[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]]
_______________________________________________________________________
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
[[Page 37013]]
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