NPL DEFERRAL PROPOSAL

[Lenny Siegel <lsiegel@cpeo.org>]

EPA PROPOSES NEW LISTING POLICY

The following is based on an Interim Final Policy Statement that
was printed in the Federal Register on November 24, 1997 (pp.
62524-62526). EPA will accept comments on or before January 23,
1998. E-mail comments, in ASCII format, may be sent to
SUPERFUND.DOCKET@EPAMAIL.EPA.GOV. I am sorry that I didn't get
around to reading and summarizing this earlier.

Description

EPA has announced an Interim Final Policy concerning the listing
of Federal facilities on the "Superfund" National Priorities
List (NPL) of the nation's worst hazardous waste cleanup sites.
Under certain conditions, the policy would make it easier to
defer the listing of properties that rank high enough for
inclusion and to delete from the list properties already on the
list. That is, it applies to installations which according to
the Hazard Ranking System post a serious risk to a human
population or ecological receptors.

To defer listing a site that otherwise qualifies, EPA has to
determine that it mets all of the three following criteria:

1. The site is already being cleaned up under the corrective
action authoritiy of the Resource Conservation and Recovery Act
(RCRA) with an enforceable order or permit in place.

2. The response under RCRA is progressing adequately.

3. The state and community support deferral of the NPL listing.

In defining the third criterion, "EPA expects the state and
Federal facility which are interested in the NPL deferral to
take appropriate steps to inform the affected parties (e.g.
communities downstream from the site, Natural Resource Trustees,
etc.), as appropriate, of such interest and seek community
participation on such issue. EPA believes that community
participation will be facilitated by the establishment of
Restoration Advisory Boards or Site Specific Advisory Boards by
the affected Federal agencies in conjunction with the state. The
state and Federal facility which are interested in NPL deferral
should also document all of their interactions with the
community and inform EPA of any possible opposition to NPL
deferral of the site."

In addition, EPA is applying to Federal facilities its existing
policy on NPL deletion, which allows a facility to be dropped
from the list before cleanup is complete - if it is adequately
being addressed under RCRA Corrective Action authorities.

Comments

Activists in my community, organized by the Silicon Valley
Toxics Coalition, have long considered NPL listing a valuable
tool in forcing responsible parties to clean up hazardous waste
contamination. It raises the profile of sites. It gives U.S. EPA
a more direct role in oversight of cleanup - even though the
Regional Water Board took the lead at most NPL sites in Silicon
Valley. And it creates the opportunity for residents to receive
EPA technical assistance grants.

In recent years, however, the state of California has sought the
deferral of numerous military bases - ones that qualify on the
basis of contamination - from the NPL. It argues that cleanup
programs are underway already under other authorities. Large
closing military bases, they argue, already have a high profile,
and they contend that listing places an unnecessary stigma on
properties, hindering their future use. Regulators that I
respect believe that the state can do a more efficient job.

Perhaps they can, but thus far the state of California has been
unable to negotiate site-specific cleanup agreements with the
armed services. Federal NPL sites in California, on the other
hand, have enforceable Federal Facilities agreement.

I've never given much weight to the stigma argument. In my area,
a county with nearly 30 NPL sites, the economy is the envy of
the world. Real estate prices in my neigbhorhood, within about
five miles of 15 NPL sites, are incredibly high, and rising.
Netscape, the high-flying software company, is operating above
one of the largest Superfund plumes in our area. Perhaps if we
suffered a different type of contamination, it would have
affected our economy, but NPL listing in itself may have helped,
not hindered, our economy by speeding the cleanup.

Finally, although the Defense Department continues to work on
its own technical assistance program, we have no assurance yet
that it will provide community members with the type of
independent help that they need. The TAG program, with all its
flaws, works.

Therefore, I think NPL deferral is usually a bad idea. The new
regulation, at least, conditions deferral upon community
acceptance. But I'm still nervous. In some communities, narrow
interests more concerned about a quick buck than long-term
sustainability or public health may support deferral, and
agencies may threaten not to cooperate unless it goes through.

Recommendations

I'm not optimistic that EPA will abandon this proposal, so I
offer two additional criteria to moderate its impact:

1) Deferral should be conditioned on the signing of a Federal
Facilities Site Remediation Agreement between the responsible
party and the regulators, within six months of deferral.

2) Technical assistance must be available to the community.

Lenny Siegel
Director, SFSU CAREER/PRO (and Pacific Studies Center)
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@cpeo.org