Special Topics in Environmental Management

Exploring EPA’s Superfund Partial Deletion Policy

Partial deletions from Superfund sites on the federal National Priorities List (NPL) have become a significant component of the EPA’s goal of accelerating cleanups of contaminated properties and shortening the path to redevelopment and safe, productive reuse. The EPA has reported that there have been 14 partial deletions from the NPL so far this year. That’s nearly 5 times more than the 3 that occurred in each of the most active years between 2007 and 2018, an 11-year period during which a total of 23 partial deletions were affected.

Superfund site

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Furthermore, in its September 2019 report on accomplishments, the EPA Superfund Task Force indicates that the Agency intends to continue to devote resources to partial NPL deletions.

“EPA focused on moving sites from construction complete through the cleanup process to deletion with an emphasis on partial deletions where cleanup is complete at a portion of the site and reuse may be possible,” states the Task Force.

1996 Policy

The EPA issued Partial Deletion of Sites Listed on the National Priorities List in 1995, and that policy still applies today. Prior to the policy, the Agency would delete a site from the NPL only after the entire site satisfied the NPL deletion criteria at 40 CFR 300.425(e). This meant that even if a portion of a Superfund site was cleaned up, that portion was still technically on the NPL. This practice had drawbacks in terms of redevelopment opportunities.

“Deletion of entire sites does not communicate the successful cleanup of portions of those sites,” the Agency stated. “Total site cleanup may take many years, while portions of the site may have been cleaned up and may be available for productive use. Some potential investors or developers may be reluctant to undertake economic activity at even a cleaned-up portion of real property that is part of a site listed on the NPL.”

Communication Tool

In the policy, the EPA emphasized that the NPL is a “management and information tool.” One key purpose is to communicate to the public, states, other federal agencies, and other stakeholders which sites the Agency considers to be the highest priority and which warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances. Apart from that communication function, the NPL has a limited role. Importantly, a listing on the NPL does not assign liability to any party or to the owner of any specific property.

“Liability under [the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) is determined under CERCLA section 107, which makes no reference to NPL listing or deletion,” the EPA stated. “Listing or deleting a site from the NPL does not create CERCLA liability where it would not otherwise exist.”

Also, placing a site on the NPL does not mean that any remedial or removal action needs to be taken.

Petitions

Under the 1996 policy, the EPA deletes portions of sites, as appropriate, and considers petitions to do so. Such petitions may be submitted by any person, including individuals, business entities, states, local governments, and other federal agencies. Partial deletion is also governed by the NPL deletion criteria. State concurrence is a requirement for any partial deletion. The EPA will consider partial deletion for portions of sites when no further response is appropriate for that portion. Such portion may be a defined geographic unit of the site, perhaps as small as a residential unit, or may be a specific medium at the site (e.g., groundwater), depending on the nature or extent of the release.

Procedures for Deletion

Also in 1996, the EPA established procedures for partial deletions at NPL sites. The procedures instruct EPA regional offices on the contents of submissions to EPA headquarters regarding partial deletions from the NPL. Collectively, the submissions provide a national compilation of the total area subject to the partial deletion policy. Headquarters conducts a quality assurance review of the submitted materials. Approval for publication of the Notice of Intent to Delete (NOID) in the Federal Register isgiven once the accuracy of the locational information is verified.

The procedures note that while applications for partial deletions must meet the same criteria as those for full NPL deletions, mapping plays a more important role in partial deletions. In fact, the procedures note that mapping clean areas of Superfund sites is valuable even apart from the partial deletion process.

“In addition to partial deletions, these mapping procedures can be applied to outline and emphasize clean parcels of property contiguous to contaminated parcels included in the NPL site,” the Agency states. “This will foster a clearer public understanding of exactly what property is and is not included in the NPL listing. In this way, we can define the boundaries of the site and exclude those parcels that were never contaminated. More precise mapping will accomplish this goal efficiently without having to go through formal partial deletion procedures.”