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Indiana Department of Environmental Management

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Chapter 7: Table of Contents

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Chapter 7 - Section II: What Is the Role of the Federal Government?

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, also known as Superfund)

  • Purpose:
    • Remediation, or clean-up, of areas that are heavily contaminated with hazardous wastes
  • Process Evaluation:
    • Site placed on national priorities list
    • Proposed plan for remedial action: Record of decision
  • Opportunity for Public Participation:
    • Input on the site and its history is solicited from the public
    • A fact sheet detailing clean-up alternatives is prepared and placed on public notice
    • 30-day public comment period
    • Public meeting

When potential Superfund sites, or areas that could be heavily contaminated with hazardous wastes, are first brought to the attention of U.S. EPA or IDEM, agency staff often respond by conducting a preliminary assessment and possibly a site investigation. IDEM conducts these activities under federal authority and guidance.

Evaluating a site

During the evaluation process, IDEM often solicits input from the public. Specifically of interest is the history surrounding the site, current conditions affecting the population and public concerns. If needed, availability sessions and public meetings are held to address public concerns about these sites. In addition, state and federal staff members work to identify potentially responsible parties, those people or entities who contributed to the site’s contamination. The site may be nominated for inclusion on a national priorities list depending on the level of contamination. The governor is given an opportunity to agree before any site is formally placed on the national priorities list.

Putting a site on the national priorities list

Once a site is on the national priorities list, a full scale investigation of the site, known as a remedial investigation and feasibility study, will be conducted. During the study, IDEM or U.S. EPA will often host public informational meetings to make clean-up issues known. The agencies will then draft a proposed plan for remedial action, listing all clean-up alternatives. The alternatives are then balanced against nine criteria listed in CERCLA, and the alternative that provides the best balance is selected as the recommended option. The nine criteria to be considered are:

  1. Overall protection of human health and the environment.
  2. Compliance with ARARs (applicable or relevant and appropriate requirements) - which addresses whether a remedy will meet federal and state environmental statutes or provides grounds for invoking a waiver.
  3. Short term effectiveness - refers to the speed with which the remedy achieves protection, as well as the potential to create adverse impacts on human health and the environment during the construction and implementation period.
  4. Long term effectiveness and permanence -refers to the amount of risk remaining at a site and the ability of a new remedy to maintain reliable protection of human health and the environment once clean-up goals have been met.
  5. Reduction of toxicity, mobility, or volume through treatment.
  6. Implementability - addresses the technical and administrative feasibility of a remedy, including the availability of materials and services needed.
  7. Cost - addresses the estimated capital and operation and maintenance costs, as well as a present worth cost.
  8. Support agency acceptance -indicates whether, based on its review of the Selected clean-up alternative in the proposed plan for the record of decision, the support agency (either IDEM or the U.S. EPA) concurs with, opposes, or has no comment on the recommended alternative.
  9. Community Acceptance - considers whether comments received during the public comment period for the proposed clean-up plan reflect community support.
Public participation opportunities

Although there may be various public information meetings throughout the Superfund process, one of the primary opportunities for public participation occurs when the proposed plan for remedial action - a fact sheet prepared by the lead agency and listing all clean-up alternatives - is placed on public notice and a public meeting is announced. During this meeting, comments on the proposed plan for remedial action are recorded. The public notice will also announce the beginning of a 30-day public comment period, during which written comments on the plan may be submitted to the agencies.

Recording a decision and making changes

After the public meeting and the close of the 30-day public comment period, the lead agency will review all comments and prepare a record of decision, as well as written responses to all comments submitted at the public meeting and during the 30-day public comment period. Clean-up work can begin at any time after the record of decision is signed by the lead and support agencies.

Any major changes to the clean-up plan featured in the record of decision would require a record of decision amendment. In turn, a record of decision amendment requires another round of opportunities for public input: another public notice, public meeting, and 30-day public comment period, which may be extended to 60 days upon public request. Record of decision amendments are usually needed if additional pollutants or more extensive contamination is discovered after work begins at the site.

Completing Work on a Site

Once work is completed, the site may be removed from the national priorities list. Such delisting requires that EPA publish a rule in the Federal Register. The rule will include a public comment period.

Defense Environmental Restoration Program

  • Purpose:
    • Clean-up and restoration of contaminated military installations
  • Process:
    • Assessment and investigation
    • Proposed plan for remedial action
    • Record of decision
  • Opportunity for Public Participation:
    • Restoration Advisory Board is created
    • Proposed plan for remedial action placed on public notice
    • 30-day public comment period
    • Public meeting

The Defense Environmental Restoration Program (DERP) focuses on the clean-up and restoration of contaminated military installations. The Department of Defense (DoD), which is responsible for conducting the clean-ups, is the lead agency at all DERP sites. As a supporting agency, IDEM's role is to oversee DoD and ensure the clean-ups are being conducted appropriately. All environmental restorations conducted by DoD are required to follow the Superfund process, even if the sites are not on the national priorities list.

Restoration Advisory Boards

DoD policy requires a Restoration Advisory Board be created when there is sufficient and sustained community interest—for example:

  1. When the closure of an installation involves transfer of property;
  2. When 50 citizens petition for a Restoration Advisory Board;
  3. When a federal, state or local government body requests formation of a Restoration Advisory Board; or,
  4. When an installation determines a Restoration Advisory Board is necessary.

The Restoration Advisory Board is DoD's approach to increasing public participation in the DERP and is designed to encourage the exchange of information between community members and installation representatives, the U.S. EPA, and state and local governments. DoD policy requires each Restoration Advisory Board have an installation co-chair and a community co-chair. The co-chairs are equals that share similar responsibilities for the administration of the Restoration Advisory Board and jointly developing meeting agendas and ensuring appropriate issues are raised and discussed. The joint guidelines state membership of the Restoration Advisory Board should reflect the diverse interests and population of the community.

The Restoration Advisory Board has the responsibility to provide advice, discuss such key issues as the scope of studies and level of clean-up, review plans and reports, identify project requirements and recommend priorities. Many Restoration Advisory Board meetings are used to satisfy the public meeting requirements of the Superfund program.

Site assessment and investigation

DERP clean-ups begin with a preliminary site assessment and investigation. This may lead to a full scale investigation of the site, known as a remedial investigation and feasibility study. During the study, DoD may hold public informational meetings to make clean-up issues known. Afterward, DoD will draft a proposed plan for remedial action, which lists all clean-up alternatives and which includes the clean-up action recommended by the agencies. As with other Superfund clean-ups, the recommended clean-up alternative of the proposed plan for remedial action must meet the nine criteria required by CERCLA.

Public participation opportunities

As with Superfund clean-ups, opportunities for public participation occurs when the proposed plan for remedial action is placed on public notice. A public meeting and a 30-day public comment period will be held, at which time DoD will review all comments and draft a record of decision. The record of decision will be accompanied by written responses to all comments submitted at the public meeting and during the 30-day public comment period. If the clean-up proposal recommended in the record of decision is different from the proposal recommended in the proposed plan for remedial action, then the record of decision must include an explanation of why the recommended alternative was changed. An additional public informational meeting may be held when the record of decision is made public. Similar to a Superfund site, any major changes to the clean-up plan featured in the record of decision would require a record of decision amendment.

Completing work on a site and public input into the process

Once clean-up work is completed, excess property at closed military installations may be transferred from DoD to civilian use through a finding of suitability to transfer document. The public must be notified at least 30 days before the transfer of the property. The military installation must also provide notice to the public that the paperwork has been completed and signed by publishing a notice in a local newspaper. It must announce a 30-day public comment period, describe how to submit comments, describe the property and its location, give the date on which the finding of suitability to transfer was signed, list a contact person, and provide information on how to obtain or view a copy of the document.

If a public meeting is scheduled, the notice also must announce the time, place, location, and agenda for that meeting. Persons seeking an extension of the public comment period must submit a request to the environmental coordinator at the installation. DoD must respond to all public comments received for finding of suitability to transfer property transfers.

The affected military installation is required to keep an administrative record of all the activities, comments, and responses associated with each clean-up site. These administrative records may be viewed at a public library and are available in IDEM's Virtual File Cabinet.

Federal Resource Conservation and Recovery Act (RCRA)

  • Purpose:
    • Works with responsible parties to cleanup serious issues regarding solid and hazardous waste
  • Process:
    • Facility assessment
    • Short term stabilization measures to protect human health and the environment
    • Facility investigation
    • Corrective measures study
    • Statement of basis
    • Note: Not all steps are required for all sites
  • Opportunity for Public Participation:
    • Facility reports placed on public notice
    • 45-day public comment period
    • Public hearing may be requested
    • Public notice, 45-day public comment period at completion for some facilities

The Resource Conservation and Recovery Act (RCRA) is the primary law governing the disposal of solid and hazardous waste. It was enacted in 1976 to address the growing volume of municipal and industrial waste, which had been identified as an increasingly important national problem. The law sets forth goals to protect human health and the environment, conserve energy and natural resources, reduce the amount of waste generated, and ensure that the waste was managed in an environmentally sound manner.

IDEM issues permits to Hoosier companies and entities in order to verify that these groups will handle and dispose of hazardous waste in compliance with RCRA. Additionally, IDEM works with entities to remove legacy contamination, or hazardous materials that we disposed of in an environmentally unsafe manner during previous decades. Toxic, ignitable, explosive and corrosive materials are all considered hazardous, and fall under the RCRA regulations.

RCRA corrective action sites

Regulated facilities that do not follow proper procedure or RCRA regulations may be labeled as a RCRA corrective action site. RCRA sites focus on preventing and cleaning up releases of hazardous wastes and address releases to the air, groundwater, surface water, or soil. The RCRA Corrective Action is used to address facilities that are frequently still in use, in order to prevent future Superfund sites.

RCRA corrective action has a minimum of regulatory requirements and is designed to provide the flexibility needed to address a wide range of scenarios and cleanups, providing IDEM the flexibility to use the appropriate portions of the process at a site.

The process that can be used during RCRA corrective action is:

  • RCRA facility assessments are conducted by IDEM and identify potential or actual releases. Releases are commonly from solid waste management units, which are units where solid waste has been stored without regard for proper hazardous material management needs, or areas of concern, which are identified potential contaminant source areas that do not meet the definition of solid waste management units. The assessments are used to make a preliminary determination about the need for corrective action.
  • Interim/Stabilization measures ensures that short-term actions are taken to address immediate threats to human health and the environment. These measures can be taken after conducting a stabilization evaluation, which is generally completed after a RCRA facility assessment or after an RCRA facility investigation.
  • The RCRA facility investigation is similar to a remedial investigation under the Superfund program and compiles information to fully characterize the release in order to better determine the appropriate response action. The RCRA facility investigation typically focuses on the specific units, releases, and exposure pathways identified earlier in the process as being problematic. The RCRA facility investigation is performed by the site owner/operator with IDEM oversight.
  • The corrective measures study identifies appropriate measures to address the release and is conducted after the RCRA facility investigation is completed. The corrective measures study, which also is conducted by the owner/operator with IDEM oversight, evaluates alternative cleanup remedies after which IDEM selects the best remedy given site-specific considerations. If it is an interim status facility, IDEM will issue a statement of basis that lays out the required corrective measure(s). If it is a permitted facility, the permit may be modified by IDEM.
  • The corrective measure implementation, which is carried out by the owner/operator with IDEM oversight involves designing and conducting the cleanup remedy.

During the process, IDEM or U.S. EPA can issue an administrative order or file a civil action when it is determined there has been a release of hazardous waste or hazardous constituents.

Investigating and assessing facilities

Administrative orders or permits issued to noncompliant entities will include a schedule for conducting a RCRA facility investigation and, if necessary, require the facility to conduct a cleanup of hazardous wastes and constituents, also known as remedial action, at all areas found to present unacceptable risks to human health or the environment. Uncooperative facilities that refuse to enter into an agreed order will be issued a unilateral order, known as an order of the Commissioner.

If the RCRA facility investigation establishes a release has occurred that could pose a threat to human health or the environment. The facility will evaluate all applicable corrective measures. The facility may be required to submit a corrective measures study report explaining its justification for proposing a specific remedy from the list of alternatives.

Public participation opportunities

After IDEM has reviewed the RCRA facility investigation report and the corrective measures study report, IDEM will make the two reports or summaries of the two reports, along with a description of the proposed remedy, available for public notice. The public notice will be published in the legal section of the local newspaper and will announce that a remedy has been proposed.

Persons interested in reviewing the two reports or report summaries and the facility's justification for the proposed remedy may view these documents at either the advertised location or IDEM’s Virtual File Cabinet. The public notice also will announce a 45-day public comment period during which members of the public may submit written comments to IDEM regarding the reports and the proposed remedy and that interested persons may request a public hearing.

Establishing corrective measures

After the public comment period is over, IDEM will prepare a "statement of basis" for interim status facilities or modify a facility's permit, if applicable. This process is the equivalent of a record of decision under the Superfund (CERCLA cleanup) program. The statement of basis or permit modification will also include responses to all significant comments received during the public comment period. Based on the public comments it receives, IDEM will select the remedy, which will be protective of human health and the environment.

The statement of basis describing the corrective measure required at an interim status facility, which are existing facilities that suddenly fall under RCRA due to changes in the requirements and are making changes in the facility to be in compliance with new requirements, may not be appealed. If the facility opts not to implement the remedy set out in the statement of basis, IDEM may follow up with enforcement action.

Corrective measures at a RCRA-permitted facility require the facility's permit be modified. Permit modifications to require the IDEM-selected corrective measure may be appealed.

The final work plan created by the facility will generally require the removal or treatment of contaminated material or the on-site isolation of the contaminants or the contaminated media (soil or water). A final work plan can also include a combination of remedial technologies.

Completing corrective measures at permitted facilities

A cleanup remedy that calls for on-site isolation, containment or treatment will require an operation and maintenance plan to ensure the ongoing containment or reduction of contaminants. A remedy resulting in the removal of the contaminant may result in IDEM issuing a “no further action” determination for that particular area, which states the cleanup is considered complete and no further action is required for that area. Additionally, remedies that rely on on-site treatment should ultimately reduce contamination to a level where IDEM could issue a “no further action” determination.

The RCRA corrective action process is concluded by completion determinations. Generally permitted facilities will request a completion determination. IDEM will follow permit modification procedures for public participation and to reflect the determination that corrective action is complete. For more information on public notice procedures for permit modifications, see the permits section.

Completing corrective actions at interim” facilities

At interim status facilities, once IDEM agrees all required activities are completed, a public notice of a proposed corrective action completion determination will be published in a newspaper of local circulation. Local government officials and the county Health Department will be provided notice and be requested to review and comment on the proposed completion determination. A public comment period of 45 days will be provided, and a public hearing may also be requested. A statement of basis summarizing all activities conducted to date and the justification for approving the completion determination will be available for review along with the administrative record, which contains the documents used in making the preliminary decision. IDEM will respond to all significant comments submitted in writing or at a public hearing.

Cleanup program eligibilities

Some facilities subject to RCRA corrective action may be eligible to participate in the IDEM Voluntary Remediation Program to carry out their RCRA corrective action obligations. However, Voluntary Remediation Program participants will be subject to oversight from both programs. In addition, if the facility conducting corrective measures opts to work within the Voluntary Remediation Program only, the "covenant not to sue" does not necessarily resolve the facility's future RCRA corrective action liability.

Natural Resources Damage Program

  • Purpose:
    • Establishes liability for damages to natural resources.
  • Process:
    • Pre-Assessment screen and determination
    • Notification of intent sent to potentially responsible parties
    • Assessment plan
    • Restoration compensation determination plan
    • Consent decree or settlement agreement
  • Opportunity for Public Participation:
    • Assessment plan placed on public notice
    • Public comment period set by trustee (usually 30 days)
    • Restoration compensation determination plan placed on public notice
    • 30-day public comment period
    • Public meeting
    • Consent decree placed on public notice in Federal Register
    • 30-day public comment period

Three federal laws: the Clean Water Act, the Oil Pollution Act, and CERCLA (the Comprehensive Environmental Response, Compensation and Liability Act, better known as Superfund) all establish liability for damages to natural resources. Natural resource damage, which can be a byproduct of petroleum or hazardous materials contamination, is considered to have occurred if contamination has:

  1. damaged the land or water at the site or migrating from it;
  2. negatively affected the biological health of plants, animals, or invertebrates at the site or migrating from the area; or,
  3. Otherwise made the site unfit for use in recreation or other human activities.

Both the federal and Indiana government have an interest in restoring damaged areas. Under authority of federal law, Indiana and various federal agencies have each appointed "natural resources trustees" who represent the public interests associated with resource damage at Superfund or state cleanup sites. The IDEM Natural Resource Damage Assessment and Restoration program is located in the Office of Legal Counsel and reports directly to the Governor-appointed Co-Trustee for Indiana.

Before the Trustees can claim damage to natural resources they are required to determine if a release of oil or hazardous materials occurred, whether or not that release could injure natural resources, if a potentially responsible party has been identified, and if the claim to be brought against the potentially responsible parties will likely be successful.

Because various representatives have been appointed as natural resource trustees by the Governor of Indiana or the President of the United States, a natural resources damage claim may involve several trustees and agencies. Although several agencies may be participating in a claim, the U.S. Fish and Wildlife Service, the Indiana Department of Natural Resources (DNR) and IDEM generally are the primary agencies involved in resource damage claims and subsequent restoration activities for the State of Indiana. Any one of the various participating agencies may serve as the lead administrative agency. Similarly, because each damaged site is unique and the circumstances surrounding natural resource injuries and restoration can vary so much from site-to-site, the natural resource damage assessment rules allow the participating agencies some flexibility in implementing the damage injury, claim and restoration process.

Beginning the assessment and restoration process

Natural resource damage assessment and restoration may begin with trustee preparation of a "Pre-assessment screen and determination" and issuance of a notification of intent to conduct a Natural Resource Damage Assessment (CERCLA) or development of a restoration plan (Oil Pollution Act). A “notice of intent” is a legal notice of pending enforcement sent to all known potentially responsible parties. Only the potentially responsible parties are notified at this point in the process. The notice of intent to conduct a natural resource damage assessment or develop a restoration plan invites potentially responsible parties to participate in the damage assessment and gives them 60 days to accept or decline.

After initiating a pre-assessment screen, the trustees may write an injury investigation plan, or "assessment plan," which is similar to the remedial investigation phase of a Superfund cleanup. The assessment plan evaluates how the contaminants have injured natural resources. For example, it looks at any toxicity test results, determines if the contamination impacts animals in the area by accumulating in their tissue or affecting their reproductive abilities, and determines how the contaminants have interfered with the natural resources. The assessment plan can include one or more "injury reports.” For example, there could be separate injury report on a stream, the fish and other animals in the stream, plants along the stream bank, or how the contamination impacts birds visiting the site.

Public participation opportunities

The assessment plan or its components are placed on public notice. The notice may appear in the Federal Register, in newspaper legal notices or advertisements, or in news releases. Individuals already on mailing lists established during the initial preliminary investigation and site assessment stages of a Superfund cleanup or developed by trustees during pre-assessment screen activities may be contacted directly by mail. Generally, the public notice will describe the type of document on public notice and details on where a copy of the document may be obtained or viewed such as on IDEM’s Virtual File Cabinet or at a local public library. The notice will additionally list a contact person, provide information on how comments may be submitted and residents can request a public availability meeting or an extension of the comment period.

Public meetings or hearings are not specifically required under the natural resource damage program but public meetings with the trustees or their representatives can be requested. Alternatively, the trustees may hold "availability sessions" to allow for one-on-one discussion. Any meetings are usually held in the evenings near the site, and are not recorded. Trustees or their representatives will answer questions at the meeting and can later provide follow-up answers to questions that require more investigation. If a meeting is held, a fact sheet may be mailed out prior to the meeting to all persons who have contacted IDEM and requested to be notified of any decisions associated with the assessment or restoration plan. The public may be notified of the meeting through the mailed fact sheet, ads in the local newspaper, media releases, a notice on IDEM's Web site and, in some cases, by publication in the Federal Register.

The trustee sets the length of the comment period which is usually for 30 days. However, reasonable extensions may be granted upon request by calling or writing the designated contact.

During the assessment planning phase, the trustees may undertake a restoration planning phase. A restoration plan evaluates all the damage to resources and discusses activities that could restore the area or compensate the public for the loss of those damaged resources. The restoration compensation determination plan is also placed on public notice and is subject to a 30-day comment period.

Establishing a final agreement and monetary settlement

After the public comment period, a finalized restoration compensation determination plan may be sent to the potentially responsible parties along with a request for the payment of damage claims. If the potentially responsible parties agree to a settlement, the trustee will draft a consent decree or settlement agreement, which must be placed on public notice in the Federal Register and other media outlets by the U.S. Department of Justice. The notice announces the 30-day public comment period, explains the method for requesting a hearing and how to obtain information on the consent decree from the Department of Justice. Once the finalized consent decree is signed by the potentially responsible parties, the trustees, and a federal judge, the potentially responsible parties will pay damages or agree to carry out the restoration activities with trustee oversight.

In instances when the damage to natural resources is not extensive, trustees may simply identify the damages during the assessment plan, then skip the formal restoration compensation determination plan process and simply establish a dollar value for the damages. There will be a public notice and comment period associated with the damage settlement. At that time, the consent decree must be placed on public notice, and public comment must be accepted for at least 30 days.

If specific restoration work has not been determined in a consent decree, the trustee must write a restoration plan, which takes into account the amount of monetary damages awarded and which addresses restoration or replacement of the damaged resources. If the damage to natural resources is caused by petroleum, the Oil Pollution Act requires that a restoration plan be developed before the potentially responsible parties are billed for damages. The restoration plan is then placed on public notice and public comments are accepted for 30 days. A meeting of public availability also may be held at this time.

Afterwards, trustees will modify the plan based on public comments, if appropriate. The finalized restoration plan will then be released, and will be accompanied by a responsiveness summary that will include all trustee responses to public comments. Agency staff, acting on behalf of the trustee, will then conduct the restoration activities or the potentially responsible parties will carry out the restoration plan themselves, under the supervision of the trustees.

Trustees retain the right to settle with the potentially responsible parties at any time during this process so long as they can demonstrate the settlement is adequate and reasonable. If the PRPs refuse to settle when presented with the finalized restoration compensation determination plan, the dispute will go to court and be resolved by a federal judge. There are no opportunities for public comment if a federal court crafts the settlement. The settlement of a Superfund cleanup case and its related natural resources damage claim can be addressed in two separate consent decrees or they may be rolled into a single consent decree.