CERCLA Five-Year Reviews

What is it?
The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) requires that a review of remedial actions be conducted for all sites where a Record of Decision (ROD) or Decision Document (DD) allows hazardous substances, pollutants, or contaminants to remain in place above levels that allow for unlimited use or unrestricted exposure (UU/UE) to those hazardous substances, pollutants or contaminants. A review is also required for a site if the remedial action will result in UU/UE but will not achieve it within five years. The initial five year review is required no later than five years from the start of remedial action construction (or the signature date of the Record of Decision/Decision Document if there is no construction phase). Subsequent five year reviews are triggered from the original due date of the previous FYR, rather than the signature date.

The objective of the review is to evaluate the implementation and performance of a remedy to determine if the remedy: (1) Continues to, or will meet, the remedial action objectives specified in the ROD/DD, and (2) Is, or will be, protective of human health and the environment. This requirement applies to cleanup at Army active duty, reserve and guard installations and Base Realignment and Closure (BRAC) installations addressed under CERCLA, regardless of National Priority List (NPL) status.
What has the Army done?
The Army addresses the following questions in a five-year review to assess remedy protectiveness:
- Is the remedy functioning as intended by the decision documents?
- Are the exposure assumptions, toxicity data, cleanup levels, and remedial action objectives used at the time of the remedy selection still valid?
- Has any other information come to light that could call into question the protectiveness of the remedy?
The U.S. Army Environmental Command (USAEC) is the Army program manager for five-year reviews. USAEC centrally initiates upcoming reviews with a cross-functional team supporting the Installation approximately eighteen months in advance of the report due date. The ROD/DD, start of remedial construction, and five-year review due dates are recorded in the Headquarters Army Environmental System (HQAES) database of record and data are used to prepare the Defense Environmental Program Annual Report to Congress (DEPARC). USEPA’s Superfund Enterprise Management System (SEMS) database also maintains five year review due dates. Installations identify their five-year review requirements in their Cost-to-Complete, Installation Action Plan, and data submissions.

Generally, all sites on an installation requiring five-year reviews are reviewed concurrently. However, separate reviews may be conducted for large or complex sites where operable units (OUs), or groups of OUs, have been treated as individual sites during the remedial process or for non-CERCLA sites. As new sites complete remedy decisions and trigger the need for a five year review, they will be consolidated into existing review schedules for efficiency where ever practicable, which means some sites may be reviewed in advance of the requirement in order to facilitate the initial consolidation.

The U.S. Army Corps of Engineers Directorate of Environment and Munitions Center of Excellence (EM CX) provides independent quality assurance reviews of the five-year reviews for installations funded by the Environmental Restoration, Army (ER,A) account and BRAC sites; however each chooses the executor for conducting the reviews.

Army five-year reviews include background document reviews, a site visit, data analysis on contaminant levels, a report, and community notification at the start and conclusion of the review. Information commonly reviewed includes documents addressing the basis for the response action, implementation of the response, operations and maintenance, remedy performance, legal documentation and community involvement. The DERP guidance directs the Army to be consistent with the analytical framework found in the EPA document “Comprehensive Five-year Review Guidance” dated July 17, 2001 and supplements to that guidance, as directed by DoD and Army policy. One exception is that the Jan 20, 2016 EPA report template has NOT been fully adopted by DOD.

The five-year review report must contain a signed determination by the Installation Commander, or BRAC designee that a selected remedy is or is not protective of human health and the environment. If upon consideration of all issues identified during the assessment, the five-year review determines that a remedy is no longer protective, then the five-year review report includes recommendations concerning the steps necessary to achieve long term protectiveness. Recommendations also include a timeframe for completion and are captured and tracked in the USEPAs SEMS database. Lead (Army) and support agencies (USEPA and the State agency as appropriate) work together throughout the five-year review process to ensure that concerns are resolved in a timely manner, and to the extent practicable, prior to finalizing the Five-Year Review report. The goal is to resolve any concerns of support agencies before drafting the final report. USEPA will either concur with the final Federal agency or department protectiveness determination, or USEPA may provide independent findings. Disputes which arise related to protectiveness determinations or independent findings by USEPA may be resolved on a site-specific basis through formal dispute resolution procedures, typically established in Federal Facility Agreements (FFAs).

The Army, as the lead agency, submits a copy of the final Five-Year Review report to the USEPA Region. The Army is also responsible for conducting community involvement activities and for ensuring that recommendations and follow-up actions identified during five-year reviews are completed. Where active, a Restoration Advisory Board (RAB) /Technical Review Committee (TRC), must be apprised of an upcoming five-year review, including the scope, conclusions reached, and where and when the final report may be viewed. Whether there is an active RAB or not, the installation must announce via newspaper of largest general circulation when a CERCLA five-year review begins and when it has been completed.
What does the Army have planned?
The USAEC five-year review program will continue to monitor cleanup progress at each Installation and track recommendations identified in previous reviews. Recommendations typically involve (1) providing additional response actions; (2) improving O&M activities; (3) enforcing access controls and LUC/ICs; (4) conducting additional studies or investigations; and/or (5) optimizing the remedy.

As of June 2014, DOD M 4715.20 identifies that the initial five year review is required no later than five years from the start of remedial action construction (or the signature date of the Record of Decision/Decision Document if there is no construction phase). Sites with ROD/DDs signed after Jun 2014 will complete reviews consistent with this requirement. Subsequent five year reviews are triggered from the original due date of the previous FYR rather than the signature date. USAEC will continue to work with the cross functional Installation support teams on the planning, document gathering, site visits, report preparation and review, and community involvement. This process will continue according to law until such time the site achieves UU/UE.

If a response is being conducted under an authority other than CERCLA, a five year review is not required. Periodic reviews required under a permit or otherwise defined procedure, permit procedures will be followed. Periodic reviews not required by a permit or other DD will be programmed at the Army’s convenience, consistent with available resources pursuant to Army Regulation 200-1 and DOD M 4715.20. Periodic reviews do not require community notification, and regulatory agencies have no responsibilities as the support agency.
Why is this important?
Five-year reviews are important for several reasons. First, it helps the public and the Army be aware of cleanup progress and additional action necessary to ensure long term protectiveness. Second, it gives the Army an opportunity to look at the cleanup long-term, possibly identifying ways to clean up or use energy more efficiently. Finally, the Army must comply with the CERCLA law, DoD and Army policy, and guidance.
Read more about it:
- ARMY POLICY: https://denix.osd.mil/derp/policy/unassigned/5-year-review-june-2-2014/
- DOD MANUAL 4715.20, Defense Environmental Restoration Program (DERP) Management: https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/471520m.pdf
- U.S. EPA Five-Year Reviews: https://www.epa.gov/superfund/writing-five-year-reviews-superfund-sites#sub_anchor
- U.S. EPA SEMS Listing: https://www.epa.gov/superfund/superfund-data-and-reports
FAQs
1. Are five year reviews required for non-CERCLA sites?
  If a response is being conducted under an authority other than CERCLA, a five year review is not statutorily required. However, in these cases, the DoD Component is encouraged to coordinate with counsel and the governing authority to determine if there is another review requirement. Periodic reviews not required by a permit or other DD will be programmed at the Army’s convenience, consistent with available resources pursuant to Army Regulation 200-1 and DOD M 4715.20
2. If an Installation has both CERCLA and non-CERCLA sites, are they included in the same report?
  No. CERCLA five-year reviews and periodic reviews are prepared as separate reports because regulatory support agency review and community notification is not required.
3. Is the report due five years from the signature date of the prior review?
  Not necessarily. Prior to 2014, there were different initial triggers for DOD FYRs. USAEC largely implemented the initial triggering event as the date of the ROD, and subsequent reports no later than five years from the signature date of the 5YR report. Thus, if the initial trigger event was in April 1989, the 5YRs were due April 1994, 1999, and so on. However, if the first five year review was not completed until Jun 2003, the cycle erroneously reset and adjusted for the next due date of Jun 2008 (and then every five years from the prior report thereafter). USEPA supplemental guidance “Program Priorities for Federal Facility FYRs” issued Aug 1, 2011 requires subsequent federal facility FYRs triggered from the original due date of the previous FYR rather than the signature date for all FYRs. Thus, if a federal facility FYR was signed on July 30, 2015, but it was due on July 30, 2014, the next would be due on July 30, 2019. All sites triggering a remedy review after Jun 2014 follow the Army policy that the DoD Component will complete the first five-year review no later than 5 years after the start of remedial action construction or signature date of the ROD where construction is not required. Subsequent five year review reports shall be signed by the responsible DoD official no later than five years after the signature date of the previous five-year review report. There may be some legacy prepared reports that indicate the erroneous due date from the late signature, which will be corrected in the next review cycle.
4. How long before the report is due is the site inspection completed?
  Generally, the five-year review process begins eighteen months before the scheduled completion date to allow sufficient time for document collection, review and analysis, interviews, site inspection, and adequate review time allowances for support agencies.The site inspection is generally conducted no more than nine months prior to the scheduled completion date to ensure it is reflective of site conditions at the time of the signing of the report, but also provides sufficient time for compilation of results and support agency review.
5. How are emerging chemicals of concern addressed in a five year review?
  It depends.If there is a confirmed presence of an emerging chemical at a site undergoing a five year review, and the chemical is associated with the operations that led to the original release for which a remedial action was taken, emerging chemicals are evaluated as part of the five year review.The evaluation falls under the second question that addresses validity of the exposure assumptions, toxicity data, cleanup levels, and remedial action objectives used at the time of the remedy selection.If there is not a confirmed presence at a site undergoing a five year review, or associated with the operations that led to the original release for which a remedial action was taken, no new information has come to light that could call into question the protectiveness of the remedy, therefore, evaluation of emerging chemicals is not required in the report.
6. If issues and recommendations are identified in the report, are people at risk of being exposed to hazards?
  There are five categories of protectiveness that are considered during the review and only one of the categories indicates an exposure potential.
  - A conclusion of “Not Protective” indicates human and/or ecological receptors are at risk of being exposed to hazards. The Installation Commander and USEPA are responsible to develop a plan to make the remedy protective.
  - A conclusion of “Protectiveness Deferred” indicates there is not enough information to support a determination at this time and milestone dates will be established to collect the additional information.A report addendum will be issued at a later date that provides the protectiveness determination upon consideration of the additionally collected information.
  - A conclusion of “Will be Protective” or “Protective in Short Term” indicates ongoing actions are necessary to ensure future/long term protectiveness, but human and ecological exposures are currently under control and no unacceptable risks are occurring.
  - A conclusion of “Protective” means remedies are successfully meeting the short and long term remedial action objectives and nothing calls into question protectiveness of the remedy.
  Additional information on protectiveness determinations can be found in USEPA Guidance, “Clarifying the Use of Protectiveness Determinations for Comprehensive Environmental Response, Compensation, and Liability Act Five Year Reviews” dated September 13, 2012 https://semspub.epa.gov/work/HQ/174829.pdf
7. Once UU/UE is achieved, how is the site closed out from future five year review reporting?
  Sites that have achieved UU/UE since the last signed review are documented in the “Progress since Last Review” section. A sentence is also added to the “Next Review” section, indicating no further five-year reviews are planned for the Site because all site-impacted media have reached unlimited use/unrestricted exposure. This ensures the support agencies and public are afforded the opportunity to review and comment before removing from future reporting.