the cercla five-year review process—lessons learned at rocky mountain arsenal

Federal Facilities Environmental Journal/Autumn 2001 99

The CERCLA Five-Year Review Process—Lessons Learned at Rocky Mountain Arsenal

© 2001 John Wiley & Sons, Inc.

The CERCLA Five-YearReview Process—Lessons Learned atRocky MountainArsenal

Scott Perkins and Lee SnowhiteAs more U.S. Department of Defense (DOD) Comprehensive EnvironmentalResponse, Compensation and Liability Act (CERCLA) remediation sites ap-proach closure, the importance of properly conducting CERCLA five-year reviewswill increase. Relatively few DOD sites have been subject to a five-year review sofar, and less than a handful have been subject to a five-year review under the U.S.Environmental Protection Agency’s (EPA’s) new guidance. Since these reviewsare required to occur at certain sites into the indefinite future, conducting themproperly from the outset is critical. The assumptions and decisions made inconducting the first five-year review at a given site set the precedent for future five-year reviews, and mistakes made in format or content may be perpetuated insubsequent five-year reviews. This article provides a detailed accounting of howone of the DOD’s largest cleanup sites, Rocky Mountain Arsenal, conducted itsfirst five-year review in accordance with the new EPA guidance. It provides alesson in cooperation among the DOD; the U.S. Fish and Wildlife Service; ShellOil Company; local, state, and federal regulators; and the public. This articlesimplifies the complex process of conducting a five-year review at a large cleanupsite and clarifies objectives. Finally, the article provides recommendations to helpother facilities properly conduct a five-year review the first time so the process issimpler in the future. © 2001 John Wiley & Sons, Inc.

INTRODUCTIONRocky Mountain Arsenal (RMA) is a Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA) cleanup sitebeing remediated through a coordinated effort by the U.S. Army, U.S.Fish and Wildlife Service (USFWS), and Shell Oil. This multibillion-dollar cleanup is scheduled to last until 2011 and is being performed bya multitude of contractors and subcontractors. An oversight partnershiphas been developed at RMA to facilitate the implementation of theremedy and the transfer to a National Wildlife Refuge. The Army,

Scott Perkins and Lee Snowhite work for Foster Wheeler Environmental Corporation at RockyMountain Arsenal, where they facilitate environmental compliance.* Work performed by Perkinswas performed while employed by Argonne National Laboratory.

100 Federal Facilities Environmental Journal/Autumn 2001

Scott Perkins and Lee Snowhite

USFWS, and Shell have agreed to jointly manage these operations. Whilethe Army remains the lead agency, all three groups have an equal say inthe management of the site.

Section 121(c) of CERCLA, as amended by the Superfund Amend-ments and Reauthorization Act of 1986, together with the implementingregulation in the National Oil and Hazardous Substance PollutionContingency Plan, require that remedial actions resulting in any hazard-ous substances, pollutants, or contamination remaining at the site abovelevels that allow for unlimited use and unrestricted exposure be re-viewed every five years to assure protection of human health and theenvironment. Since RMA has long-term groundwater treatment sys-tems, as well as several capped land disposal units, these periodicreviews are to occur at RMA every five years during and after remedyimplementation. The Army is the lead agency performing the review.The review was conducted from October 1999 through July 2000 andcovered the preceding five-year period.

HISTORY OF ROCKY MOUNTAIN ARSENAL (RMA)Rocky Mountain Arsenal (RMA) consists of more than 17,000 acres of

land located just outside Denver, Colorado. It operated as a chemicalmunitions production facility from 1942 until 1982. During this period,portions of the installation were leased to various commercial opera-tions, including Shell Oil Company, that used the production facilitiesto manufacture pesticides and other commercial products. Since the1980s, RMA has been the focus of an aggressive program of soil andgroundwater contamination cleanup. Contaminated sites included un-lined and lined lagoons and basins containing liquid waste, open burn-ing and detonation areas, two large industrial complexes, and landfillsthat received both liquid and solid wastes. In 1984, the Army completeda preliminary assessment and site inspection pursuant to CERCLA thatidentified 179 potentially contaminated sites. Subsequently, the site wasadded to the National Priorities List and broken into two operable units(OUs). The Army has completed 14 emergency responses at 17 sites, andfive groundwater extraction and treatment systems have been installed.In 1996, the On-Post Record of Decision (ROD) identified 31 implemen-tation projects, including the demolition of more than 100 structures,construction of two hazardous waste landfills, continued treatment ofgroundwater, and encapsulation of contaminated soil. The Off-PostROD, finalized in 1995, identified several additional remedial projectsand primarily addressed contaminated groundwater off-site. Currently,two primary operations are ongoing at RMA: the implementation of theremedy and the transfer of the installation to a National Wildlife Refugein accordance with the RMA National Wildlife Refuge Act.

EPA FIVE-YEAR REVIEW GUIDANCE AS IT RELATES TO RMAThe U.S. Environmental Protection Agency (EPA) has issued several

guidance documents for conducting five-year reviews. A series of earlyEPA Office of Solid Waste and Emergency Response (OSWER) direc-

Since the 1980s, RMA hasbeen the focus of anaggressive program ofsoil and groundwatercontamination cleanup.



tives issued in the early 1990s provided guidance that was ambiguousand fairly broad.1 While this guidance provided for flexibility in conduct-ing five-year reviews, it opened the door to conflicts between involvedparties as a result of the uncertainties regarding report content. In 1999,the EPA issued new draft guidance that superceded the old OSWERdirectives.2 This guidance was very explicit and provided details regard-ing report structure and content. While this guidance was not final at thetime that RMA was scheduled to begin its five-year review, all partiesinvolved agreed to use the new draft guidance document because futurereviews would also be conducted under this guidance.

The new EPA guidance states that five-year reviews are intended todetermine whether the implementation of the remedy at a site is protec-tive of human health and the environment and whether it will remainprotective when complete. For elements of the remedy that are underconstruction or have not yet begun, the purpose of the review is toconfirm that immediate threats have been addressed. The EPA guidancestates that “the main purpose of the Five-Year Review is not to reconsiderdecisions made during the selection of the remedy, but to evaluate theimplementation and performance of the selected remedy.”3

COORDINATED INCLUSIVE APPROACHBecause of the high visibility that RMA has within the community and

with the regulatory agencies, it was deemed critical that the review beconducted in as open a fashion as practical. While EPA guidance states thatat federal facilities the lead agency is required to coordinate the reviewwith the EPA, the Army decided to go one step further and invite all localregulatory agencies to participate. A working group was chartered thatwas chaired by the Army but included representatives from the EPA, theColorado Department of Public Health and Environment (CDPHE), theTri-County Health Department, Shell Oil Company, and the USFWS. Thisteam also included representatives from various divisions at RMA, in-cluding the legal affairs group, public relations, planning and controls,engineering, health and safety, quality assurance, and environmentalcompliance. By chartering this team under the site program manager,senior management ensured the utmost cooperation among the variousgroups involved. To ensure continued involvement of top-level manage-ment, briefings were conducted with the RMA Senior Management Group(top managers from USFWS, Army, and Shell) and with the Steering andPolicy Committee (which includes the EPA regional administrator, thedirector of CDPHE, the Army deputy for environment, safety, and occu-pational health, and a vice president of Shell).

In addition to involving the regulatory agencies, the Army decided toinvolve the public to a higher degree than established by EPA guidance.The EPA suggests only that the public be informed at the beginning of thereview and then be informed of the conclusions reached at the end of thereview. The Army went a step further to ensure the public was ad-equately appraised of the review process and was given ample opportu-nity to comment. At the beginning of the review process, a public notice

. . . the Army decided toinvolve the public to ahigher degree thanestablished by EPAguidance.



was posted in local newspapers giving notice that the review was aboutto commence and soliciting input about any issues the public felt shouldbe included in the review. In addition, a presentation was made to theRMA Restoration Advisory Board (RAB) and the Site-Specific AdvisoryBoard (SSAB), briefing them on the review’s anticipated content andsoliciting input. Toward the conclusion of the review, when draft conclu-sions had been drawn, a second presentation was made to the RABadvising members of the status of the review and the tentative conclu-sions drawn. A second public comment period was opened, and addi-tional notices were placed in local newspapers. All members of thepublic who submitted comments at the beginning and toward the end ofthe review received individual responses from the Army to assure themthat their input was important and would be incorporated into theprocess. These comments, with the Army’s responses, were included asan appendix in the final report. Finally, when the EPA concurred withthe five-year review report, a final notice was posted in local papers, thereport was made available to the public, and an additional presentationwas made to the RAB.

By involving all parties from the beginning of the process, the Armyensured that important and potentially contentious issues would beaddressed early and receive the appropriate level of attention. Senior-level managers were encouraged to provide input up front to ensure thatlast-minute problems that would delay issuance of the report would notarise. The public was fully drawn into the process, and all commentsreceived individual attention. These steps ensured that the projectwould remain on schedule while guaranteeing that the five-year reviewreport would address all relevant issues in a full and inclusive manner.

STRUCTURE OF THE REVIEWBecause the remedy at RMA is so complex, one of the difficult decisions

to make was how to organize the review and format the report. It wasrecognized that this decision would provide the template for all futurefive-year reviews. Therefore, a significant amount of discussion wasdedicated to this issue. Proposals included evaluating the remedy on asite-wide basis by media (e.g., soil, groundwater, structures); on a project-specific basis by media (e.g., groundwater at Project A, air at Project B); byOperable Unit (Off-Post OU versus On-Post OU); or by project status (e.g.,complete, ongoing, not yet begun). In the end, a combination of theseapproaches was selected. While the On- and Off-Post RODs identify 35key components of the remedy, a detailed evaluation of the two RODsrevealed that there are actually 98 “projects” identified. These range fromcore remedy components like “Build a Hazardous Waste Landfill” and“North Plants Structure Demolition and Removal,” to ongoing monitor-ing operations like “Develop a Groundwater Monitoring Program” andadministrative tasks such as “Establish a Trust Fund.”

On the basis of EPA guidance, and after extensive meetings with allinvolved parties, including the regulators, the following structure for thereview was adopted:

Because the remedy atRMA is so complex, oneof the difficult decisionsto make was how toorganize the review andformat the report.



Section 1.0, Introduction—Provides the legal basis and objectivesof the review and describes the report’s structure.Section 2.0, Site Chronology—Provides a chronology of pastevents at RMA.Section 3.0, Background—Provides historical information onRMA, including a description of past operations, lists of chemicalsof concern, and information on current and future land use.Section 4.0, Remedial Actions—Provides a list of components ofthe remedy in the On-Post and Off-Post OUs as provided in theOn-Post and Off-Post RODs; a list of interim response actions(IRAs); and a table listing individual projects that make up theremedy. The list of 98 projects was developed solely for thepurpose of the five-year review, to provide a clear structure bywhich to evaluate the remedy.Section 5.0, Five-Year Review Process—Provides a list ofparticipants in the five-year review process and details theapproach taken in performing this review.Section 6.0, Five-Year Review Findings—Details the findings ofthe five-year review. It includes a section evaluating changes toregulations and standards that apply to the remedy; a sectionreviewing data collected in the groundwater, surface water,biota, and air monitoring programs; and a section summarizingremedy costs.Section 7.0, Assessment—Uses information provided in Section6.0, as well as additional information gathered in the reviewprocess, to answer two key questions.

Section 7.1, Answers the question “Is the remedy functioningas intended by the decision documents?” It includes areview of steps taken to control risk on-site and a review ofall completed and operational projects. It also includesinformation on remedy optimization and an evaluation ofpotential remedy failure.

Section 7.2 Answers the question “Are the assumptionsused at the time of the remedy selection still valid?” Itincludes a review of risk assessment assumptions, as well asa discussion of the impacts from the changes in regulationsand standards as described in Section 6.0.

Section 8.0, Conclusions—Provides a succinct statement of theconclusions drawn in Section 7.0, based on information detailedin both Sections 6.0 and 7.0.Section 9.0, Recommendations and Follow-up Actions—Detailsfollow-up actions necessary to address the conclusions stated inSection 8.0. It includes specific timelines and identifies responsibleparties for accomplishing these actions.Section 10.0, Protectiveness Statements—Provides protectivenessstatements for both the On-Post and Off-Post OUs. The text of thissection is gathered from suggested language provided in the EPAguidance and then tailored to the site-specific conditions at RMA.

The list of 98 projectswas developed solely forthe purpose of the five-year review, to provide aclear structure by whichto evaluate the remedy.



Section 11.0, Next Review—Details when the next five-yearreview is scheduled to take place. This is based on a timeline thatstarts when the EPA provides their formal letter of concurrence.

Sections 6.0 (Five-Year Review Findings) and 7.0 (Assessment) con-tain the bulk of the language that actually evaluates the state of theremedy. Section 6.0 contains a risk information review, a data review,and a section addressing remedy costs. The risk information reviewincludes a discussion of all applicable or relevant and appropriaterequirements (ARARs) and to-be-considered criteria (TBC) that areidentified in the RODs. More than 100 regulatory citations and manyother risk-based standards were identified in the RODs as ARARs andTBC. Remedies are implemented on the basis of these regulations andstandards as they existed at the time the RODs were signed. Each TBCand ARAR had to be evaluated as it existed at the time of the review todetermine if there were any changes in the intervening years. For thosethat had changed, a determination was made as to whether the changewas more restrictive, and if so, whether the change could potentially callinto question the protectiveness of the remedy. When this was the case,a recommendation was made to adopt the new regulation or standard.To conduct this ARAR comparison, it was critical to define a “cutoffdate.” It was agreed that March 31, 2000, would be the cutoff date forevaluating the status of the ARARs and TBC. Any changes beyond thatdate would be addressed in the next five-year review.

The data review portion of Section 6.0 evaluated all data collectedover the previous five-year period, including data generated through thesite-wide groundwater, surface water, air, and biota monitoring pro-grams. These data were evaluated to determine whether they indicatedpotential threats to human health or the environment and whether theyindicated that the remedy was performing as required under the RODs.

The remedy cost portion of Section 6.0 was included at the request ofthe regulators and was a brief summary of costs to date. These figureswere compared with expected costs. They reflected that the overallimplementation of the remedy was on schedule from a cost perspective.The EPA guidance suggests that this information be included, as it canindicate potential problems with remedy implementation and subse-quent adverse impacts on human health or the environment. For ex-ample, if projected costs are exceeded by a significant amount, then itcould indicate that the remedy implementation has not been progressingsmoothly and that further investigation is necessary.

Section 7.0 answers two fundamental questions posed by the EPAguidance. The first question is stated in the EPA guidance as “Is theremedy functioning as intended by the decision documents?” To answerthis question, each of the 98 projects was reviewed to a level of detailappropriate to the project’s level of completion. Projects that werecompleted, ongoing (e.g., the site-wide groundwater monitoring pro-gram), in operations and maintenance status (e.g., one of the long-termgroundwater pump-and-treat systems), or operational (e.g., the hazard-

It was agreed that March31, 2000, would be thecutoff date for evaluatingthe status of the ARARsand TBC. Any changesbeyond that date wouldbe addressed in the nextfive-year review.



ous waste landfill) received more scrutiny during the review thanprojects that were either under construction or had not yet begun.Projects under construction or that had not yet begun were evaluatedonly to determine whether short-term risks to human health and theenvironment had been adequately addressed. For example, the securitysystem in place to prevent access by unauthorized persons was evalu-ated. Again, as before, it was critical that a definitive cutoff date wasagreed upon as the basis for determining the status of each project. Forthe purposes of this review, a March 31, 2000, date was used. This choiceallowed approximately eight months to evaluate the projects and issuethe report in time to meet the five-year deadline for completion.

The second fundamental question answered by Section 7.0 is stated bythe EPA guidance as “Are the assumptions used at the time of the remedyselection still valid?” To answer this question, the original assumptionsthat went into the site risk assessments were evaluated to determinewhether they were still valid. Also, the results of the aforementionedARARs review were evaluated. Again, all involved parties agreed to acutoff date of March 31, 2000. Recent toxicological studies that hadrelevance to this evaluation had been conducted in the spring of 2000 andwere included, even though the final report had not been finalized by thecutoff date. This flexibility on the Army’s behalf served to maintain a goodworking relationship with the regulatory agencies involved and showeda good-faith effort to conduct as thorough a review as possible.

This validation process for the original assumptions that went into theremedy selection process can potentially contradict the EPA’s statementthat the five-year review is not intended “to reconsider decisions madeduring the selection of the remedy.” 4 Scientific assumptions that weremade to conclude that one technology is preferable over a second couldbe questioned during this process. This could result in the conclusionthat the chosen technology may not be sufficiently protective andultimately result in the ROD being reopened. While this is rare, perform-ers of five-year reviews should be aware of the possibility.

CONCLUSIONS REACHED AND RECOMMENDATIONS MADEAs a result of the thorough evaluation of each of the projects, the

underlying assumptions, ARARs, TBC, and site-wide media monitoringprograms, a general conclusion was reached. This conclusion was thatthe remedy, as currently being implemented, was protective of humanhealth and the environment, was in accordance with the RODs, and wasfully expected to be protective of human health and the environmentonce complete. The language used in the final report was adopted fromthe suggested language contained in the new EPA guidance and thentailored to fit the specific circumstances at RMA.

In addition to this general conclusion, eight specific conclusions withassociated recommendations were included. Six of these were intendedto optimize the performance of the remedy and were not associated withany known deficiencies. The remaining two were associated with defi-ciencies that were discovered. It was determined that neither of these

This validation processfor the originalassumptions that wentinto the remedy selectionprocess can potentiallycontradict the EPA’sstatement that the five-year review is notintended “to reconsiderdecisions made during theselection of the remedy.”



deficiencies called into question the protectiveness of the remedy, be-cause both of them were related to the effectiveness only one of severallevels of redundant protective systems. The deficiencies were addressedto ensure that redundant protective systems would work effectively andthat future remedial actions would remain as protective as possible. Foreach of the eight specific recommendations, the identity of the individualresponsible for implementation of the recommendation, and a manda-tory timeline for implementation, were included.

LESSONS LEARNEDSeveral valuable lessons were learned in conducting the five-year

review at RMA. First and foremost was that including both the commu-nity and all regulatory agencies was a tremendously effective means foridentifying potential problems early in the process. An honest andinteractive relationship between the Army and the regulators, as well asbetween the Army and the community, assists all parties involved withmeeting their goals. For the Army, this goal is to meet legal obligationsto involve the public, stay on schedule, and conduct a five-year reviewthat fully evaluates all necessary issues.

In addition to including the regulators and the community in theprocess, it was important to involve all levels of employees on site in theprocess. The further the review progressed, the more obvious it becamethat it was important to include everyone from the program manager tothe security guards. Representatives from all divisions and companieswere contacted to participate to some degree in the review. A five-yearreview is not something to be done by an individual. It requires amultidisciplinary team familiar with all aspects of site operations. Thereis, however, a cost associated with conducting a five-year review to thislevel of detail. At RMA it was decided that the benefits associated witha comprehensive review of this nature far outweighed the costs. Benefitsincluded assuring the public and the regulators that the remedy wasbeing properly implemented; minimizing the chances of spending post-review time and effort convincing regulators and the public that thereview was done properly; and identifying operational changes thatwould optimize the remedy by increasing effectiveness while decreas-ing unnecessary costs.

The final important lesson learned relates to the importance of settingdiscrete cutoff dates, especially at a remediation site where constructionis ongoing. Cutoff dates were established for the evaluation of changingregulations, for the consideration of newly generated scientific docu-ments, for the evaluation of site-specific projects, and for the consider-ation of newly generated monitoring data. It was critical to the successof this review to not only have all regulatory agencies agree to the cutoffdates, but to allow them to assist in setting the dates. Equally importantwas the clear communication of the need for these dates to the public,because members of the public are generally unaware of how quicklythings change in the environmental industry, not to mention at a large,complex construction site.

. . . including both thecommunity and allregulatory agencies was atremendously effectivemeans for identifyingpotential problems earlyin the process.



CONCLUSIONThe first five-year review under CERCLA at RMA was successfully

accomplished as a result of the inclusive approach taken, the reliance onthe expertise of a wide pool of individuals, and the application of anagreed-upon structured approach. The 15-month project aggressivelysought input from regulators and community members. The complexremedy implemented at RMA was systematically broken down into 98projects, and these projects were grouped on the basis of their degree ofcompletion. The degree of completion dictated the level of review. Acomprehensive review of ARARs and TBC, as well as the initial riskassessment assumptions, complemented the review of the individualprojects. Conclusions were drawn, and recommendations with associatedtimelines were made. The approach taken can serve as a template for otherDOD facilities and is a successful model of cooperation among the Army,the community, the regulatory agencies, and other involved parties. ❖

NOTES1. EPA OSWER Directive 9355.7-02, Structure and Components of Five-Year Reviews(May 23, 1991); EPA OSWER Directive 9355.7-02A, Supplemental Five-Year ReviewGuidance (July 26, 1994); EPA OSWER Directive 9355.7-03A, Second Supplemental Five-Year Review Guidance (December 21, 1995).

2. EPA OSWER Directive 9355.7-03B-P, Draft, Comprehensive Five-Year Review Guidance(October 1999).

3. Id.

4. Id.

the cercla five-year review process—lessons learned at rocky mountain arsenal

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