteria for determining the selection of remedial 
actions to address releases of hazardous substances. Further the NCP 
(40 CFR part 300, App. D(g)) states that, ``[t]emporary or permanent 
relocation of residents, businesses, and community facilities may be 
provided where it is determined necessary to protect human health and 
the environment.''
    Today's Federal Register document introduces a policy entitled 
``Interim Policy on the Use of Permanent Relocations as Part of 
Superfund Remedial Actions' which provides direction to EPA regional 
decision makers on when to consider permanent relocation as part of a 
Superfund remedial action. This policy outlines some of the 
circumstances under which permanent relocation (in conjunction with 
cleanup) may be considered to protect human health and the environment.

II. Background

    In January 1995, the National Environmental Justice Advisory 
Council's (NEJAC) Waste and Facility Siting Subcommittee requested that 
EPA develop a policy to determine when citizens should be relocated 
away from residential areas near or affected by Superfund sites. NEJAC 
was responding to requests from communities who wanted to be relocated 
away from Superfund sites because of: Fear of the potential health 
effects; their concerns that they could no longer sell their homes; and 
the effects on their overall quality of life. Responding to these 
concerns, the Assistant Administrator of the Office of Solid Waste and 
Emergency Response issued a memorandum entitled ``Relocation of 
Residents Affected by Superfund Sites'' on May 11, 1995, to announce 
EPA's intent to develop a national relocation policy.
    To understand fully the issues associated with relocation, EPA 
initiated several efforts. First, EPA selected the Escambia Wood 
Treating Company site in Pensacola, Florida, as a national relocation 
pilot. On February 12, 1997, a record of Decision (ROD) was issued for 
the permanent relocation of 358 households. The Agency made a decision 
to relocate the residences and clean up the properties to levels that 
are protective for industrial use. Although the pilot project has not 
yet been completed, several key themes are already emerging. These 
include the need for EPA to: keep communities informed throughout the 
process; promptly address community concerns; and factor community 
concerns into EPA decisions. Upon completion of the relocation pilot, 
EPA plans to conduct an evaluation to determine what lessons can be 
applied at future sites and in the final relocation policy.
    Second, EPA reviewed a number of sites where cleanups in 
residential areas had been conducted. To date, the overwhelming 
majority of Superfund sites located in residential areas are being 
cleaned up without the need to permanently relocate residents and 
businesses. For example, at the Glen Ridge, Montclair/West Orange 
Radium sites in New Jersey, the Bunker Hill Mining site in Idaho, and 
the Tar Creek site in Oklahoma, EPA has successfully excavated 
contaminated soils from approximately 5,000 residential properties down 
to levels of contamination that no longer pose unacceptable risks. By 
addressing the risks at these three sites through cleanups, people were 
able to remain in their homes and entire communities were kept intact.
    Finally, EPA sponsored a series of stakeholder forums to solicit 
views and experiences on the subject of relocation. Forums were held 
between May 1996 and October 1997 with representatives from state 
governments, local governments, federal agencies, Native

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American communities, environmental justice groups (which included 
citizens from communities near Superfund sites), industries, and public 
health officials. Input from the relocation forums were considered in 
developing the ``Interim Policy on the Use of Permanent Relocations as 
Part of Superfund Remedial Actions.'' There are three documents 
available that provide information on the relocation forums: 
``Proceedings: Superfund Relocation Roundtable Meeting'' (December 
1996, OSWER 9378.0-03, EPA 540-K-96-010, PB96-963254); ``Meeting 
Summaries from the EPA/ICMA Relocation Stakeholder Forums'' (May 1998, 
OSWER 9378.0-12, EPA/540-R-98-002, PB98-963203); and ``Relocation 
Stakeholder Forums Responsiveness Summary'' (June 1999, OSWER 9375.1-
14, EPA 540-F-98-058, PB99-963206). These documents can be obtained 
through the CERCLA Docket which is listed in the ADDRESSES section of 
this notice.
    Themes that emerged from these meetings included the need for EPA 
to: Work closely with members of the community to address their issues; 
involve the community in the decision making process; and communicate 
openly and honestly. Stakeholders also offered their opinions as to 
what types of situations warrant the use of permanent relocation at a 
site. Many believed that there should be clearly defined trigger 
conditions under which permanent relocation automatically should be 
offered, regardless of whether or not the residential areas could be 
cleaned up. One such suggested trigger condition was the presence of 
adverse health effects for those who live on or immediately adjacent to 
a Superfund site. There was a range of opinions on what type of health 
effects data should be considered, and how exactly they should factor 
into a relocation decision. Some suggested using the baseline risk 
assessment performed to assess the threats posed by the Superfund site, 
while others believed any unexplained or anecdotal reports of health 
effects in the area of the Superfund site should be sufficient to 
trigger a relocation offer. Still others asked EPA to consider 
cumulative and synergistic effects of multiple contaminants from other 
industrial sources.
    In addition to health effects, stakeholders recommended that 
relocation be considered whenever the site has a negative influence on 
the resident's quality of life. Stakeholders provided anecdotal 
information about residents who curtailed all outside activities (e.g., 
allowing children to play outside, socializing outdoors, or opening 
windows) because of their fear of living near a Superfund site. Several 
also expressed concern that EPA might impose restrictions on normal 
residential activities (e.g., recommending that children not play in 
their yards) instead of cleaning up residential areas. Others 
questioned EPA's ability to implement a remedy safely, adding that 
relocation should be considered whenever cleanups result in dust 
emissions or heavy equipment in residential areas. Although 
stakeholders acknowledged that temporary relocations could address 
these safety concerns, some suggested that EPA offer permanent 
relocation when temporary relocation exceeds an acceptable duration.
    Stakeholders also recommended that EPA make relocation experts 
available as early as possible whenever relocation is being 
contemplated as a potential remedial alternative so the community can 
be better informed of their options before a decision is made. There 
was also a general view that if relocation is necessary, EPA should 
seek ways to enhance stability and restore the remaining community's 
viability by working with other governmental and nonprofit agencies.

III. Summary of Interim Policy

    Having proven our ability to successfully restore contaminated 
property at many Superfund sites, generally, EPA's preference is to 
address the risks posed by the contamination by using well-designed 
methods of cleanup which allow people to remain safely in their homes 
and businesses. This is consistent with the mandates of CERCLA and the 
implementing requirements of the NCP which emphasize selecting remedies 
that protect human health and the environment, maintain protection over 
time and minimize untreated waste.
    Because of CERCLA's preference for cleanup, it will generally not 
be necessary to routinely consider permanent relocation as a potential 
remedy component. Whenever permanent relocation is under consideration, 
EPA must ensure that the vacated properties do not pose a current or 
future risk to human health and the environment for those that may come 
in contact with the site. As a result, some type of cleanup or other 
response action generally will be needed to address the vacated 
properties.
    The following list, although not inclusive, provides examples of 
the types of situations where permanent relocation may be considered. 
Generally, the primary reasons for conducting a permanent relocation 
would be to address an immediate risk to human health (where an 
engineering solution is not readily available) or where the structures 
(e.g., homes or businesses) are an impediment to implementing a 
protective cleanup.
     Permanent relocation may be considered in situations where 
EPA has determined that structures must be destroyed because they 
physically block or otherwise interfere with a cleanup and methods for 
lifting or moving the structures safely, or conducting cleanup around 
the structures, are not implementable from an engineering perspective. 
The methods may be technically infeasible because they are too 
difficult to undertake or success may be too uncertain. Additionally, 
these methods may prove not to be cost-effective when compared with 
other alternatives that are protective of human health and the 
environment.
     Permanent relocation may be considered in situations where 
EPA has determined that structures cannot be decontaminated to levels 
that are protective of human health for their intended use, thus the 
decontamination alternative may not be implementable.
     Permanent relocation may be considered when EPA determines 
that potential treatment or other response options would require the 
imposition of unreasonable use restrictions to maintain protectiveness 
(e.g., typical activities, such as children playing in their yards, 
would have to be prohibited or severely limited). Such options may not 
be effective in the long-term, nor is it likely that those options 
would be acceptable to the community.
     Permanent relocation may be considered when an alternative 
under evaluation includes a temporary relocation expected to last 
longer than one year. A lengthy temporary relocation may not be 
acceptable to the community. Further, when viewed in light of the 
balancing of tradeoffs between alternatives, the temporary relocation 
remedy may not be practicable, nor meet the statutory requirement to be 
cost-effective. Additionally, a shortage of available long-term rentals 
within the immediate area, may make any potential temporary relocation 
extremely difficult to implement.
    Whenever permanent relocation is to be considered, it is imperative 
that EPA work with the affected stakeholders (e.g., potentially 
affected residents and businesses, the state, the tribe, the local 
government, and other members of the community) to identify the major 
issues associated with the relocation, including acceptability of 
relocation to the community, so the issues can be

[[Page 37014]]

factored into the remedy selection evaluation.
    A permanent relocation funded through CERCLA should be implemented 
in accordance with the Uniform Relocation and Real Property Acquisition 
Policies Act (URA), 42 U.S.C. 4600-4655, and applicable regulations, 49 
CFR part 24, et seq. The purpose of the URA is to ensure that persons 
displaced as a direct result of a project are treated fairly, 
consistently, and equitably. EPA uses the services of the U.S. Army 
Corps of Engineers and U.S. Bureau of Reclamation to assist in 
conducting relocations because of their expertise in applying the URA. 
All relocations funded by potentially responsible parties (PRPs), as 
part of the remedy selected by EPA, should follow procedures comparable 
to the URA.
    As soon as EPA becomes involved at a site, discussions with the 
community should begin to inform residents and businesses of activities 
at the site and to allow the opportunity for citizens to become part of 
the process. These activities may include, but are not limited to: 
distributing fact sheets to inform the community of site activities; 
conducting availability sessions for residents to ask questions; 
posting news releases about site activities; and establishing hotlines 
to answer citizens' questions.
    When a permanent relocation is considered, residents and businesses 
should understand the multitude of issues associated with the 
relocation process, including the financial benefits. Communities may 
want to use a relocation expert or advisor to provide independent 
assistance to the residents and businesses before EPA makes a decision 
to relocate. A relocation expert may be accessed through EPA's 
Technical Assistance Grant (TAG) program.
    The TAG program awards grants of up to $50,000 to eligible 
communities so they can hire independent technical advisors to 
interpret information about the site. A relocation expert, funded under 
a TAG, would need to meet requirements regarding activities and 
qualifications that apply to TAGs (see 40 CFR part 35, subpart M). 
Generally, a qualified relocation expert should possess the following 
credentials: experience in working on family and/or business 
relocations including knowledge of the URA, and private relocation 
programs; experience working with real estate brokers and lenders; and 
demonstrated knowledge of appraisals, title searches, real estate title 
insurance, and relevant state and local real estate tax laws. In Indian 
country, the relocation expert should also understand relevant federal 
Indian law and tribal law. The relocation expert should be impartial 
and have the ability to explain the costs, benefits, pitfalls, and 
other lifestyle effects of relocation to residents. If a relocation 
decision is made, then EPA will provide relocation counseling services 
as required under the URA. On a voluntary basis, PRPs may fund a 
relocation expert for a community.
    In addition to addressing the community's information needs, there 
are other procedural ways the community can be involved in the cleanup 
process. In response to the President's Executive Order on 
Environmental Justice 12898, Superfund established the Community 
Advisory Group (CAG) program. CAGs, comprising representatives with 
diverse community interests, provide a public forum for community 
members to present and discuss their needs and concerns about a site. 
At sites where relocation is being considered, EPA recommends that a 
CAG or similar-type group be formed to fully engage all the interested 
parties in a meaningful dialogue about the site cleanup and how 
relocation may or may not fit into a community's long-term vision and 
plans.
    The prospect of permanent relocation as a remedial action 
alternative may raise a number of practical problems that should be 
carefully considered by citizens residing in an affected community. In 
some communities, a permanent relocation could alter the fabric of a 
locality by affecting the local tax base and the services that the 
communities support, including small businesses, schools, churches, and 
hospitals. Furthermore, permanent relocation can result in the break up 
of neighborhoods dissolving valuable social cohesion. Community 
involvement activities at a particular site should be tailored to meet 
the various needs and concerns of individual citizens within the 
affected community. EPA should also explore opportunities to partner 
with other federal agencies (e.g., Department of Housing and Urban 
Development, Agency for Toxic Substances and Disease Registry, or 
Department of Transportation), the state, local agencies, non-
governmental organizations, and non-profit organizations (e.g., Red 
Cross) to help identify other potential assistance that may be 
available to the relocated residents or to those in the community that 
remain behind.

IV. Additional Considerations for Native Americans, Including 
Alaska Native Villages

    For all decisions affecting federally recognized tribes, EPA is 
guided both by statute and policies. As provided in CERCLA section 
126(b), if the Agency finds that ``* * * the proper remedial action is 
the permanent relocation of tribal members away from a contaminated 
site because it is cost effective and necessary to protect their health 
and welfare, such finding must be concurred on by the affected tribal 
government before relocation shall occur * * *.'' If there is 
nonconcurrence, EPA should work with the tribal government and 
community on a site-specific basis to address other cleanup options at 
these sites to protect tribal members' health and welfare. 
Additionally, CERCLA section 126(b) states that if the tribal 
government concurs in the relocation decision, then EPA, in cooperation 
with the Department of the Interior, ``* * * shall also assure that all 
benefits of the relocation program are provided to the affected tribe 
and that alternative land of equivalent value is available and 
satisfactory to the tribe. Any lands acquired for relocation of tribal 
members shall be held in trust by the United States for the benefit of 
the tribe * * *.''
    As discussed previously, EPA conducted a stakeholder forum with 
Native American and Alaska Native participants. During that meeting, 
they generally expressed their views that permanent relocations should 
not be conducted on tribal lands. The participants asked that tribal 
lifestyles be considered when evaluating any potential relocation 
alternative. These considerations should include subsistence lifestyles 
(e.g., hunting/fishing territories, dietary needs, medicinal plants), 
treaty-protected resources, and religious beliefs tied closely with the 
land (e.g., sacred religious sites). Due to the close relationship 
between Native Americans and specific lands, relocation of tribal 
communities can have a profound impact on community well-being and 
integrity. Given these unique considerations, EPA expects that tribal 
government concurrence on the use of permanent relocation, as required 
by CERCLA section 126(b), may be quite limited.

V. Public Comments

    EPA's goal is to receive feedback on the ``Interim Policy on the 
Use of Permanent Relocations as Part of Superfund Remedial Actions' 
from the

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widest range of interested parties possible. The policy has already 
enjoyed the benefits of considerable input and broad public comments 
will improve it even further. EPA will review the public comments 
received on the policy and where appropriate, incorporate changes 
responsive to those comments. In addition, EPA is planning to hold a 
meeting with a variety of interested parties in approximately six 
months in order to hear comments on the policy. EPA will announce at a 
later date the time and location of this meeting. EPA will accept 
written comments up until the time of this meeting.
    This policy is not intended to be, and should not be construed as a 
rule. Use of the policy is not legally binding on EPA staff or on other 
parties; rather it is intended to be a tool available for use as site-
specific conditions warrant. EPA is seeking public comment at this time 
to ensure hearing the widest range of views and obtaining all 
information relevant to the development of the policy. EPA expects to 
respond to the comments received on the interim policy. EPA staff 
applying the guidance will have discretion to follow it or diverge from 
it as site-specific conditions may warrant, and each site-specific 
action will be explained in its own record. Please contact individuals 
and offices listed in the section of this notice entitled Addresses and 
For Further Information Contact to learn more about the ``Interim 
Policy on the Use of Permanent Relocations as Part of Superfund 
Remedial Actions.''

    Dated: July 1, 1999.
Timothy Fields, Jr.,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
Response.
[FR Doc. 99-17344 Filed 7-7-99; 8:45 am]
BILLING CODE 6560-50-U