SUPERFUND COMMUNITY INVOLVEMENT EPA540-R-98-027 OSWER9205.5-12A PB98-963 235 This document was developed by Booz, Allen & Hamilton Inc. under contract 68-W0-0039 to EPA. It is intended to be used as a training tool for Hotline specialists and does not represent a statement of EPA policy. The information in this document is not by any means a complete representation of EPA's regulations or policies. This document is used only in the capacity of the Hotline training and is not used as a reference tool on Hotline calls. The Hotline revises and updates this document as regulatory program areas change. The information in this document may not necessarily reflect the current position of the Agency. This document is not intended and cannot be relied upon to create any rights, substantive or procedural, enforceable by any party in litigation with the United States. RCRA, Superfund & EPCRA Hotline Phone Numbers: National toll-free (outside of DC area) (800) 424-9346 Local number (within DC area) (703) 412-9810 National toll-free from the hearing impaired (TDD) (800) 553-7672 The Hotline is open from 9 am to 6 pm Eastern Time, Monday through Friday, except federal holidays. CONTENTS 1. Introduction 2. Regulatory Summary 2.1 Definitions 2.2 Background 2.3 Community Involvement in Site Discovery and Notification 2.4 Community Involvement in Response Actions 2.5 Technical Assistance Grants 2.6 Technical Outreach Services for Communities 2.7 Community Advisory Groups 3. Module Summary 1. INTRODUCTION EPA's Superfund Community Involvement program provides the public with information about site conditions and cleanup activities. Most importantly, it promotes participation in the environmental cleanup decisions directly affecting community health and livelihood. Requirements in the National Contingency Plan (NCP) set minimum standards for informing and involving the public in cleanup actions. EPA recognizes, however, that activities above and beyond the NCP requirements are often necessary to successfully involve communities. The NCP upholds the public's right to voice opinions and express concerns about Superfund sites, especially during the Record of Decision (ROD) process, but EPA strives to significantly involve communities throughout the cleanup process. Community involvement in Superfund response actions builds citizen trust, enhances lead agency credibility and guarantees meaningful local participation. Collaborative stakeholder processes which include affected citizens, organized citizen groups, elected officials and potentially responsible parties (PRPs) give voice to the concerns and preferences for proposed and final remedies and other significant decisions throughout the cleanup. The goal of this module is to describe the community involvement requirements and policies as they relate to removal actions, remedial priorities, remedial responses, and administrative records. After completing this module, you will be able to: * Provide the statutory authority for and purpose of Superfund community involvement activities * Explain how citizens may participate in the discovery and notification process and may prompt a preliminary assessment and site investigation * Identify the community involvement activities which must take place regarding removal actions * Specify the community involvement activities necessary to respond to the establishment of remedial priorities (placement on or deletion from the National Priorities List) * Identify the community involvement activities which must take place in conjunction with remedial actions (remedial investigation/feasibility study, selection of remedy, record of decision, and remedial design/remedial action) * Identify the steps necessary to establish an administrative record file containing the documents that form the basis for the selection of a response action. Use this list of objectives to check your knowledge of this topic after you complete the training session. 2. REGULATORY SUMMARY When CERCLA was reauthorized in 1986, Congress wanted to ensure that citizens living near Superfund sites were given the opportunity to influence cleanup decisions affecting their community, and that they could voice concerns throughout the cleanup process. Soliciting input from citizens living near Superfund sites provides EPA with valuable information for selecting and implementing appropriate remedies. Community involvement allows potentially affected citizens, interested parties, organized citizen groups, elected officials, and potentially responsible parties to engage in meaningful dialogue with the lead agency implementing the Superfund remedy. This two- way communication ensures public concerns are accounted for when final remedy selection decisions are made. The NCP requires community involvement activities at specific points in the Superfund process. Compliance with these regulations is necessary at all Superfund sites, but the program is flexible enough to be tailored to meet individual community needs. The community involvement program has demonstrated that including citizens as stakeholders enhances the effectiveness of the cleanup process. 2.1 DEFINITIONS Familiarity with the following terms is key to understanding this module. ADMINISTRATIVE RECORD The administrative record contains the information the lead agency uses to select a response action under CERCLA. This file must be available for public review and a copy must be kept at or near the site, usually at one of the information repositories (e.g., a library). A duplicate file is held in a central location, such as a regional or state office. COMMUNITY ADVISORY GROUPS As part of EPA's initiative to increase public participation during the Superfund response process, EPA is encouraging the use of Community Advisory Groups (CAGs). CAGs are made up of representatives with diverse community interests and provide a public forum for community members to present and discuss their needs and concerns about the decision-making process at sites affecting them. COMMUNITY INVOLVEMENT This term refers to EPA's program to inform and encourage public participation by citizens located near a Superfund site, other interested citizens or parties, organized groups, elected officials, and potentially responsible parties (PRPs) in the Superfund process, as well as to respond to community concerns. COMMUNITY INVOLVEMENT COORDINATOR The Community Involvement Coordinator (CIC) is a lead agency staff member who works with the on-scene coordinator or remedial project manager to inform the public about response actions in accordance with the interactive community involvement requirements set forth in the NCP. COMMUNITY RELATIONS PLAN The community relations plan (CRP) is a formal plan for conducting EPA community involvement activities at a Superfund site. INFORMATION REPOSITORY The information repository is a file containing current information, technical reports, and reference documents regarding a Superfund site. The information repository is usually located in a public building that is conveniently accessible for local residents, such as a public school, city hall, or library. TECHNICAL ASSISTANCE GRANT PROGRAM The Technical Assistance Grant (TAG) program awards grants of up to $50,000 for qualified citizens' groups to hire independent technical advisors to assist them in understanding and commenting on technical factors in cleanup decisions. The money may also be used to communicate technical comments to other members of the community. TECHNICAL OUTREACH SERVICES FOR COMMUNITIES PROGRAM The Technical Outreach Services for Communities (TOSC) program provides educational and technical support for communities affected by hazardous substance issues whom do not have access to a TAG. TOSC is administered through the Hazardous Substance Research Centers (HSRCs), a nationwide network of universities with expertise on hazardous substance issues. Technical experts from the universities provide independent advice to communities requesting assistance. 2.2 BACKGROUND In order to ensure that citizens have the opportunity to make an impact on cleanup decisions affecting their community, and to ensure that citizens have access to all pertinent information about a site, Congress included language in SARA Sections 113(k), 117, 122(d)(2), and 122(i) stipulating community involvement activities at Superfund sites and authorizing EPA to promulgate regulations designed to support community involvement efforts. These authorities provide citizens the tools and information needed to become active participants in the cleanup process, and to significantly influence the scope and direction of a cleanup. COMMUNITY INVOLVEMENT PHILOSOPHY Although CERCLA and the NCP require a number of community involvement activities throughout removal and remedial processes, EPA has learned that early and continuous involvement of affected citizens is a crucial aspect to successful Superfund cleanups. The present community involvement program stresses: * early and continuous involvement * direct contact with citizens * innovative activities above and beyond the statutory and regulatory requirements. The combination of these program goals ensures the community is included throughout all major steps in the response process. 2.3 COMMUNITY INVOLVEMENT IN SITE DISCOVERY AND NOTIFICATION The public may inform EPA of a hazardous substance release by using one of the methods specified in 40 CFR Section 300.405(a) which include: * Notifying EPA in accordance with CERCLA Sections 103(a) or 103(c) * Reporting an observation of a release by a government agency or a citizen * Submitting a petition to EPA or the appropriate federal facility, in accordance with Section 105(d) of CERCLA, requesting a preliminary assessment of the site of a possible hazardous substance release. These options give citizens tools to initiate interaction with EPA through the Superfund site discovery and notification process. Should EPA determine that further action is necessary at a site identified by any of the discovery methods above, more formalized programs of community involvement are made available to the public. These programs are discussed in the following sections. 2.4 COMMUNITY INVOLVEMENT IN RESPONSE ACTIONS Response actions include all removal actions, remedial actions, and related enforcement activities conducted at a site identified as the source of a hazardous substance release. Most of the community involvement regulatory requirements require notification of availability of information, public comment periods, and other discrete actions taken at various stages of a response. The NCP also provides assurances for certain ongoing community involvement activities. For example, a plan of action for implementing community involvement programs addressing the needs and concerns voiced by the community must be developed and implemented throughout the response action. ADMINISTRATIVE RECORD Section 113(k) of CERCLA requires the establishment of an administrative record file containing all information and documentation used in the selection of a response action. This file must contain not only those documents relevant to the chosen response action, but also relevant comments and information, site- specific data, guidance documents, and technical references that the lead agency considered in the ultimate response selection decision. This record provides a legal basis for challenging and defending response action decisions. The administrative record file must be made available for public inspection. Regulations in 40 CFR Section 300.800 pertaining to the administrative record establish procedures for public participation in the development of the file. REMOVAL ACTIONS A removal action is an immediate response intended to protect people from threats posed by hazardous waste sites. In response to a removal action (40 CFR Section 300.415) or a CERCLA enforcement action, a spokesperson designated by the lead agency must be available to inform the community of all actions taken, respond to inquiries, and provide information concerning the release (40 CFR Section 300.415(n)(1)). The spokesperson is responsible for notifying all affected citizens, state and local officials, and when appropriate, civil defense or emergency management agencies of such removal or enforcement actions. Any news releases and statements made by participating agencies will also be coordinated between the spokesperson and the on-scene coordinator or remedial project manager. Depending on the length of the removal or the length of the removal planning period, the required community involvement activities vary. Removal Action Planning Period of Less Than Six Months For removal actions with planning periods of less than six months, before on-site removal activity begins, a notice must be published informing the public of the availability of the site's administrative record file. The notice of availability must be published in a major local newspaper within 60 days of initiation of on-site removal activity. The public must then be given a period of at least 30 days to provide comments on the removal action based on the supporting materials provided in the administrative record file. After the comment period, the lead agency must prepare a written response to significant comments submitted and add all comments and responses to the administrative record file (40 CFR Section 300.415(n)(2)). Removal Actions Extending Beyond 120 Days If a removal action is expected to extend beyond 120 days, within the first 120 days the lead agency must conduct interviews with local officials, community residents, public interest groups, and other interested or affected parties to solicit their concerns and informational needs. The lead agency must also use the information from these interviews to determine how or when citizens would like to become involved in the Superfund process (40 CFR Section 300.415(n)(3)). The lead agency must prepare a community relations plan utilizing the information gathered from the interviews. This plan outlines the community involvement activities that the lead agency will conduct during the removal action. Its purpose is to: * Ensure that the public receives appropriate opportunity for involvement in a wide variety of site-related decisions, including site analysis and characterization, alternatives analysis, and selection of remedy * Determine, based on community interviews, appropriate activities to ensure public involvement * Provide appropriate opportunity for the community to learn about the site. Finally, the lead agency must establish an information repository at or near the site, containing all documentation relating to the removal action. The information repository also contains the administrative record file. A notice must again be published in a local newspaper, alerting the public to both the availability of the administrative record file and the establishment of the information repository. The information repository is often located at a public library, or in a local government building. Removal Action Planning Period Longer Than Six Months When the planning period for a removal action exceeds 6 months, the lead agency must comply with all procedures outlined above for removal actions extending beyond 120 days. The establishment of the administrative record file and the information repository must be completed before final approval of the engineering evaluation/cost analysis (EE/CA) for the removal action. The development of an EE/CA is a key part of the removal action process, consisting of an analysis of removal alternatives for a site as required under 40 CFR Section 300.415(b)(4)(i). A 30-day public comment period on the EE/CA must be announced when it is completed. The lead agency must respond in writing to significant comments submitted and add all comments and responses to the administrative record file. THE NATIONAL PRIORITIES LIST The National Priorities List (NPL) is the list of hazardous substance release sites that EPA has identified as having highest priority for long-term remedial evaluation and response. The aforementioned removal activities can take place at NPL sites. A non federally-owned site placed on the NPL is eligible for Superfund-financed remedial action. The procedures that must be followed to place a site on, or delete a site from, the NPL include several community involvement requirements. Placement of Sites on the NPL Several different methods may be used to determine if a site is eligible to be placed on the NPL (40 CFR Section 300.425(d)). Once the lead agency has identified a site as a candidate for the NPL, EPA may formally propose that the site be included on the list. To ensure public involvement during the proposal process, EPA must publish a notice of proposed rulemaking in the Federal Register declaring the Agency's intent to list the site. The proposed rule will include a request for public comments. When the proposed rule has been finalized and the site becomes a part of the NPL, EPA will again inform the public of its actions by publishing a Final Rule in the Federal Register. The rule will include a response to all significant comments and information submitted during the comment period (40 CFR Section 300.425(d)(5)). Deletion of Sites from the NPL Deletion of a site, or parcel of a site, from the NPL is warranted when no further response action is planned. Once it has been determined that all applicable response actions have indeed been completed, that no further response is necessary, and that the site, or parcel, no longer poses a threat to public health or the environment, EPA (with concurrence from the appropriate state) may propose to have the site deleted from the NPL (40 CFR Section 300.425(e)). This proposal must appear as a notice of intent to delete in the Federal Register and must provide a 30-day public comment period. EPA must also publish a notice in a local newspaper, informing the public of both the intent to delete the site and of the availability of the Federal Register notice of intent. The Agency must make all documentation supporting the proposed deletion available by placing it in the information repository. EPA must then place its response to comments and any additional information submitted during the public comment period in the information repository once the notice of final deletion has appeared in the Federal Register. REMEDIAL ACTIONS Remedial actions are long-term cleanups designed to prevent or minimize the release of hazardous substances to reduce the risk and danger to public health or welfare, or the environment. EPA has established under the NCP at 40 CFR Section 300.430 and 300.435, a formal selection and implementation process known as the remedial investigation/feasibility study (RI/FS) and the remedial design/remedial action (RD/RA). In an effort to select remedies for hazardous substance release sites that are protective of human health and the environment, the RI/FS and RD/RA assess site conditions, evaluate relevant alternatives for remediation, and implement the remedy. It is during these processes that public participation in the remediation selection and implementation process is addressed. Remedial Investigation/Feasibility Study The lead agency conducts all community involvement activities relating to the RI/FS. These activities, found in 40 CFR Sections 300.430(c), are similar to those required for removal actions. Certain activities should be conducted prior to the beginning of the remedial investigation. They include: * Conducting interviews with local officials, community residents, public interest groups, and other interested parties to solicit concerns, informational needs, and citizens' preferences regarding the extent of their involvement in the Superfund process * Preparing a formal community relations plan specifying the community involvement activities that the lead agency expects to undertake during the remedial response * Informing the community of the establishment of at least one information repository at or near the site * Informing the community of the availability of TAGs from EPA, and placing information concerning the application process in the information repository (see Section 2.5). The feasibility study must include a detailed analysis of the different remedial alternatives (40 CFR Section 300.430(e)(9)). This analysis must determine which components of each alternative the community supports, has reservations about, or opposes. During the RI/FS process, the lead agency identifies and evaluates potential suitable technologies, including innovative technologies. EPA has developed the Superfund Innovative Technology Evaluation (SITE) program to encourage commercial development of new and effective remediation techniques. The SITE demonstration program involves soliciting public comment, opinion, and concerns regarding the selected technology and proposed site usage. To aid in this process, EPA may produce videos, brochures, and fact sheets on the SITE demonstration project, and it may also hold public meetings and conduct site visits to facilitate public information efforts. After completion of the RI/FS, the lead agency prepares a proposed plan, analyzing the selection of a specific remedy to be used at a hazardous release site. In order to make this information available to the public, the lead agency must publish a notice of availability of both the proposed plan and the analysis in a local newspaper, ensure that the proposed plan and analysis are available for public inspection in the administrative record file, hold a public meeting, and provide a 30-day comment period to collect public responses to the plan and analysis (40 CFR Section 300.430(f)(3)). After the lead agency has selected the remedial action, that decision must be documented in a record of decision, or ROD. The lead agency must publish a notice of availability of the ROD in a local newspaper and make the ROD available for public inspection at or near the facility prior to the start of the actual remedial activities (40 CFR Section 300.430(f)(6)). Remedial Design/Remedial Action RD/RA activities involve the actual design, construction, and implementation of the remedy selected to clean up a hazardous substance release into the environment. The community involvement activities at this stage include reviewing the community relations plan to ensure that it continues to adequately provide for public involvement activities during the RD/RA, issuing a fact sheet after the completion of the engineering design, and providing a public briefing prior to the initiation of the remedial action (40 CFR Section 300.435(c)(1) and (3)). If significant changes are made to the remedy chosen in the ROD, but the changes do not fundamentally alter the remedy, the lead agency must publish an explanation of significant differences (ESD), place the ESD in the administrative record, and publish a summary of the ESD in a major local newspaper (40 CFR Section 300.435(c)(2)(i)). If significant changes are made to the remedy chosen in the ROD, and the changes fundamentally alter the remedy, the lead agency must propose an amendment to the ROD. The community involvement activities required for amending a ROD include: publishing a notice of availability and description of the proposed amendment in a local newspaper; providing opportunity for comment and a public meeting; responding to significant public comments; and placing the amended ROD in the administrative record file prior to the commencement of the affected remedial activity (40 CFR Section 300.435(c)(2)(ii)). COMMUNITY INVOLVEMENT IN PRIVATE PARTY RESPONSE ACTIONS Any person may undertake a response action to reduce or eliminate a release of a hazardous substance under 40 CFR Section 300.700(a). Private parties must adhere to all of the community involvement requirements found in Sections 300.155, 300.415(n), 300.430(c)(1-4), 300.430(f)(2), (3) and (6), and 300.435(c). It is important that private parties are "consistent with NCP" requirements for cost recovery purposes under CERCLA Section 107(a)(4)(B). Private parties need not, however, establish an administrative record or an information repository (Section 300.700(c)(6)). 2.5 TECHNICAL ASSISTANCE GRANTS SARA Section 117(e) amended CERCLA by authorizing the President to make $50,000 TAGs available to citizen groups living near NPL sites. On October 1, 1992, EPA issued a final rule for TAG applications (57 FR 45311). These grants allow communities to obtain expert, independent technical advice on monitoring and interpreting activities related to a site cleanup. Funds are primarily used to hire an advisor who acts as a special liaison between the citizens and lead agency personnel. Only one TAG per site can be awarded and there are eligibility requirements. To be eligible, a group must be a citizen association, or an environmental or health advocacy group that demonstrates a genuine interest in the site. The group also must be incorporated as a nonprofit organization. In addition, the group must "match" the TAG funds they receive by contributing 20 percent of the total cost of the project using cash or "in-kind" donations (e.g., office supplies, bookkeeping services). Groups can receive a matching fund waiver if requested. Detailed guidelines on what the grant funds may or may not be used for are outlined in a four-part handbook series: Superfund Technical Assistant Grant (TAG) Handbook: Applying For Your Grant (OSWER 9230.1-09A); Superfund Technical Assistance Grant (TAG) Handbook: The Application Forms with Instructions (OSWER Directive 9230.1- 09B); Superfund Technical Assistance Grant (TAG) Handbook: Procurement--Using TAG Funds (OSWER Directive 9230.1-09C); and Superfund Technical Assistance Grant (TAG) Handbook: Managing Your Grant (OSWER Directive 9230.1-09D). 2.6 TECHNICAL OUTREACH SERVICES FOR COMMUNITIES (TOSC) The Technical Outreach Services for Communities (TOSC) program provides educational and technical support for communities affected by hazardous substance issues whom do not have access to a TAG. TOSC is administered through the Hazardous Substance Research Centers (HSRCs), a nationwide network of universities with expertise on hazardous substance issues. Technical experts from the universities provide independent advice to communities requesting assistance. The HSRCs provide basic and applied research, technology transfer, and training on hazardous substance issues, Five multi- university centers, organized by EPA Regional pairings, focus on different aspects of hazardous substance management. They bring together researchers from a variety of disciplines to collaborate on integrated research and TOSC projects. The HSRCs draw financial support from the U.S. EPA and the Departments of Defense and Energy (DoD and DOE), with additional funding from academia, industry, and other state and federal government agencies. 2.7 COMMUNITY ADVISORY GROUPS (CAGS) Community Advisory Groups (CAGs) are designed to enhance public participation in the Superfund process. CAGs effectively facilitate community involvement allowing members of the community, particularly those from low-income and minority groups, to participate in the decision-making process at Superfund sites. In December 1995, EPA published the document Guidance for Community Advisory Groups at Superfund Sites, designed to assist EPA in developing and working with CAGs (OSWER Directive 9230.0-28). Membership in the CAG should be as inclusive as possible, and to the extent practicable, reflect the composition of the community near the site. Through CAGs, community members have a direct line of communication with EPA and many opportunities for expressing their opinions regarding issues such as cleanup levels, future land use, and remedy selection. 3. MODULE SUMMARY It is vital that the CERCLA community involvement program include the public early in site decisions. Early involvement enables EPA to receive feedback from the affected citizens before initial decisions have been made. EPA encourages community involvement activities beyond the formal requirements found in the regulations, especially when it fosters an early open dialogue with potentially affected parties. Congress mandated EPA to develop community involvement provisions to ensure that the public is informed of the proposed actions at a Superfund site, as well as to encourage public participation in the Superfund process. Community involvement activities consist of incidental requirements for public notices and public comment on proposed response actions. In addition, structured programs designed to facilitate public involvement throughout the Superfund process such as community relations plans, TAGs, and the development of an administrative record file are required. The regulations are broad enough to allow flexibility for individual communities. It is the community's prerogative to choose how involved in the Superfund process it will be. Nonetheless, EPA or the lead agency is required to make announcements, organize public meetings, and allow for public comment on proposed remedial actions to ensure the process protects human health and the environment with public consent.