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      I  hope  these model  provisions win help you in quickly
 concluding the negotiations you are currently conducting with
 DOD,  and  that such negotiations will now become more routine.  If
 you have  any questions about  these provisions or their
 implementation, please contact Christopher Grundler, Director of
 the Federal  Facilities Compliance Task Force, OWPE, at 475-9801.
 Task  Force staff is  available to support your negotiations, or
 to ans- rr questions  which may come up relating to the model
 provisions.

      I  look  forward  to working with you as we continue to work
 toward  making Federal facility environmental compliance a model
-for others.

 Attachment

 cc:   Lee  Thomas, EPA
      Jim  Barnes, EPA
      William H. Parker,  III,  DOD
      Ernest  Baynard, DOE
      Roger Marzulla, DOJ
      Tom  Adams, OECM
      Lawrence Jensen, OGC
      Jennifer Joy Wilson, OEA
      Waste Management Division Directors

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           REGION 	
                            AND THE
               [STATE/COMMONWEALTH OF 	*]
                            AND THE
                 UNITED STATES [DOD COMPONENT]
IN THE MATTER OF:               )
                                )
The U.S. [DOD Component's]      )     FEDERAL FACILITY
                                )     AGREEMENT UNDER
                                )     CERCLA SECTION 120
 [NAME OF FACILITY]             )
                                )     Administrative
                                )     Docket Number:


     Based on the information available to the Parties on the

effective date of this FEDERAL FACILITY AGREEMENT  (Agreement),

and without trial or' adjudication of any issues of fact or law,

the Parties agree as follows:
     [*   DOD and U.S. EPA agree that it is extremely important
that states participate in Federal facility cleanups by joining
as a Party to these agreements.  DOD and U.S. EPA have not
attempted to negotiate on behalf of the states in developing
these model provisions.  DOD and U.S. EPA recognize that state
concerns and issues must be addressed at site-specific
negotiations and factored into this agreement as appropriate.]

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                             JURISDICTION

        Each Party is entering into this Agreement pursuant to   ^^
the following authorities:
      (i)  The U.S. Environmental Protection Agency (U.S. EPA),
Region 	,  enters into those portions of this Agreement that
relate to the remedial investigation/feasibility study (RI/FS)
pursuant to Section 120(e)(1) of the Comprehensive Environmental
Response,  Compensation, and Liability Act (CERCLA),
42 U.S.C.  § 9620(e)(l), as amended by the Superfund Amendments
and Reauthorization Act of 1986 (SARA), Pub. L. 99-499
(hereinafter jointly referred to as CERCLA/SARA or CERCLA) and
[Sections 6001, 3008(h) and 3004(u) and (v) of] the Resource
Conservation and Recovery Act (RCRA), 42 U.S.C. [§§ 6961,
6928(h), 6924(u) and (v),] as amended by the Hazardous and Solid
Waste Amendments of 1984  (HSWA)(hereinafter jointly referred  to
as RCRA/HSWA or RCRA) and Executive Order 12580;
     (ii)  U.S. EPA, Region 	, enters into those portions of
this Agreement that relate to interim remedial actions and final
remedial actions pursuant to Section 120(e)(2) of CERCLA/SARA,
[Sections 6001, 3008(h) and 3004(u) and (v) of] RCRA and
Executive Order 12580;
     (iii) the  [DOD Component]  enters into  those  portions of  this
Agreement that relate to  the RI/FS pursuant to Section  120(e)(l)
of CERCLA, [Sections 6001, 3008(h) and 3004(u) and(v) of] RCRA,
Executive Order 12580, the National Environmental Policy  Act, 42
U.S.C. §4321, and the Defense Environmental Restoration Program
(DERP), 10 U.S.C. §2701 fi£ sea.;

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      (iv) the  [DOD Component] enters into those portions of this
Agreement that relate to interim remedial actions and  final
remedial actions pursuant to Section 120(e)(2) of CERCLA/SARA
[Sections 6001, 3004(u) and 3008(h) of] RCRA, Executive Order
12580 and the DERP.

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                               PURPOSE

     A.  The general purposes of this Agreement'are to:
          (1)  ensure that the environmental impacts associated
with past and present activities at the Site are thoroughly
investigated and appropriate remedial action taken as necessary
to protect the public health, welfare and the environment;
          (2)  establish a procedural framework and schedule for
developing,  implementing and monitoring appropriate response
actions at the Site in accordance with CERCLA/SARA, the NCP,
Superfund guidance and policy, RCRA, RCRA guidance and policy;
and,
          (3)  facilitate cooperation, exchange of information and
participation of the Parties in such actions.

     B.  Specifically, the purposes of this Agreement are to:
          (1)   Identify Interim Remedial Action (IRA)
alternatives which are appropriate at the Site prior to the
implementation of final remedial action(s) for the Site.  IRA
alternatives shall be identified and proposed to the Parties as
early as possible prior to formal proposal of IRAs to U.S. EPA
pursuant to CZRCLA/ SARA.  This process is designed to promote
cooperation among the Parties in identifying IRA alternatives
prior to selection of final  IRAs.
          (2)   Establish requirements for the performance of  a RI
to determine fully the nature and extent of the threat  to the
public health or welfare or  the environment caused by the

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release and threatened release of hazardous substances,
pollutants or contaminants at the Site and to establish
requirements for the performance of a FS for the Site to
identify, evaluate," and select alternatives for the appropriate
remedial action(s) to prevent, mitigate, or abate the release or
threatened release of hazardous substances, pollutants or
contaminants at the Site in accordance with CERCLA/SARA.
          (3)  Identify the nature, objective and schedule of
response actions to be taken at the Site.  Response actions at
the Site shall attain that degree of cleanup of hazardous
substances, pollutants or contaminants mandated by CERCLA/SARA.
          (4)  Implement the selected interim and final remedial
action(s) in accordance with CERCLA and meet the requirements of
Section I20(e)(2) of CERCLA for an interagency agreement between
U.S. EPA and the  [DOD Component].
          (5)  Assure compliance, through this Agreement, with
RCRA and other federal and state hazardous waste laws and
regulations for matters covered herein.
          (6)  Coordinate response actions at the Site with the
mission and support activities at  [installation].
          (7)  Expedite the cleanup process  [including, at site-
specific negotiations, shortening the time frames specified  in
these model provisions] to the extent consistent with protection
of human health and the environment.

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             STATUTORY  COMPLIANCE/RCRA-CERCLA INTEGRATION
     A.   The Parties intend to integrate the [DOD Component]'s
CERCLA response obligations and RCRA corrective action
obligations which  relate to the release(s)  of hazardous
substances, hazardous wastes, pollutants or contaminants covered
by this Agreement into this comprehensive Agreement.   Therefore,
the Parties intend that activities covered by this Agreement will
be deemed to achieve compliance with CERCLA, 42 U.S.C. §9601 e_£
seq.; to satisfy the corrective action requirements of Sections
3004(u) and (v) of RCRA, 42 U.S.C. §6924(u)  and (v) ,  for a RCRA
permit, and Section 3008(h), 42 U.S.C. §6928(h), for interim
status facilities; and to meet or exceed all applicable or
relevant and appropriate Federal and State laws and regulations,
to the extent required by Section 121 of CERCLA, 42 U.S.C. §9621.

     B.   Based upon the foregoing, the Parties intend that any
remedial action selected, implemented and completed under this
Agreement shall be deemed by the Parties to be protective of
human health and the environment such that remediation of
releases covered by this Agreement shall obviate the need for
further corrective action under RCRA  (i.e., no further corrective
action shall be required).  The Parties agree that with respect
to release* of hazardous waste covered by this Agreement, RCRA
shall be considered an applicable or relevant and  appropriate
requirement pursuant to Section 121 of CERCLA.

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     C.   The Parties recognize that the requirement to obtain
permits for response actions undertaken pursuant to this
Agreement shall be as provided for in CERCLA and the NCP.  The
Parties further recognize that on-going hazardous waste
management activities at the [installation] may require the
issuance of permits under Federal and State laws.  This Agreement
does not affect the requirements, if any, to obtain such permits.
However, if a permit is issued to the [DOD Component] for on-
going hazardous waste management activities at the Site, U.S. EPA
shall reference and incorporate any appropriate provisions,
including appropriate schedules  (and the provision for extension
of such schedules), of this Agreement into such permit.  The
Parties intend that the judicial review of any permit conditions
which reference this Agreement shall, to the extent authorized by
law, only be reviewed under the provisions of CERCLA.

     D.   Nothing in this Agreement shall alter the  [DOD
Component]'s authority with respect to removal actions conducted
pursuant to Section 104 of CERCLA, 42 U.S.C. §9604.

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                     CONSULTATION WITH U.S.  EPA
       Review and Comment  Process  for  Draft and .Final Documents

     A.  Applicability;
     The provisions of this Part establish the procedures that
shall be used by the [DOD Component] and U.S. EPA to provide the
Parties with appropriate notice, review, comment, and response to
comments regarding RI/FS and RD/RA documents, specified herein as
either primary or secondary documents.  In accordance with
Section 120 of CERCLA and 10 U.S.C. §2705, the [DOD Component]
will normally be responsible for issuing primary and secondary
documents to U.S. EPA.  As of the effective date of this
Agreement, all draft and final reports for any deliverable
document identified herein shall be prepared, distributed and
subject to dispute in accordance with Paragraphs B through J
below.
     The designation of a document as "draft" or "final" is
solely for purposes of consultation with U.S. EPA in accordance
with this Part.  Such designation does not affect the obligation
of the Parties to issue documents, which may be referred to
herein as "final", to the public for  review and comment as
appropriate and as required by  law.

     B.  General Process for RI/FS and RD/RA documents!
     1.  Primary documents include those  reports that are major,
discrete portions of RI/FS or RD/RA activities.  Primary
documents are initially issued  by the [DOD Component] in draft

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subject to review and comment by U.S.  EPA.   Following receipt of
comments on a particular draft primary document,  the [DOD
Component] will respond ^o the comments received and issue a
draft final primary document subject to dispute resolution.  The
draft final primary document will become the final primary
document either 30 days after the period established for review
of a draft final document if dispute resolution is not invoked or
as modified by decision of the dispute resolution process.
     2.  Secondary documents include those reports that are
discrete portions of the primary documents and are typically
input or feeder documents.  Secondary documents are issued by the
[DOD Component] in draft subject to review and comment by U.S.
EPA. Although the [DOD Component] will respond to comments
received, the draft secondary documents may be finalized in the
context of the corresponding primary documents.  A secondary
document may be disputed at the time the corresponding draft
final primary document is issued.

     C.  Primary Reports;
     1.  The [DOD Component] shall complete and transmit draft
reports for the following primary documents to U.S. EPA for
review and comment in accordance with the provisions of this
Part:
     [Note:  The list set forth below represents potential
primary documents and the type of information that typically
would be generated during a CERCLA cleanup at an NPL site.   This
list, and the list below of secondary documents, includes

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discrete portions of the RI/FS or RD/RA and are subject to change
in accordance with the NCP, [DOD Component] and U.S.  EPA
guidance, and site specific requirements.  In practice, the
documents will also"vary with scope and nature of the project,
and may either be combined or broken out into separate volumes.]
               1.  [Scope of Work]
               2.  [RI/FS Work Plan, including Sampling and
                   Analysis Plan and QAPP]
               3.  [Risk Assessment]
               4.  [RI Report]
               5.  [Initial Screening of Alternatives]
               6.  [FS Report]
               7.  [Proposed Plan]
               8.  [Record of Decision]
               9.  [Remedial Design]
               10. [Remedial Action Work Plan]
     2.  Only the draft final reports for the primary documents
identified above shall be subject to dispute resolution.  The
[DOD Component] shall complete and transmit draft primary
documents in accordance with the timetable and deadlines
established in Part 	 of this agreement.

     D.  Secondary Documents;
     1.  The [DOD Component] shall complete and  transmit  draft
reports for the following  secondary documents  to U.S.  EPA for

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review and comment in accordance with the provisions of this
Part:
               1.  [Initial Remedial Action / Data Quality
                   Objectives]
               2.  [Site Characterization Summary]
               3.  [Detailed Analysis of Alternatives]
               4.  [Post-screening Investigation Work Plan]
               5.  [Treatability Studies]
               6.  [Sampling and Data Results]
     2.  Although U.S. EPA may comment on the draft reports for
the secondary documents listed above, such documents shall not be
subject to dispute resolution except as provided by Paragraph B
hereof.  Target dates shall be established for the completion and
transmission of draft secondary reports pursuant to Part 	
of this Agreement.

     E.  Meetings of the Project Managers on Development of
Reports;
     The Project Managers shall meet approximately every [30]
days, except as otherwise agreed by the Parties, to review and
discuss the progress of work being performed at the site on the
primary and secondary documents.  Prior to preparing any draft
report specifled in Paragraphs C and D above, the Project
Managers shall meet to discuss t*ie report results in an effort to
reach a common understanding, to the maximum extent practicable,
with respect to the results to be presented  in the draft report.

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      F.   Identification  and Determination of Potential ARAR*;
      1.   For those primary reports or secondary documents that
                                               •«
 consist  of or  include ARAR determinations, prior to the  issuance
 of  a  draft report, the Project Managers shall meet to identify
 and propose, to  the  best of their ability, all potential ARARs
 pertinent to the report  being addressed.  Draft ARAR
 determinations shall be  prepared by the [DOD Component]  in
•accordance with  Section  121(d)(2) of CERCLA, the NCP and
 pertinent guidance issued by U.S. EPA, which is not inconsistent
 with  CERCLA and  the  NCP.
      2.   In identifying  potential ARARs, the Parties recognize
 that  actual ARARs can be identified only on a site-specific basis
 and that ARARs depend on the specific hazardous substances,
 pollutants and contaminants at a site, the particular actions
 proposed as a  remedy and the characteristics of a  site.  The
 Parties  recognize that ARAR identification is necessarily an
 iterative process and that potential ARARs must be re-examined
 throughout the RI/FS process until a ROD  is  issued.

      G.   Review  and  Comment on Draft Reports;
      1.   The  [DOD Component] shall complete  and transmit each
 dra£t primary  report to  U.S. EPA on or before  the corresponding
 deadline established for the  issuance of  the report.   The  [DOD
 Component] shall complete  and  transmit the draft secondary
 document in accordance with the  target dates established for the
 issuance of such reports established pursuant to Part 	 of
 this  Agreement.

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      2.  Unless the Parties mutually agree to another time
period, all draft reports shall be subject to a 30-day period for
review and comment.  Review of any document by the U.S. EPA may
concern all aspects-of the report  (including completeness; and
should include, but is not limited to, technical evaluation of
any aspect of the document, and consistency with CERCLA, the NCP
and any pertinent guidance or policy promulgated by the U.S. EPA.
•Comments by the U.S. EPA shall be provided with adequate
specificity so that the  [DOD Component] may respond to the
comment and, if appropriate, make changes to the draft report.
Comments shall refer to any pertinent sources of authority or
references upon which the comments are based, and, upon request
of the [DOD Component], the U.S. EPA shall provide a copy of the
cited authority or reference.  In cases involving complex or
unusually lengthy reports, U.S. EPA may extend the 30-day comment
period for an additional 20 days by written notice to the [DOD
Component] prior to the  end of the 30-day period.  On or before
the close of the comment period, U.S. EPA shall transmit by next
day mail their written comments to the  [DOD Component].
      3.  Representatives of the  [DOD Component] shall make
themselves readily available to U.S. EPA during the  comment
period for purposes of informally  responding to questions and
                       *
comments on draft reports.  Oral comments made during  such
discussions need not be  the subject of  a written  response by  the
[DOD  Component] on the close of the comment period.
      4.  In commenting on a draft  report which contains a
proposed ARAR determination, U.S.  EPA shall  include  a  reasoned

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statement of whether they object to any portion of the proposed
ARAR determination.  To the extent that U.S.  EPA does object,  it
shall explain the bases for its objection in detail and shall
identify any ARARs which it believes were not properly addressed
in the proposed ARAR determination.
     5.  Following the close of the comment period for a draft
report, the [DOD Component] shall give full consideration to all
written comments on the draft report submitted during the comment
period.  Within 30 days of the close of the comment period on a
draft secondary report, the [DOD Component] shall transmit to
U.S. EPA its written response to comments received within the
comment period.  Within 30 days of the close of the comment
period on a draft primary report, the [DOD Component] shall
transmit to U.S. EPA a draft final primary report, which shall
include the [DOD Component]'s response to all written comments,
received within the comment period.  While the resulting draft
final report shall be the responsibility of the [DOD Component],
it shall be the product of consensus to the maximum extent
possible.
     6.  The [DOD Component] may extend the 30-day period for
either responding to comments on a draft report or for  issuing
the draft final primary report  for an additional  20 days by
providing notice to U.S. EPA.   In appropriate circumstances, this
time period may be further extended in accordance with  Part 	
hereof.

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     H.  Availability of Dispute Resolution for Draft Final
Primary Documents;
     1.  Dispute resolution shall be available to the Parties for
draft final primary•reports as set forth in Part 	.
     2.  When dispute resolution is invoked on a draft primary
report, work may be stopped in accordance with the procedures set
forth in Part 	 regarding dispute resolution.

     I.  Finalization of Reports;
     The draft final .primary report shall serve as the final
primary report if no party invokes dispute resolution regarding
the document or, if invoked, at completion of the dispute
resolution process should the [DOD Component]'s position be
sustained.  If the [DOD Component]'s determination is not
sustained in the dispute resolution process, the [DOD Component]
shall prepare, within not more than 35 days, a revision of the
draft final report which conforms to the results of dispute
resolution.  In appropriate circumstances, the time period for
this revision period may be extended in accordance with Part 	
hereof.

     J•  SubMouent Modifications of Final Reports*
     Following finalization of any primary report pursuant to
Paragraph I above, U.S. EPA or the [DOD Component] may seek  to
modify the report, including seeking additional  field work,  pilot
studies, computer modeling or other supporting technical work,
only as. provided in Paragraphs 1 and 2 below.

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      1.  U.S.  EPA or the  [DOD Component] may seek to modify a
 report after  finalization if it determines, based on new
                                                -*
 information  (i.e.,  information that became available, or
 conditions that  became  known, after the report was  finalized)
 that  the requested  modification is necessary.  U.S. EPA or the
 [DOD  Component]  may seek  such a modification by submitting a
 concise written  request to the Project Manager of the other
•Party.  The  request shall specify the nature of the requested
 modification  and how the  request is based on new information.
      2.  In  the  event that a consensus is not reached by  the
 Project Managers on the need for a modification, either U.S. EPA
 or  the [DOD  Component]  may invoke dispute resolution to determine
 if  such modification-shall be conducted.  Modification of a
 report shall  be  required  only upon a showing that:   (1) the
 requested modification  is based on significant new  information,
 and (2) the  requested modification could be of significant
 assistance in evaluating  impacts on the public health or  the
 environment,  in  evaluating the selection of remedial
 alternatives,  or in protecting human health and the environment.
      3.  Nothing in this  Subpart shall alter U.S. EPA's ability
 to  request the performance of additional work which was not
 contemplated by  this Agreement.  The  [DOD  Component]'s  obligation
 to  perform such  work must be established by either  a  modification
 of  a  report  or document or by amendment to this Agreement.

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                       RESOLUTION OF DISPUTES
     Except as specifically set forth elsewhere"in this
Agreement, if a dispute arises under this Agreement,  the
procedures of this Part shall apply.
     All Parties to this Agreement shall make reasonable efforts
to informally resolve disputes at the Project Manager or
immediate supervisor level.  If resolution cannot be achieved
informally, the procedures of this Part shall be implemented to
resolve a dispute.

     A.  Within thirty (30) days after:  (1) the period
established for review of a draft final primary document pursuant
to Part 	 (Review of Submittals) of this Agreement, or (2) any
action which leads to or generates a dispute, the disputing
Party shall submit to the DRC a written statement of dispute
setting forth the nature of the dispute, the work affected by tr.j
dispute, the disputing Party's position with respect to the
dispute and the technical, legal or factual information the
disputing Party is relying upon to support its position.

     B.  Prior to any Party's issuance of a written statement of
dispute, the disputing Party shall engage the other Party in
informal dispute resolution among the Project Managers and/or
their immediate supervisors.  During this informal dispute
resolution period the Parties shall meet as many times as are
necessary to discuss and attempt resolution of the dispute.

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      C.   The DRC will  serve  as  a  forum  for resolution of
 disputes  for which  agreement has  not  been reached through
 informal  dispute resolution.  The Parties shall each designate
 one  individual  and  an  alternate to serve on the DRC.  The
 individuals  designated to  serve on the  DRC shall be employed at
 the  policy level (SES  or equivalent)  or be delegated the
•authority to participate on  the DRC for the purposes of dispute
 resolution under this  Agreement.   The U.S. EPA representative on
 the  DRC is the  Waste Management Division Director of U.S. EPA's
 Region 	.   The [DOD  Component]'s designated member is the  [DOD
 Component equivalent].  Written notice  of any delegation of
 authority from  a Party's designated representative on the DRC
 shall be  provided to all other  Parties  pursuant to the procedures
 of Part 	  (Notices).

      D.   Following  elevation of a dispute to the DRC, the DRC
 shall have twenty-one  (21)  days to unanimously resolve the
 dispute and  issue a written decision. If the DRC is unable  to
 unanimously  resolve the dispute within this twenty-one  (21)  day
 period the written  statement of dispute shall be forwarded  to  the
 Senior Executive Committee (SEC)  for  resolution, within  seven  (7)
 days after the  close  of the twenty-one (21) day  resolution
 period.

      E.   The SEC will  serve as the forum for  resolution of
 disputes  for which  agreement has not been reached  by the DRC.

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The U.S. EPA representative on the SEC is the Regional
Administrator of U.S. EPA's Region 	.   The [DOD Component]'s
representative on the SEC is the [DOD Component equivalent].   The
SEC members shall, as appropriate, confer, meet and exert their
best efforts to resolve the dispute and issue a written decision.
If unanimous resolution of the dispute is not reached within
twenty-one (21) days, U.S. EPA's Regional Administrator shall
issue a written position on the dispute.  The [DOD Component]
may, within fourteen (14) days of the Regional Administrator's
issuance of U.S. EPA's position, issue a written notice elevating
the dispute to the Administrator of U.S. EPA for resolution in
accordance with all applicable laws and procedures.  In the event
that the [DOD Component] elects not to elevate the dispute to the
Administrator within the designated fourteen (14) day escalation
period, the [DOD Component] shall be deemed to have agreed with
Regional Administrator's written position with respect to the
dispute.

     F.  Upon escalation of a dispute to the Administrator of
U.S. EPA pursuant to Subpart E, the Administrator will review and
resolve th« dispute within twenty-one (21) days.  Upon request,
and prior to resolving the dispute, the U.S. EPA Administrator
shall meet and confer with the  [DOD Component]'3 Secretariat
Representative to discuss the issue(s) under dispute.  Upon
resolution, the Administrator shall provide the  [DOD  Component]
with a written final decision setting forth resolution of  the
dispute.  The duties of the Administrator set  forth in this Part

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shall not be delegated.

     G.  The pendency of any dispute under this Part shall not
affect the [DOD Component]'s responsibility for timely
performance of the work required by this Agreement, except that
the time period for completion of work affected by such dispute
shall be extended for a period of time usually not to exceed the
actual time taken to resolve any good faith dispute in accordance
with the procedures specified herein.  All elements of the work
required by this Agreement which are not affected by the dispute
shall continue and be completed in accordance with the applicable
schedule.

     H.   When dispute resolution is in progress, work affected
by the dispute will immediately be discontinued if the Hazardous
Waste Division Director for U.S. EPA's Region 	 requests, in
writing, that work related to the dispute be stopped because, in
U.S. EPA's opinion, such work is inadequate or defective, and
such inadequacy or defect is likely to yield an adverse effect on
human health or the environment, or is likely to have a
substantial adverse effect on the remedy selection or
implementation process.  To the extent possible, U.S. EPA  shall
consult with the [DOD Component] prior to initiating a work
stoppage request.  After stoppage of work, if the  [DOD Component]
believes that the work stoppage is  inappropriate or may  have
potential significant adverse impacts, the  [DOD  Component] may
meet with the Division Director to  discuss the work stoppage.

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Following this meeting, and further consideration of the issues,
the Division Director will issue, in writing, a final decision
with respect to the work stoppage.  The final written decision of
the Division Director may immediately be subjected to formal
dispute resolution.  Such dispute may be brought directly to the
either the DRC or the SEC, at the discretion of the [DOD
Component].

     I.  within twenty-one (21) days of resolution of a dispute
pursuant to the procedures specified in this Part, the  [DOD
Component] shall incorporate the resolution and final
determination into the appropriate plan, schedule or procedures
and proceed to implement this Agreement according to the amended
plan, schedule or procedures.

     J.  Resolution of a dispute pursuant to this Part of the
Agreement constitutes a final resolution of any dispute arising
under this Agreement.  All Parties shall abide by all terms and
conditions of any final resolution of dispute obtained pursuant
to this Part of this Agreement.

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                      ENFORCEABILITY
A.  The Parties agree that:
     (1)   Upon- the effective date of this Agreement,  any
  standard, regulation,  condition,  requirement or order which
  has become effective under CERCLA and is incorporated into
  this Agreement is enforceable by any person pursuant to
  Section 310 of CERCLA, and any violation of such standard,
  regulation, condition, requirement or order will be subject
  to civil penalties under Sections 310(c) and 109 of CERCLA;
  and
     (2)   all timetables or deadlines associated with the
  RI/FS shall be enforceable by any person pursuant to Section
  310 of CERCLA, and any violation of such timetables or
  deadlines will be subject to civil penalties under Sections
  310(c)  and 109 of CERCLA;
     (3)  all terms and conditions of this Agreement which
  relate to interim or final remedial actions, including
  corresponding timetables, deadlines or schedules, and all
  work associated with the interim or final remedial actions,
  shall be enforceable by any person pursuant to Section
  310(c) of CERCLA, and any violation of  such terms or
  conditions will be subject to civil penalties under
  Sections 310(c) and 109 of CERCLA; and
     (4) any final resolution of a dispute pursuant to  Part
  	 of this Agreement which establishes a term,  condition,
  timetable, deadline or schedule shall be enforceable  by  any
  person pursuant to Section 310(c)  of CERCLA,  and any

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       violation of such term, condition, timetable, deadline or
       schedule will be subject to civil penalties under Sections
       310(c) and 109 of CERCLA.

     B.   Nothing in this Agreement shall be construed as
authorizing any person to seek judicial review of any action or
work where review is barred by any provision of CERCLA, including
Section 113(h) of CERCLA.

     C.   The Parties agree that all Parties shall have the right
to enforce the terms of this Agreement.

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                        STIPULATED PENALTIES
     A.  In the event that the [DOD Component]  fails to submit a
primary document (i.e., Scope of Work,  RI/FS Work Plan, Risk
Assessment, RI Report, Initial Screening of Alternatives,  FS
Report, Proposed Plan, Record of Decision,  Remedial Design,
Remedial Action Work Plan) to U.S. EPA pursuant to the
appropriate timetable or deadline in accordance with the
requirements of this Agreement, or fails to comply with a term 01
condition of this Agreement which relates to an interim or final
remedial action, U.S. EPA may assess a stipulated penalty against
the [DOD Component].  A stipulated penalty may be assessed in an
amount not to exceed $5,000 for the first week (or part thereof),
and $10,000 for each additional week (or part thereof) for which
a failure set forth in this Paragraph occurs.

     B.  Upon determining that the [DOD Component] has failed in
a manner set forth in Paragraph A, U.S. EPA shall so notify the
[DOD Component] in writing.  If the failure in question is not
already subject to dispute resolution at the time such notice is
received, the [DOD Component] shall have fifteen  (15) days after
receipt of the notice to invoke dispute resolution on the
question of whether the failure did in fact occur.  The [DOD
Component] shall not be liable for the stipulated penalty
assessed by U.S. EPA if the failure is determined, through the
dispute resolution process, not to have occurred.  'Mo  assessment
of a stipulated penalty shall be  final until the  conclusion of

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dispute resolution procedures related to the assessment of the
stipulated penalty.

     C.  The annual reports required by Section 120(e)(5) of
CERCLA shall include, with respect to each final assessment of a
stipulated penalty against the  [DOD Component] under this
Agreement, each of the  following:
     1.  The facility responsible for the failure;
     2.  A statement of the facts and circumstances giving rise
         to the failure;
     3.  A statement of any administrative or other corrective
         action taken at the relevant facility, or a statement of
         why such measures were determined to be inappropriate;
     4.  A statement of any additional action taken by or at the
         facility to prevent recurrence of the same type of
         failure; and
     5.  The total dollar amount of the stipulated penalty
         assessed for the particular failure.

     D.  Stipulated penalties assessed pursuant to this  Part
shall be payable to the Hazardous Substances Response Trust Fund
only in the manner and  to the extent expressly provided  for in
Acts authorizing funds  for, and appropriations to, the DOD.

     E.   In no event shall this Part give rise to a stipulated
penalty in excess of the amount set forth in Section  109  of
CERCIA.

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     F.  This Part shall not affect the [DOD Component]'s ability
to obtain an extension of a timetable, deadline or schedule
pursuant to Part 	 of this Agreement.

     G.  Nothing in this Agreement shall be construed to render
any officer or employee of the [DOD Component]  personally liable
for the payment of any stipulated penalty assessed pursuant to
this Part.
i

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                          DEADLINES
 [This model provision assumes no investigatory work is in
 progress at the site and no schedules have been^previously
 established for study work.  The degree of specificity and
 completeness of the deadlines contained herein shall be based
 upon information possessed at the time of development of the
 site-specific agreement.]
     A.   The following deadlines have been established, in
 conjunction with the State, for the submittal of draft primary
 documents pursuant to this Agreement:
               1.  [Scope of Work]
     B.   Within twenty-one (21) days of the effective date of
 this Agreement, the [DOD Component] shall propose deadlines for
 completion of the following draft primary documents:
               2.  [RI/FS Work Plan, including Sampling and
                   Analysis Plan and QAPP]
               3.  [Risk Assessment]
               4.  [RI Report]
               5.  [Initial Screening of Alternatives]
               6.  [FS Report]
               7.  [Proposed Plan]
               8.  [Record of Decision]
     within fifteen (15) days of receipt, EPA, in conjunction
with the State, shall review and provide comments to the  [DOD
Component] regarding the proposed deadlines,  within fifteen  (15)
days following receipt of the comments the  [DOD Component]  shall,
as appropriate, make revisions and  reissue  the proposal.   The
Parties shall meet as necessary to  discuss  and finalize the
proposed deadlines.  If the Parties agree on proposed  deadlines,
the finalized deadlines shall be  incorporated  into  the

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appropriate Work Plans.  If the Parties fail to agree within
thirty (30) days on the proposed deadlines, the matter shall
immediately be submitted for dispute resolution pursuant to Part
	 of this Agreement.
     The final deadlines established pursuant to this Paragraph
shall be published by U.S. EPA, in conjunction with the State.

     C.   Within twenty-one (21) days of issuance of the Record
of Decision, the [DOD Component] shall propose deadlines for
completion of the following draft primary documents:
               9.  [Remedial Design]
               10. [Remedial Action Worfc Plan]
     These deadlines shall be proposed, finalized and published
utilizing the same procedures set forth in Paragraph B. above.

     D.   The deadlines set forth in this Part, or to be
established as set forth in this Part, may be extended pursuant
to Part 	 of this Agreement.  The Parties recognize that one
possible basis for extension of the deadlines for completion  of
the Remedial Investigation and Feasibility Study Reports is the
identification of significant new Site conditions during the
performance of the remedial investigation.

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                              EXTENSIONS
     A.  Either a timetable and deadline or a schedule shall be
extended upon receipt of a timely request for extension and when
good cause exists for the requested extension.  Any request for
                                        *
extension by the [DOD Component] shall be submitted in writing
and shall specify:
          1.   The timetable and deadline or the schedule that is
               sought to be extended;
          2.   The length of the extension sought;
          3.   The good cause(s) for the extension; and
          4.   Any related timetable and deadline or schedule
               that would be affected if the extension were
               granted.

     B.  Good cause exists for an extension when sought in regard
to:
          1.   An event of force majeure;
          2.   A delay caused by another party's failure to meet
               any requirement of this agreement;
          3.   A delay caused by the good faith invocation of
               dispute resolution or the initiation of judicial
               action;
          4.   A delay caused, or which is likely to be caused,
               by the grant of an extension in regard to another
               timetable and deadline or schedule; and
          5.   Any other event or series of events mutually
               agreed to by the Parties as constituting good
               cause.

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     C.  Absent agreement of the Parties with respect to the
existence of good cause,  the [DOD Component]  may seek and obtain
a determination through the dispute resolution process that good
cause exists.

     0.  Within seven days of receipt of a request for an
extension of a timetable and deadline or a schedule,  U.S. EPA
shall advise the [DOD Component] in writing of its respective
position on the request.   Any failure by U.S. EPA to respond
within the 7-day period shall be deemed to constitute concurrence
in the request for extension.  If U.S. EPA does not concur in the
requested extension,  it shall include in its statement of
nonconcurrence an explanation of the basis for its position.

     E.  If there is consensus among the Parties that the
requested extension is warranted, the [DOD Component] shall
extend the affected timetable and deadline or schedule
accordingly.  If there is no consensus among the Parties as to
whether all or part of the requested extension is warranted, the
timetable and deadline or schedule shall not be extended except
in accordance with determination resulting from the  dispute
resolution process.

     F.  Within seven days of receipt of  a statement of
nonconcurrence with the  requested  extension,  the  [DOD Component]
may invoke dispute resolution.                                      V

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     G.  A timely and good faith request for an extension shall
toll any assessment of stipulated penalties or application for
judicial enforcement of the affected timetable and deadline or
schedule until a decision is reached on whether the requested
extension will be approved.  If dispute resolution is invoked and
the requested extension is denied, stipulated penalties may be
assessed and may accrue from the date of the original timetable,
deadline or schedule.  Following the grant of an extension, an
assessment of stipulated penalties or an application for judicial
enforcement may be sought only to compel compliance with the
timetable and deadline or schedule as most recently extended.

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                            FORCE MAJEURE
     A Force Majeure shall mean any event arising from causes
beyond the control of a Party that causes a delay in or prevents
the performance of any obligation under this Agreement,
including, but not limited to, acts of God; fire; war;
insurrection; civil disturbance; explosion; unanticipated
breakage or accident to machinery, equipment or lines of pipe
despite reasonably diligent maintenance; adverse weather
conditions that could not be reasonably anticipated; unusual
delay in transportation; restraint by court order or order of
public authority; inability to obtain, at reasonable cost and
after exercise of reasonable diligence, any necessary
authorizations, approvals, permits or licenses due to action or
inaction of any governmental agency or authority other than the
[000 component]; delays caused by compliance with applicable
statutes or regulations governing contracting, procurement or
acquisition procedures, despite the exercise of reasonable
diligence; and insufficient availability of appropriated funds,
if the [DOD Component] shall have made timely request  for such
funds as part of the budgetary process as set forth in Part 	
(Funding) at his Agreement.  A Force Majeure shall also  include
any stri)c« or other labor dispute, whether or not within the
control of th« Parties affected thereby.  Force Majeure  shall not
include increased costs or expenses of Response Actions, whether
or not anticipated at the time such Response Actions  were
initiated.                                                           M

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                               FUNDING
     It is the expectation of the Parties to this Agreement that
all obligations of the  [DOD Component] arising under this
Agreement will be fully  funded.  The  [DOD Component] agrees to
seek sufficient funding  through the DOD budgetary process to
fulfill its obligations  under this Agreement.
     In accordance with  Section 120(e)(5)(B) of CERCLA, 42 U.S.C.
§9620(e)(5)(B), the  [DOD Component] shall include in its annual
report to Congress the specific cost  estimates and budgetary
proposals associated with the implementation of this Agreement.
     Any requirement for the payment  or obligation of funds,
including stipulated penalties, by the [DOD Component]
established by the terms of this Agreement shall be subject to
the availability of appropriated funds, and no provision herein
shall be interpreted to  require obligation or payment of funds in
violation of the Anti-Deficiency Act, 31 U.S.C. §1341.  In cases
where payment or obligation of funds  would constitute a violation
of the Anti-Deficiency Act, the dates established requiring the
payment or obligation of such funds shall be appropriately
adjusted.
     If appropriated funds are not available to fulfill the [DOD
Component]'s obligations under this Agreement, U.S. EPA reserves
the right to initiate an action against any other person, or to
take any response action, which would be appropriate absent this
Agreement.
     Funds authorized and appropriated annually by  Congress under
the "Environmental Restoration, Defense" appropriation  in the

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 Department  of Defense Appropriation Act and allocated by the
 DASD(E)  to  the  [DOD Component] will be the source of funds for
 activities  required by  this Agreement consistent with Section 211
 of  SARA,  10 U.S.C. Chapter 160.  However, should the
 Environmental Restoration, Defense appropriation be inadequate  in
 any year to meet  the total [DOD  Component] CERCLA implementation
 requirements, the DOD shall employ and the [DOD Component] shall
•follow a standardized DOD prioritization process which  allocates
 that year's appropriations in a  manner which  maximizes  the
 protection  of human health and the environment.  A  standardized
 DOD prioritization model shall be developed and utilized with the
 assistance  of U.S. EPA  and the states.

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        GENERIC TABLE OF CONTENTS  FOR
           FEDERAL FACILITY AGREEMENTS
            UNDER CERCLA SECTION 120
Determinations	
Parties	
Definitions	
Site Description	
Findings of Fact	
Scope of Agreement	
Remedial Investigation	
Feasibility Study	
Interim Remedial Actions	
Remedial Action	
RCRA Closure	
Creation of Danger/Emergency Actions	
Reporting	
Notification	
Project Managers	
Sampling and Data/Document Availability	
Retention of Records	
Site Access	
Five Year Review	
Other Claims	
Confidential Information	
Transfer of Property	
Public Participation/Community Relations....

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                    -2-
Public Comment.



Amendment	



Termination....



Effective Date.
                                                         I

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D.C.  20460
                             MAY 21 1988
                                                           OFFICE OF
                                                   SOLID WASTE AND EMERGENCY RESPON'
MEMORANDUM

SUBJECT:  Agreement with the  Department of Energy—
          Model Provisions  for  CERCLA  Federal  Facility
          Agreements.

FROM:     J.nftnston Porter
          Assistant Administrator

TO:       Regional Administrators
          Regions I-X


     I am pleased to transmit to you model language  for key
provisions of CERCLA Federal  Facility  Agreements with the
Department of Energy  (DOE).   This  language has been  mutually
agreed to by EPA and DOE Headquarters.

     The attached provisions  deal  primarily  with policy issues
which required agreement between the two  Agencies  before site-
specific agreements could be  finalized.   The attached language
should be incorporated  into the agreements you are now
negotiating, and into future  agreements,  to  insure national
consistency in dealing  with DOE facilities which involve CERCLA
activities.  Language in brackets  indicates  those  areas which can
be adjusted depending on site-specific considerations.

     Please note that there are many other important parts of the
agreements which the Region must negotiate,  notably  those
sections dealing with the actual work  that needs to  be performed
at each specific DOE site and the  schedules  to be  met.  Attached,
therefore, is a generic table of contents which lists other
important sections which are  normally  included in  the agreements,
but which do not require model  language.  Also,  individual State
concerns should be factored into each  agreement, as  it is highly
desirable that States participate  in Federal facility cleanups.

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                                 -2-

     I hope these model provisions will help you in quickly
concluding the negotiations you are currently conducting with
DOE, and that such negotiations will now become more routine.  If
you have any questions about these provisions or their
implementation, please contact Christopher Grundler, Director of
the Federal Facilities Compliance Task Force, OWPE, at 475-9801.
Task Force staff is available to support your negotiations, or
to answer questions which may come up relating to the model
provisions.

     I look forward to working with you as we continue to work
toward making Federal facility environmental compliance a model
for others.

Attachments

cc:  Lee Thomas, EPA
     Jim Barnes, EPA
     Ernest Baynard, DOE
     Roger Marzulla, DOJ
     Tom Adams, OECM
     Lawrence Jensen, OGC
     Jennifer Joy Wilson, OEA
     Waste Management Division Directors

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           REGION 	
                            AND THE
              UNITED STATES DEPARTMENT OF ENERGY
IN THE MATTER OF:               )
                                )
The U.S. Department             )     FEDERAL FACILITY
of Energy's                     )     AGREEMENT UNDER
                                )     CERCIA SECTION 120
 [NAME OF FACILITY]             )
                                )     Administrative
                                )     Docket Number:


     Based on the information available to the Parties on the

effective date of this FEDERAL FACILITY AGREEMENT  (Agreement),

and without trial or adjudication of any issues of fact or law,

the Parties agree as follows:

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                             JURISDICTION

        Each Party is entering into this Agreement pursuant to
the following authorities:
       (i) The U.S. Environmental Protection Agency (U.S. EPA),
Region 	, enters into those portions of this Agreement that
relate to the remedial investigation/feasibility study  (RI/FS)
pursuant to Section 120(e)(l) of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA),
42 U.S.C. § 9620(e)(l), as amended by the Superfund Amendments
and Reauthorization Act of 1986  (SARA), Pub. L. 99-499
(hereinafter jointly referred to as CERCLA/SARA or CERCLA) and
[Sections 6001, 3008(h) and 3004(u) and (v) of] the Resource
Conservation and Recovery Act (RCRA), 42 U.S.C. [§§ 6961,
6928(h), 6924(u) and (v),] as amended by the Hazardous  and Solid
Waste Amendments of 1984  (HSWA)(hereinafter jointly referred  to
as RCRA/HSWA or RCRA) and Executive Order 12580;
     (ii) U.S. EPA, Region 	, enters into those portions of
this Agreement that relate to interim remedial actions  and final
remedial actions pursuant to Section 120(e)(2) of CERCLA/SARA,
[Sections 6001, 3008(h) and 3004(u) and (v) of] RCRA  and
Executive Order 12580;
     (iii) the DOE enters into those portions of this Agreement
that relate to the RI/FS pursuant to Section 120(e)(1)  of CERCLA,
[Sections 6001, 3008(h) and 3004(u) and(v) of] RCRA,  Executive
Order 12580, the National Environmental Policy Act, 42  U.S.C.
§4321,  and the Atomic Energy Act of 1954  (AEA), as  amended,  42
U.S.C.  §2201;

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      (iv) the DOE enters into those portions of this Agreement
that relate to interim remedial actions and final remedial
actions pursuant to Section 120(e)(2) of CERCLA/SARA,  [Sections
6001, 3004(u) and 3008(h) of] RCRA, Executive Order  12580 and the
AEA.

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                             PURPOSE

     A.  The general purposes of this Agreement are to:
          (1) ensure that the environmental  impacts associated
with past and present activities at the Site are thoroughly
investigated and appropriate remedial action taken as necessary
to protect the public health, welfare and the environment;
          (2) establish a procedural framework and schedule for
developing,  implementing and monitoring appropriate response
actions at the Site in accordance with CERCLA/SARA, the NCP,
Superfund guidance and policy, RCRA, RCRA guidance and policy;
and,
          (3) facilitate cooperation, exchange of information and
participation of the Parties in such actions.

     B.  Specifically, the purposes of this Agreement are to:
          (1)  Identify Interim Remedial Action (IRA)
alternatives which are appropriate at the Site prior to the
implementation of final remedial action(s) for the Site.  IRA
alternatives shall be identified and proposed to the Parties as
early as possible prior to formal proposal of IRAs to U.S.  EPA
pursuant to CERCLA/ SARA.  This process is designed to promote
cooperation among the Parties in identifying IRA alternatives
prior to selection of final  IRAs.
          (2)  Establish requirements  for the performance  of a RI
to determine fully the nature and extent of  the threat to  the
public health or welfare or  the environment  caused by the

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release and threatened release of hazardous substances,
pollutants or contaminants at the Site and to establish
requirements for the performance of a FS for the site to
identify, evaluate, and select alternatives for the appropriate
remedial action(s) to prevent, mitigate, or abate the release or
threatened release of hazardous substances, pollutants or
contaminants at the Site in accordance with CERCLA/SARA.
          (3)  Identify the nature, objective and schedule of
response actions to be taken at the Site.  Response actions at
the Site shall attain that degree of cleanup of hazardous
substances, pollutants or contaminants mandated by CERCLA/SARA.
          (4)  Implement the selected interim and final remedial
action(s) in accordance with CERCLA/SARA.
          (5)  Assure compliance with federal and state hazardous
waste laws and regulations for matters covered by this Agreement.

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             STATUTORY COMPLIANCE/RCRA-CERCLA  INTEGRATION

     A.   The Parties  intend to integrate the DOE's CERCLA
response obligations and RCRA corrective action obligations which
relate to the release(s) of hazardous substances, hazardous
wastes, pollutants or  contaminants covered by this Agreement into
this comprehensive Agreement.  Therefore, the Parties intend that
activities covered by  this Agreement will be deemed to achieve
compliance with CERCLA, 42 U.S.C. §9601 et seq.; to satisfy the
corrective action requirements of Sections 3004(u) and (v) of
RCRA, 42 U.S.C. §6924(u) and (v), for a RCRA permit, and Section
3008(h), 42 U.S.C. §6928(h), for interim status facilities; and
to meet or exceed all  applicable or relevant and appropriate
Federal and State laws and regulations, to the extent required by
Section 121 of CERCLA, 42 U.S.C. §9621.

     B.   Based upon the foregoing, the Parties intend that any
remedial action selected, implemented and completed under this
Agreement shall be deemed by the Parties to be protective of
human health and the environment such that remediation of
releases covered by this Agreement shall obviate the need for
further corrective action under RCRA.  The Parties agree that
with respect to releases of hazardous waste covered by this
Agreement, RCRA shall  be considered an applicable or relevant and
appropriate requirement pursuant to Section 121 of CERCLA.

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     C.   If a permit is issued to the DOE for on-going hazardous
waste management activities at the Site, U.S. EPA shall
reference and incorporate any appropriate provisions, including
appropriate schedules (and the provision for extension of such
schedules), of this Agreement into such permit.  The Parties
intend that the judicial review of any permit conditions which
reference this Agreement shall, to the extent authorized by law,
only be reviewed under the provisions of CERCLA.

     D.   Nothing in this Agreement shall alter the DOE's
authority with respect to removal actions conducted pursuant to
Section 104 of CERCLA, 42 U.S.C. §9604.

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                     CONSULTATION WITH  U.S.  EPA
      Review and Comment Process  for Draft and Final Documents

     A.   Applicability;
     The provisions of this Part establish the procedures that
shall be used by the DOE and U.S. EPA to provide the Parties with
appropriate notice, review, comment,  and response to comments
regarding RI/FS and RD/RA documents,  specified herein as either
primary or secondary documents.   In accordance with Section 120
of CERCLA and 10 U.S.C.  §2705, the DOE  will normally be
responsible for issuing primary and secondary documents to U.S.
EPA.  As of the effective date of this  Agreement, all draft and
final reports for any deliverable document identified herein
shall be prepared,  distributed and subject to dispute in
accordance with Paragraphs B through J  below.
     The designation of a document as "draft" or "final" is
solely for purposes of consultation with U.S. EPA in accordance
with this Part.  Such designation does  not.affect the obligation
of the Parties to issue documents, which may be referred to
herein as "final",  to the public  for review and comment as
appropriate and as required by law.

     B.  General Process for RI/FS and RD/RA documents:
     1.  Primary documents include those  reports that  are  major,
discrete portions of RI/FS or RD/RA  activities.  Primary
documents are initially issued by the  DOE in  draft  subject to
review and comment by U.S. EPA.   Following  receipt  of  comments on

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a particular draft primary document,  the DOE will  respond to  the
comments received and issue a draft final primary  document
subject to dispute resolution.  The draft final primary document
will become the final primary document either 30 days after the
period established for review of a draft final document if
dispute resolution is not invoked or as modified by decision  of
the dispute resolution process.
     2.  Secondary documents include those reports that are
discrete portions of the primary documents and are typically
input or feeder documents.  Secondary documents are issued by the
DOE in draft subject to review and comment by U.S. EPA. Although
the DOE will respond to comments received, the draft secondary
documents may be finalized in the context of the corresponding
primary documents.  A secondary document may be disputed at the
time the corresponding draft final primary document is issued.

     C.  Primary Reports;
     1.  The DOE shall complete and transmit draft reports for
the following primary documents to U.S. EPA for review and
comment in accordance with the provisions of this Part:
     [Note:  The list set forth below represents potential
primary documents and the type of information that typically
would be generated during a CERCLA cleanup at an NPL site.  This
list, and the list below of secondary documents, includes
discrete portions of the RI/FS or RD/RA and are subject  to change
in accordance with the NCP, DOE and U.S. EPA guidance, and site
specific requirements.  In practice, the documents will  also

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vary with scope and nature of the project,  and may either be
combined or broken out into separate volumes.]
               1.  [Scope of Work]
               2.  [RI/FS Work Plan, including Sampling and
                   Analysis Plan and QAPP]
               3.  [Risk Assessment]
               4.  [RI Report]
               5.  [Initial Screening of Alternatives]
               6.  [FS Report]
               7.  [Proposed Plan]
               8.  [Record of Decision]
               9.  [Remedial Design]
               10. [Remedial Action Work Plan]
     2.  Only the draft final reports for the primary documents
identified above shall be subject to dispute resolution.  The
DOE shall complete and transmit draft primary documents  in
accordance with the timetable and deadlines established  in  Part
	 of this agreement.

     D.  Secondary Documents?
     1.  The DOE shall complete and transmit draft reports  for
the following secondary documents to U.S. EPA for review and
comment in accordance with the provisions of this Part:
               1.  [Initial Remedial Action / Data Quality
                   Objectives]
               2.  [Site Characterization Summary]
               3.  [Detailed Analysis of Alternatives]
               4.  [Post-screening  Investigation Work Plan]

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               5.   [Treatability Studies]
               6.   [Sampling and Data Results]
     2.  Although U.S. EPA may comment on the draft reports for
the secondary documents listed above, such documents shall not be
subject to dispute  resolution except as provided by Paragraph B
hereof.  Target dates shall be established for the completion and
transmission of draft secondary reports pursuant to Part 	
of this Agreement.

     E.  Meetings of the Project Managers on Development of
Reports;
     The Project Managers shall meet approximately every  [30]
days, except as otherwise agreed by the Parties, to review and
discuss the progress of work being performed at the site on the
primary and secondary documents.  Prior to preparing any draft
report specified in Paragraphs C and D above, the Project
Managers shall meet to discuss the report results in an effort to
reach a common understanding, to the maximum extent practicable,
with respect to the results to be presented in the draft report.

     F.  Identification and Determination of Potential ARARs;
     1.  For those  primary reports or secondary documents that
consist of or include ARAR determinations, prior to the issuance
of a draft report,  the Project Managers shall meet to identify
and propose, to the best of their ability, all potential ARARs
pertinent to the report being addressed.  Draft ARAR
determinations shall be prepared by the DOE in accordance with

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Section 121(d)(2)  of CERCLA,  the NCP and pertinent guidance
issued by U.S. EPA, which is  not inconsistent with CERCLA and  the
NCP.
     2.  In identifying potential ARARs,  the Parties  recognize
that actual ARARs can be identified only on  a site-specific basis
and that ARARs depend on the  specific hazardous  substances,
pollutants and contaminants at a site,  the particular actions
proposed as a remedy and the  characteristics of  a site.   The
Parties recognize that ARAR identification is necessarily an
iterative process and that potential ARARs must  be re-examined
throughout the RI/FS process  until a ROD is  issued.

     G.  Review and Comment on Draft Reports;
     1.  The DOE shall complete and transmit each draft primary
report to U.S. EPA on or before the corresponding deadline
established for the issuance of the report.   The DOE shall
complete and transmit the draft secondary document in accordance
with the target dates established for the issuance of such
reports established pursuant to Part 	 of this Agreement.
     2.  Unless the Parties mutually agree to another time
period, all draft reports shall be subject to a  30-day period for
review and comment.  Review of any document by the U.S.  EPA may
concern all aspects of the report  (including completeness)  and
should include, but is not limited to, technical evaluation of
any aspect of the document, and consistency with CERCLA,  the  NCP
and any pertinent guidance or policy promulgated by  the  U.S.  EPA.
Comments by the U.S. EPA shall be provided with  adequate

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specificity so that the DOE may respond to the comment  and,  if
appropriate, make changes to the draft report.  Comments  shall
refer to any pertinent sources of authority or references upon
which the comments are based, and,  upon request of  the  DOE,  the
U.S. EPA shall provide a copy of the cited authority or
reference.  In cases involving complex or unusually lengthy
reports, U.S. EPA may extend the 30-day comment period  for an
additional 20 days by written notice to the DOE prior to  the end
of the 30-day period.  On or before the close of the comment
period, U.S. EPA shall transmit by next day mail their  written
comments to the DOE.
     3.  Representatives of the DOE shall make themselves readily
available to U.S. EPA during the comment period for purposes of
informally responding to questions and comments on draft reports.
Oral comments made during such discussions need not be the
subject of a written response by the DOE on the close of the
comment period.
     4.  In commenting on a draft report which contains a
proposed ARAR determination, U.S. EPA shall include a reasoned
statement of whether they object to any portion of the proposed
ARAR determination.  To the extent that U.S.  EPA does object, it
shall explain the bases for its objection  in  detail and  shall
identify any ARARs which it believes were  not properly addressed
in the proposed ARAR determination.
     5.  Following the close of the comment period  for a draft
report, the DOE shall give full consideration to all written
comments on the draft report submitted during the comment

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period.  Within 30 days of the close of the comment period on a
draft secondary report, the DOE shall transmit to U.S.  EPA its
written response to comments received within the comment period.
Within 30 days of the close of the comment period on a draft
primary report, the DOE shall transmit to U.S. EPA a draft final
primary report, which shall include the DOE's response to all
written comments, received within the comment period.  While the
resulting draft final report shall be the responsibility of the
DOE, it shall be the product of consensus to the maximum extent
possible.
     6.  The DOE may extend the 30-day period for either
responding to comments on a draft report or for issuing the draft
final primary report for an additional 20 days by providing
notice to U.S. EPA.  In appropriate circumstances, this time
period may be further extended in accordance with Part 	
hereof.

     H.  Availability of Dispute Resolution for Draft Final
Primary Documents;
     1.  Dispute resolution shall be available to the Parties  for
draft final primary reports as set forth in Part 	.
     2.  When dispute resolution is invoked on a draft primary
report, work may be stopped in accordance with the procedures  set
forth in Part 	 regarding dispute resolution.

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     I.  Finalization of Reports;
     The draft final primary report shall serve as the final
primary report if no party invokes dispute resolution regarding
the document or, if invoked, at completion of the dispute
resolution process should the DOE's position be sustained.  If
the DOE's determination is not sustained in the dispute
resolution process, the DOE shall prepare, within not more than
35 days, a revision of the draft final report which conforms to
the results of dispute resolution.  In appropriate circumstances,
the time period  for this revision period may be extended in
accordance with  Part 	 hereof.

     J.  Subsequent Modifications of Final Reports;
     Following finalization of any primary report pursuant to
Paragraph I above, U.S. EPA or the DOE may seek to modify the
report, including seeking additional field work, pilot studies,
computer modeling or other supporting technical work, only as
provided in Paragraphs 1 and 2 below.
     1.  U.S. EPA or the DOE may seek to modify a report after
finalization if  it determines, based on new information  (i.e.,
information that became available, or conditions that became
known,  after the report was finalized) that the requested
modification is necessary.  U.S. EPA or the DOE may seek such a
modification by submitting a concise written request to the
Project Manager of the other Party.  The request shall specify
the nature of the requested modification and how the request  is
based on new information.

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     2.   In the event that a consensus is not reached by the
Project Managers on the need for a modification,  either U.S. EPA
or the DOE may invoke dispute resolution to determine if such
modification shall be conducted.  Modification of a report shall
be required only upon a showing that:  (1) the requested
modification is based on significant new information, and (2) the
requested modification could be of significant assistance in
evaluating impacts on the public health or the environment, in
evaluating the selection of remedial alternatives, or in
protecting human health and the environment.
     3.   Nothing in this Subpart shall alter U.S. EPA's ability
to request the performance of additional work pursuant to Part
	 of this Agreement (Additional Work) which does not constitute
modification of a final document.

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                       RESOLUTION OF DISPUTES

     Except as specifically set forth elsewhere in this
Agreement, if a dispute arises under this Agreement,  the
procedures of this Part shall apply.
     All Parties to this Agreement shall make reasonable efforts
to informally resolve disputes at the Project Manager or
immediate supervisor level.  If resolution cannot be achieved
informally, the procedures of this Part shall be implemented to
resolve a dispute.

     A.  Within thirty (30) days after:  (1) the period
established for review of a draft final primary document pursuant
to Part 	 (Review of Submittals) of this Agreement, or (2) any
action which leads to or generates a dispute, the disputing
Party shall submit to the other Party a written statement of
dispute setting forth the nature of the dispute, the work
affected by the dispute, the disputing Party's position with
respect to the dispute and the information the disputing Party  is
relying upon to support its position.

      B.  Prior to any Party's issuance of a written statement  of
dispute, the disputing Party shall engage the other Party in
informal dispute resolution among the Project Managers  and/or
their immediate supervisors.  During this  informal dispute
resolution period the Parties shall meet as many  times  as are
necessary to discuss and attempt resolution of the dispute.

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     C.   If agreement cannot be reached on any issue within the
 informal  dispute resolution period, the disputing Party shall
 forward the written statement of dispute to the Dispute
 Resolution Committee  (DRC) thereby elevating the dispute to the
 DRC  for resolution.

     D.   The DRC will serve as a forum for resolution of disputes
 for  which agreement has not been reached through informal dispute
 resolution.  The Parties shall each designate one individual and
 an alternate to serve on the DRC.  The individuals designated to
 serve on  the DRC shall be employed at the policy level  (SES or
 equivalent) or be delegated the authority to participate on the
 DRC  for the purposes of dispute resolution under this Agreement.
 The  U.S.  EPA representative on the DRC is the Waste Management
 Division  Director of U.S. EPA's Region 	.  The DOE's
 designated member is the  [DOE equivalent].  Written notice of any
 delegation of authority from a Party's designated representative
 on the DRC shall be provided to all other Parties pursuant to the
 procedures of Part 	 (Notices).

     E.   Following elevation of a dispute to the DRC, the DRC
 shall have twenty-one (21) days to unanimously resolve  the
 dispute and issue a written decision. If the DRC is unable to
 unanimously resolve the dispute within this twenty-one  (21) day
period the written statement of dispute shall be forwarded to the
Senior Executive Committee (SEC) for resolution.

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     F.  The SEC will serve as the forum for resolution of
disputes for which agreement has not been reached by the DRC.
The U.S. EPA representative on the SEC is the Regional
Administrator of U.S. EPA's Region 	.  The DOE's
representative on the SEC is the DOE Operations Manager.  The
SEC members shall, as appropriate, confer, meet and exert their
best efforts to resolve the dispute and issue a written decision.
If unanimous resolution of the dispute is not reached within
twenty-one  (21) days, U.S. EPA's Regional Administrator shall
issue a written position on the dispute.  The TOE may, within
twenty-one  (21) days of the Regional Administrator's issuance of
U.S. EPA's position, issue a written notice elevating the dispute
to the Administrator of U.S. EPA for resolution in accordance
with all applicable laws and procedures.  In the event that the
DOE elects not to elevate the dispute to the Administrator within
the designated twenty-one (21) day escalation period, the DOE
shall be deemed to have agreed with Regional Administrator's
written position with respect to the dispute.

     G.  Upon escalation of a dispute to the Administrator of
U.S. EPA pursuant to Subpart F, the Administrator will review and
resolve the dispute within twenty-one  (21) days.  Upon request,
and prior to resolving the dispute, the U.S. EPA Administrator
shall meet and confer with the Secretary of the DOE to discuss
the issue(s) under dispute.  Upon resolution, the Administrator

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shall provide the DOE with a written final  decision setting forth
resolution of the dispute.

     H.  The pendency of any dispute under  this Part shall  not
affect the DOE's responsibility for timely  performance of the
work required by this Agreement,  except that the time period for
completion of work affected by such dispute shall be extended for
a period of time usually not to exceed the  actual time taken to
resolve any good faith dispute in accordance with the procedures
specified herein.  All elements of the work required by this
Agreement which are not affected by the dispute shall continue
and be completed in accordance with the applicable schedule.

     I.   When dispute resolution is in progress, work affected
by the dispute will immediately be discontinued if the Hazardous
Waste Division Director for U.S. EPA's Region 	 requests, in
writing, that work related to the dispute be stopped because, in
U.S. EPA's opinion, such work is inadequate or defective, and
such inadequacy or defect is likely to yield an adverse effect on
human health or the environment, or is likely to have a
substantial adverse effect on the remedy selection or
implementation process.  To the extent possible, U.S. EPA  shall
give the DOE prior notification that a work stoppage request  is
forthcoming.  After stoppage of work, if the DOE believes  that
the work stoppage is inappropriate or may have potential
significant adverse impacts, the DOE may meet with  the  Division

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Director to discuss the work stoppage.   Following this meeting,
and further consideration of the issues,  the Division Director
will issue, in writing, a final decision with respect to the work
stoppage.  The final written decision of the Division Director
may immediately be subjected to formal dispute resolution.   Such
dispute may be brought directly to the either the DRC or the SEC,
at the discretion of the DOE.

     J.  Within twenty-one (21) days of resolution of a dispute
pursuant to the procedures specified in this Part, the DOE shall
incorporate the resolution and final determination into the
appropriate plan, schedule or procedures and proceed to implement
this Agreement according to the amended plan, schedule or
procedures.

     K.  Resolution of a dispute pursuant to this Part of the
Agreement constitutes a final resolution of any dispute arising
under this Agreement.  The DOE shall abide by all terms and
conditions of any final resolution of dispute obtained pursuant
to this Part of this Agreement.

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                      ENFORCEABILITY

A.  The Parties agree that:
     (1)  Upon the effective date of this Agreement,  any
  standard, regulation,  condition,  requirement  or  order which
  has become effective under CERCLA and  is  incorporated into
  this Agreement is enforceable by any person pursuant to
  Section 310 of CERCLA,  and any violation  of such standard,
  regulation, condition,  requirement or  order will be subject
  to civil penalties under Sections 310(c)  and  109 of CERCLA;
  and
     (2)  all timetables or deadlines associated with the
  development, implementation and completion of the RI/FS
  shall be enforceable by any person pursuant to Section  310
  of CERCLA, and any violation of such timetables  or deadlines
  will be subject to civil penalties under  Sections 310(c)  and
  109 of CERCLA;
     (3) all terms and conditions of this Agreement which
  relate to interim or final remedial actions,  including
  corresponding timetables,  deadlines or schedules, and all
  work associated with the interim or final remedial actions,
  shall be enforceable by any person pursuant to Section
  310(c) of CERCLA, and any violation of such terms or
  conditions will be subject to civil penalties under
  Sections 310(c)  and 109 of CERCLA; and
     (4) any final resolution of a dispute  pursuant to Part
  	 of this Agreement which establishes  a term,  condition,
  timetable, deadline or schedule shall be  enforceable by any

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       person pursuant to Section 310(c) of CERCLA, and any
       violation of such term, condition, timetable, deadline or
       schedule will be subject to civil penalties under Sections
       310(c) and 109 of CERCLA.

     B.   Nothing in this Agreement shall be construed as
authorizing any person to seek judicial review of any action or
work where review is barred by any provision of CERCLA, including
Section 113(h) of CERCLA.

     C.   The Parties agree that all Parties shall have the right
to enforce the terms of this Agreement.

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                      STIPULATED PENALTIES

     A.  In the event that the DOE fails to submit a primary
document (i.e., Scope of Work, RI/FS Work Plan, Risk Assessment,
RI Report,  Initial Screening of Alternatives, FS Report,
Proposed Plan, Record of Decision, Remedial Design, Remedial
Action Work Plan) to U.S. EPA pursuant to the appropriate
timetable or deadline in accordance with the requirements of this
Agreement,  or fails to comply with a term or condition of this
Agreement which relates to an interim or final remedial action,
U.S. EPA may assess a stipulated penalty against the DOE.  A
stipulated penalty may be assessed in an amount not to exceed
$5,000 for the first week (or part thereof), and $10,000 for each
additional week (or part thereof) for which a failure set forth
in this Paragraph occurs.

     B.  Upon determining that the DOE has failed in a manner set
forth in Paragraph A, U.S. EPA shall so notify the DOE in
writing.  If the failure in question is not already subject to
dispute resolution at the time such notice is received, the DOE
shall have fifteen (15) days after receipt of the notice to
invoke dispute resolution on the question of whether the failure
did in fact occur.  The DOE shall not be liable for the
stipulated penalty assessed by U.S. EPA if the failure  is
determined, through the dispute  resolution process, not to have
occurred.  No assessment of a stipulated penalty shall be final
until the conclusion of dispute  resolution procedures related  to
the assessment of the stipulated penalty.

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     C.  The annual reports required by Section 120(e)(5)  of
CERCLA shall include, with respect to each final assessment of a
stipulated penalty against the DOE under this Agreement, each of
the following:
     1.  The facility responsible for the failure;
     2.  A statement of the facts and circumstances giving rise
         to the failure;
     3.  A statement of any administrative or other corrective
         action taken at the relevant facility, or a statement of
         why such measures were determined to be inappropriate;
     4.  A statement of any additional action taken by or at the
         facility to prevent recurrence of the same type of
         failure; and
     5.  The total dollar amount of the stipulated penalty
         assessed for the particular failure.

     D.  Stipulated penalties assessed pursuant to this Part
shall be payable to the Hazardous Substances Response Trust Fund
from funds authorized and appropriated for that specific purpose.

     E.  In no event shall this Part give rise to a stipulated
penalty in excess of the amount set forth in Section 109 of
CERCLA.

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     F.  This Part shall not affect the DOE's ability to obtain
an extension of a timetable, deadline or schedule pursuant to
Part 	 of this Agreement.

     G.  Nothing in this Agreement shall be construed to render
any officer or employee of the DOE personally liable for the
payment of any stipulated penalty assessed pursuant to this
Part.

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                             EXTENSIONS


     A.  Either a timetable and deadline or a schedule shall be

extended upon receipt of a timely request for extension and when

good cause exists for the requested extension.  Any request for

extension by the DOE shall be submitted in writing and shall

specify:

          1.   The timetable and deadline or the schedule that is
               sought to be extended;

          2.   The length of the extension sought;

          3.   The good cause(s) for the extension; and

          4.   Any related timetable and deadline or schedule
               that would be affected if the extension were
               granted.



     B.  Good cause exists for an extension when sought in regard

to:

          1.   An event of force majeure;

          2.   A delay caused by another party's failure to meet
               any requirement of this agreement;

          3.   A delay caused by the good faith invocation of
               dispute resolution or the initiation of judicial
               action;

          4.   A delay caused, or which is likely to be caused,
               by the grant of an extension in regard to another
               timetable and deadline or schedule; and

          5.   Any other event or series of events mutually
               agreed to by the Parties as constituting good
               cause.

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     C.  Absent agreement of the Parties with respect to the
existence of good cause, the DOE may seek and obtain a
determination through the dispute resolution process that good
cause exists.

     D.  Within seven days of receipt of a request for an
extension of a timetable and deadline or a schedule, U.S. EPA
shall advise the DOE in writing of its respective position on the
request.  Any failure by U.S. EPA to respond within the 7-day
period shall be deemed to constitute concurrence in the request
for extension.  If U.S. EPA does not concur in the requested
extension, it shall include in its statement of nonconcurrence an
explanation of the basis for its position.

     E.  If there is consensus among the Parties that the
requested extension is warranted, the DOE shall extend the
affected timetable and deadline or schedule accordingly.  If
there is no consensus among the Parties as to whether all or part
of the requested extension is warranted, the timetable and
deadline or schedule shall not be extended except in accordance
with determination resulting from the dispute resolution process.

     F.  Within seven days of receipt of a statement of
nonconcurrence with the requested extension, the DOE may invoke
dispute resolution.

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     G.  A timely and good faith request for an extension shall
toll any assessment of stipulated penalties or application for
judicial enforcement of the affected timetable and deadline or
schedule until a decision is reached on whether the requested
extension will be approved.  If dispute resolution is invoked and
the requested extension is denied, stipulated penalties may be
assessed and may accrue from the date of the original timetable,
deadline or schedule.  Following the grant of an extension, an
assessment of stipulated penalties or an application for judicial
enforcement may be sought only to compel compliance with the
timetable and deadline or schedule as most recently extended.

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                            FORCE MAJEURE

     A Force Majeure shall mean any event arising from causes
beyond the control of a Party that causes a delay in or prevents
the performance of any obligation under this Agreement,
including, but not limited to, acts of God; fire; war;
insurrection; civil disturbance; explosion; unanticipated
breakage or accident to machinery, equipment or lines of pipe
despite reasonably diligent maintenance; adverse weather
conditions that could.not be reasonably anticipated; unusual
delay in transportation; restraint by court order or order of
public authority; inability to obtain, at reasonable cost and
after exercise of reasonable diligence, any necessary
authorizations, approvals, permits or licenses due to action or
inaction of any governmental agency or authority other than the
DOE; delays caused by compliance with applicable statutes or
regulations governing contracting, procurement or  acquisition
procedures, despite the exercise of reasonable diligence; and
insufficient availability of appropriated funds, if the DOE
shall have made timely request  for such funds as part of the
budgetary process as set forth  in Part 	  (Funding)  of his
Agreement.  A Force Majeure shall also  include any  strike or
other labor dispute, whether or not within the control of the
Parties affected thereby.  Force Majeure shall not  include
increased costs or expenses of  Response Actions, whether or  not
anticipated at the time such Response Actions were  initiated.

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                               FUNDING

     It is the expectation of the Parties to this Agreement that
all obligations of the DOE arising under this Agreement will be
fully funded.  The DOE shall take all necessary steps and make
efforts to obtain timely funding to meet its obligations under
this Agreement.
     In accordance with Section 120(e)(5)(B) of CERCIA, 42 U.S.C.
§9620(e)(5)(B), the DOE shall include in its annual report to
Congress the specific cost estimates and budgetary proposals
associated with the implementation of this Agreement.
     Any requirement for the payment or obligation of funds,
including stipulated penalties, by the DOE established by the
terms of this Agreement shall be subject to the availability of
appropriated funds, and no provision herein shall be interpreted
to require obligation or payment of funds in violation of the
Anti-Deficiency Act, 31 U.S.C. §1341.  In cases where payment or
obligation of funds would constitute a violation of the Anti-
Deficiency Act, the dates established requiring the payment or
obligation of such funds shall be appropriately adjusted.
     If appropriated funds are not available to fulfill the DOE's
obligations under this Agreement, U.S. EPA and the State reserve
the right to initiate any other action which would be appropriate
absent this Agreement.

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          GENERIC TABLE OF CONTENTS FOR
           FEDERAL FACILITY AGREEMENTS
            UNDER CERCLA SECTION 120
Determinations	
Parties	
Definitions	
Site Description	
Findings of Fact	
Scope of Agreement	
Remedial Investigation	
Feasibility Study	
Interim Remedial Actions	
Remedial Action	
RCRA Closure	
Permits	
Creation of Danger	
Reporting	
Notification	
Project Managers	
Sampling and Data/Document Availability	
Retention of Records	
Site Access	
Five Year Review	
Other Claims	
Confidential Information	
Transfer of Property	
Public Participation	                 fl

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                    -2-
Public Comment.
Termination....
Effective Date.

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  -to Sr,v
      -       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      /                 WASHINGTON, D.C. 20460
                                             3C<- C
MEMOR/ .\T)UM

SUBJECT:    TransmittaJ of Workgroup's Suggested Modifications co
            DOD  - EPA Model JAG Language
FROM:       Bruce M. Diamond, Director	
            Office of Waste Programs Enforcement

TO:         Waste Management Division Directors
            Regional Counsels
            Regions I - X
                                                       •
     As you know, EPA reached agreement with the Department of
Energy  (DOE)  (see Memorandum dated May 27, 1988), and  the
Department of Defense (DOD) (see Memorandum dated June 17, 1988),
regarding model  language to be utilized in CERCLA cleanup
agreements known as lAGs.  The model language was developed
without direct state participation.  This was necessary to allow
DOE/DOD and EPA  to resolve many of the significant inter-agency
and intra-executive issues associated with the cleanup of Federal
facilities under CfRCLA.

     DOD and EPA initially determined that it would be unworkable
to bring in representatives from the fifty states, or  some
negotiating team representing the states, in the short period  it
was expected to  take to develop the model language.  Although
development of the model language took substantially longer than
initially expected, states were never invited to participate in
the initial development of the model language.  However, DOD,  DOE
and EPA clearly  recognized the importance of state participation
in the CERCLA process.  This included unanimous agreement that
state issues and state concerns must be addressed at site-specific
negotiations, with changes made to the model language  as necessary
to accommodate reasonable state issues and concerns.

     To facilitate a dialogue on significant Federal facility
issues, including lAG-specific issues, EPA initiated a Workgroup
among representatives of EPA, the National Association of
Attorneys General, the Association of State and Territorial Waste
Management Officials, and the National Governors Association.  The
state participants in the Workgroup determined that it would be
helpful to negotiate and reach agreement with DOD on specific
changes to the model language to address certain state issues  and
concerns.   The product of these negotiations, a package of
mutually accoptablp chancres to the model language,  is  attached -.0
this memorandum.

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                               - 2 -

       We have reviewed the attached package and have determined
that if any or all of the changes set forth in the package are
requested by a State in the context of site-specific negotiations,
these changes are acceptable to EPA.  We have agreed to accept
these changes in advance in an attempt to further expedite the
development of three-party lAGs.  However, our acceptance of the
attached package should not be construed to limit a state's
options; the development of this language should not preclude, or
in any way affect, the ability or right of a state to request
additional or different modifications to the DOD - EPA model
language to address legitimate state issues or concerns.

     Please continue to work with the states to develop acceptable
site-specific three-party lAGs.  We hope that the attached
language facilitates your settlement efforts.

     Finally, I have attached copies of the memoranda from the
State organizations to their member states and from DOD to the
military services transmitting the suggested modifications to the
model language.  These memoranda are attached to provide added
perspective with regard to the suggested modifications  to the
model language.

Attachment
i

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                         REGION 	,

                     STATE OF 	,

                             AND THE

                  UNITED STATES [DOD COMPONENT]
IN THE MATTER OF:              )
                               )
THE U.S. [DOD COMPONENT'S]     )     FEDERAL FACILITY
                               )     AGREEMENT UNDER
             )     CERCLA SECTION 120
                               )
                               )     Administrative
                               )     Docket Number:


     Based on the information available to the Parties on the

effective date of this FEDERAL FACILITY AGREEMENT (Agreement),

and without trial or adjudication of any issues of fact or law,

the Parties agree as follows:

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                          JURISDICTION
         Each Party is entering into this Agreement pursuant to
the following authorities:
         (i)   The U.S. Environmental Protection Agency (U.S.
EPA),  Region <>, enters into those portions of this Agreement
that relate to the remedial investigation/feasibility study
(RI/FS) pursuant to Section 120(e)(l) of the Comprehensive
Environmental Response-, Compensation, and Liability Act (CERCLA) ,
42 U.S.C. § 9620(e)(l), as amended by the Superfund Amendments
and Reauthorization Act of 1986 (SARA), Pub. L. 99-499
(hereinafter jointly referred to as CERCLA/SARA or CERCLA) and
[Sections 6001, 3008(h) and 3004(u) and  (v) of] the Resource
Conservation and Recovery Act (RCRA), 42 U.S.C. [§§ 6961,
6928(h), 6924(u) and  (v),] as amended by the Hazardous and Solid
Waste Amendments of 1984  (HSWA)(hereinafter jointly referred to
as RCRA/HSWA or RCRA) and Executive Order 12580;
         (ii) U.S. EPA, Region <>, enters into those portions of
this Agreement that relate to interim remedial actions and final
remedial actions pursuant to Section 120(e)(2) of CERCLA/SARA,
[Sections 6001, 3008(h) and 3004(u) and  (v) of] RCRA and
Executive Order 12580;
         (iii) The [DOD Component] enters into those portions of
this Agreement that relate to the RI/FS pursuant to Section
120(e)(1) of CERCLA,  [Sections 6001, 3008(h) and 3004(u) and(v)
of] RCRA, Executive Order 12580, the National Environmental
Policy Act, 42 U.S.C. § 4321, and the Defense Environmental
Restoration Program (DERP), 10 U.S.C. §  2701 et seq. ;
                               -2-

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         (iv) The [DOD Component] enters into those portions of
this Agreement that relate to interim remedial actions and final
remedial actions pursuant to Section 120(e)(2) of CERCLA/SARA,
[Sections 6001, 3004(u) and 3008(h) of] RCRA, Executive Order
12580 and the DERP.
         (v)  The [State] enters into this Agreement pursuant to
sections 120(f) and 121(f) CERCLA/SARA, 42 U.S.C. §§ 9620(f) and
9621(f), section 3006 of RCRA, 42 U.S.C. § 6926, and [cite any
applicable state law].

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                            PURPOSE

     A.  The general purposes of this Agreement are to:

         (1)  ensure that the environmental impacts associated
with past and present activities at the Site are thoroughly
investigated and appropriate remedial action taken as necessary
to protect the public health, welfare and the environment;
         (2)  establish a procedural framework and schedule for
developing, implementing and monitoring appropriate response
actions at the Site in accordance with CERCLA/SARA, the NCP,
Superfund guidance and policy, RCRA, RCRA guidance and policy,
and applicable state law; and,
         (3)  facilitate cooperation, exchange of information and
participation of the Parties in such actions.

     B.  Specifically, the purposes of this Agreement are to:
         (1) Identify Interim Remedial Action (IRA) alternatives
which are appropriate at the Site prior to the implementation of
final remedial action(s) for the Site. IRA alternatives shall be
identified and proposed to the Parties as early as possible prior
to formal proposal of IRAs to U.S. EPA and [the State] pursuant
to CERCLA/SARA and applicable state law.  This process is
designed to promote cooperation among the Parties in identifying
IRA alternatives prior to selection of final IRAs.
         (2)  Establish requirements for the performance of a RI
to determine fully the nature and extent of the threat to the
public health or welfare or the environment caused by the
                               -4-

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release and threatened release of hazardous substances,
pollutants or contaminants at the Site and to establish
requirements for the performance of a FS for the Site to
identify, evaluate, and select alternatives for the appropriate
remedial action(s) to prevent, mitigate, or abate the release or
threatened release of hazardous substances, pollutants or
contaminants at the Site in accordance with CERCLA/SARA and
applicable state law.
         (3)  Identify the nature, objective and schedule of
response actions to be taken at the Site.  Response actions at
the Site shall attain that degree of cleanup of hazardous
substances, pollutants or contaminants mandated by CERCLA/SARA
and applicable state law.
         (4)  Implement the selected interim and final remedial
action(s) in accordance with CERCLA and applicable state law and
meet the requirements of section 120(e)(2) of CERCLA for an
interagency agreement among the parties.
         (5)  Assure compliance, through this Agreement, with
RCRA and other federal and state hazardous waste laws and
regulations for matters covered herein.
         (6)  Coordinate response actions at the Site with the
mission and support activities at [installation].
         (7)  Expedite the cleanup process [including, at site-
specific negotiations, shortening the time frames specified in
these model provisions] to the extent consistent with protection
of human health and the environment.
         (8)  Provide [State] involvement in the initiation,
development, selection and enforcement of remedial actions to be
                               -5-

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undertaken at [installation], including the review of all
applicable data as it becomes available and the development of
studies, reports, and action plans; and to identify and integrate
State ARARs into the remedial action process.
         (9)  Provide for operation and maintenance of any
remedial action selected and implemented pursuant to this
Agreement.
                                -6-

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                       SCOPE OF AGREEMENT







     [The purpose of this section is to identify the units which



are to be addressed by the agreement and the units which will be



excluded from the agreement that will be addressed by other



authority, if any.  At some installations it will be appropriate



to cover all of the hazardous waste releases under this agreement



while at others it may not be appropriate.  Where all releases



are covered, there are two options.  First, the parties may agree



to have all units, including non-NPL and RCRA units, covered by



the section 120 decisionmaking process set out in this document.



The second option would be to include in an agreement a separate



decisionmaking process for the non-NPL and RCRA units.



Since the terms of this section will vary widely from site to



site, no attempt is made to provide model language.]

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          STATUTORY COMPLIANCE/RCRA-CERCLA INTEGRATION

     A.  The Parties intend to integrate the [DOD Component]'s
CERCLA response obligations and RCRA corrective action
obligations which relate to the release(s) of hazardous
substances, hazardous wastes/ pollutants or contaminants covered
by this Agreement into this comprehensive Agreement.   Therefore,
the Parties intend that activities covered by this agreement will
achieve compliance with CERCLA, 42 U.S.C. § 9601 et seq.;
satisfy the corrective action requirements of Sections 3004(u)
and (v) of RCRA, 42 U.S.C. § 6924(u) and  (v), for a RCRA permit,
and Section 3008(h), 42 U.S.C. § 6928(h), for interim status
facilities; and meet or exceed all applicable or relevant and
appropriate Federal and State laws and regulations, to the extent
required by Section 121 of CERCLA, 42 U.S.C. § 9621 and
applicable state law.

     B.  Based upon the foregoing, the Parties intend that any
remedial action selected, implemented and completed under this
Agreement will be protective of human health and the environment
such that remediation of releases covered by this Agreement shall
obviate the need for further corrective action under RCRA (i.e.,
no further corrective action shall be required).  The Parties
agree that with respect to releases of hazardous waste covered by
this Agreement that are associated with the NPL portions of the
site, RCRA shall be considered an applicable or relevant and
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appropriate requirement pursuant to Section 121 of CERCLA.
[Releases or other hazardous waste activities not covered by this
Agreement remain subject to all applicable state and federal
environmental requirements.]

     C.  The Parties recognize that the requirement to obtain
permits for response actions undertaken pursuant to this
Agreement shall be as provided for in CERCLA and the NCP.  The
Parties further recognize that on-going hazardous waste
management activities at the [installation] may require the
issuance of permits under Federal and State laws.  This Agreement
does not affect the requirements, if any, to obtain such permits.
However, if a permit is issued to the [DOD Component] for on-
going hazardous waste management activities at the Site, U.S. EPA
and, or [the State] shall reference and incorporate any
appropriate provisions, including appropriate schedules  (and the
provision for extension of such schedules), of this Agreement
into such permit.
         With respect to those portions of this Agreement
incorporated by reference into permits, the parties intend that
judicial review of the incorporated portions shall, to the extent
review is authorized by law, only occur under the provisions of
CERCLA.

     D.  Nothing in this Agreement shall alter the [DOD
Component]'s authority with respect to removal actions conducted
pursuant to Section 104 of CERCLA, 42 U.S.C. § 9604.
                               -9-

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               CONSULTATION WITH U.S. EPA AND THE
                       STATE OF [       ]

     Review and Comment Process for Draft and Final Comments

     A.  Applicability;
         The provisions of this Part establish the procedures
that shall be used by the: Parties to provide each other with
appropriate notice, review, comment, and response to comments
regarding RI/FS and RD/RA documents, specified herein as either
primary or secondary documents .  In accordance with Section 120
of CERCLA and 10 U.S.C. § 2705, the [DOD Component] will normally
be responsible for issuing primary and secondary documents to
U.S. EPA and [the State].  As of the effective date of this
Agreement, all draft and final reports for any deliverable
document identified herein shall be prepared, distributed and
subject to dispute in accordance with Paragraphs B through J
below.
   -  The designation of a document as "draft" or "final" is
solely for purposes of consultation with U.S. EPA and [the State]
in accordance with this Part.  Such designation does not affect
the obligation of the Parties to issue documents, which may be
referred to herein as  "final", to the public for review and
comment as appropriate and as required by law.

     B.  General Process for RI/FS and RD/RA documents;
     1.  Primary documents include those reports that are major,
discrete portions of RI/FS or RD/RA activities.  Primary
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documents are initially issued by the [DOD Component] in draft
subject to review and comment by U.S. EPA and [the State].
Following receipt of comments on a particular draft primary
document, the [DOD Component] will respond to the comments
received and issue a draft final primary document subject to
dispute resolution.  The draft final primary document will become
the final primary document 30 days after issuance if dispute
resolution is not invoked or as modified by decision of the
dispute resolution process.
     2.  Secondary documents include those reports that are
discrete portions of the primary documents and are typically
input or feeder documents.  Secondary documents are issued by the
[DOD Component] in draft subject to review and comment by U.S.
EPA and [the State].  Although the [DOD Component] will respond
to comments received, the draft secondary documents may be
finalized in the context of the corresponding draft final primary
document is issued.

     C.  Primary Reports;
     1.  The [DOD Component] shall complete and transmit draft
reports for the following primary documents to U.S. EPA and [the
State] for review and comment in accordance with the provisions
of this Part:
     [Note:  The list set forth below represents potential
primary documents and the type of information that typically
would be generated during a CERCLA cleanup at an NPL site.  This
list, and the list below of secondary documents, includes
discrete portions of the RI/FS or RD/RA and are subject to change

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in accordance with the NCP, [DOD Component] and U.S. EPA
guidance, and site specific requirements.   In practice, the
documents will also vary with scope and nature of the project,
and may either be combined or broken out into separate volumes.]
         1.   [Scope of Work]
         2.   [RI/FS Work Plan, including Sampling and
              Analysis Plan and QAPP]
         3.   [Risk Assessment]
         4.   [Site Characterization Report]
         5.   [Initial Screening of Alternatives]
         6.   [Treatability Studies Report and, Additional
              Site Characterization Report 2]
         7.   [Detailed Anaylsis of Alternatives]
         8.   [Proposed Plan]
         9.   [Record of Decision]
         10.  [Remedial Design]
         11.  [Remedial Action Work Plan]
     2.  Only the draft final reports for the primary documents
identified above shall be subject to dispute resolution.  The
[DOD Component] shall complete and transmit draft primary
documents in accordance with the timetable and deadlines
established in Part 	 (Deadlines) of this Agreement.

     D.  Secondary Documents;
     1.  The [DOD Component] shall complete and transmit draft
reports for the following secondary documents to U.S. EPA and
[the State] for review and comment in accordance with the
provisions of this Part:
         1.   [Initial Remedial Action/Data Quality Objectives]
                              -12-

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         2.   [Post-screening Investigation Work Plan]
         3.   [Sampling and Data Results]
     2.  Although U.S. EPA and [the State] may comment on the
draft reports for the secondary documents listed above, such
documents shall not be subject to dispute resolution except as
provided by paragraph B hereof.  Target dates shall be
established for the completion and transmission of draft
secondary reports pursuant to Part 	 (Deadlines) of this
Agreement.

     E.  Meetings of the Project Managers on Development of
Reports;
     The Project Managers shall meet approximately every [30]
days, except as otherwise agreed by the Parties, to review and
discuss the progress of work being performed at the site on the
primary and secondary documents.  Prior to preparing any draft
report specified in Paragraphs C and D above, the Project
Managers shall meet to discuss the report results in an effort to
reach a common understanding, to the maximum extent practicable,
with respect to the results to be presented in the draft report.

     F.  Identification and Determination of Potential ARARs;
     1.  For those primary reports or secondary documents that
consist of or include ARAR determinations, the Project Managers
shall meet prior to the issuance of a draft report, to identify
and propose, to the best of their ability, all potential ARARs
pertinent to the report being addressed.  [The State] shall
identify all potential state ARARs as early in the remedial

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process as possible consistent with the requirements of CERCLA
section 121 and the NCP. The [DOD Component] shall consider any
written interpretations of ARARs provided by the state.  Draft
ARAR determinations shall be prepared by the [DOD Component] in
accordance with Section 121(d)(2) of CERCLA, the NCP and
pertinent guidance issued by U.S. EPA that is consistent with
CERCLA and the NCP.
     2.  In identifying potential ARARs, the Parties recognize
that actual ARARs can be identified only on a site-specific basis
and that ARARs depend on the specific hazardous substances,
pollutants and contaminants at a site, the particular actions
proposed as a remedy and the characteristics of a site.  The
Parties recognize that ARAR identification is necessarily an
iterative process and that potential ARARs must be re-examined
throughout the RI/FS process until a ROD is issued.

     G.  Review and comment on Draft Reports;
     1.  The [DOD Component] shall complete and transmit each
draft primary report to U.S. EPA and [the State] on or before the
corresponding deadline established for the issuance of the
report.  The [DOD Component] shall complete and transmit the
draft secondary document in accordance with the target dates
established for the issuance of such reports established pursuant
to Part 	 (Deadlines) of this Agreement.
     2.  Unless the Parties mutually agree to another time
period, all draft reports shall be subject to a 30-day period for
review and comment.  Review of any document by the U.S. EPA and
[the State] may concern all aspects of the report  (including
                               -14-

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completeness) and should include, but is not limited to,
technical evaluation of any aspect of the document, and
consistency with CERCLA, the NCP and any pertinent guidance or
policy issued by the U.S EPA, and with applicable state law.
Comments by the U.S. EPA and [the State] shall be provided with
adequate specificity so that that [DOD Component] may respond to
the comment and, if appropriate, make changes to the draft
report.  Comments shall refer to any pertinent sources of
authority or references upon which the comments are based, and,
upon request of the [DOD Component], the U.S. EPA or [the State]
shall provide a copy of the cited authority or reference.  In
cases involving complex or unusually lengthy reports, U.S. EPA or
[the State] may extend the 30-day comment period for an
additional 20 days by written notice to the [DOD Component] prior
to the end of the 30-day period.  On or before the close of the
comment period, U.S. EPA and [the State] shall transmit by next
day mail their written comments to the  [DOD Component].
     3.  Representatives of the [DOD Component] shall make
themselves readily available to U.S. EPA and [the State] during
the comment period for purposes of informally responding to
questions and comments on draft reports.  Oral comments made
during such discussions need not be the subject of a written
response by the [DOD Component] on the close of the comment
period.
     4,  In commenting on a draft report which contains a
proposed ARAR determination, U.S. EPA or [the State] shall
include a reasoned statement of whether they object to any
portion of the proposed ARAR determination. To the extent that
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U.S. EPA c   "the State] does object, it shall explain the basis
for its objection in detail and shall identify any ARARs which it
believes were not properly addressed in the proposed ARAR
determination.
     5.  Following the close of the comment period for a draft
report, the  [DOD Component] shall give full consideration to all
written comments on the draft report submitted during the comment
period.  Within 30 days of .the close of the comment period on a
draft secondary report, the [DOD Component] shall transmit to
U.S. EPA and [the State] its written response to comments
received within the comment period.  Within 30 days of the close
of the comment period on a draft primary report, the [DOD
Component] shall transmit to U.S. EPA and [the State] a draft
final primary report, which shall include the [DOD Component]'s
response to all written comments, received within the comment
period.  While the resulting draft final report shall be the
responsibility of the  [DOD Component], it shall be the
product of consensus to the maximum extent possible.
     6.  The [DOD Component] may extend the 30-day period for
either responding to comments on a draft report or for issuing
the draft final primary report for an additional 20 days by
providing notice to U.S. EPA and [the State].  In appropriate
circumstances, this time period may be further extended in
accordance with Part 	 (Extensions) hereof.

     H.  Availability of Dispute Resolution for Draft Final
Primary Documents;
                              -16-

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         1.   Dispute resolution shall be available to the
Parties for draft final primary reports as set forth in Part
(Dispute Resolution).
         2.   When dispute resolution is invoked on a draft
primary report, work may be stopped in accordance with the
procedures set forth in Part 	 (Dispute Resolution).
     I.  Finalization of Reports;
     The draft final primary report shall serve as the final
primary report if no party invokes dispute resolution regarding
the document or, if invoked, at completion of the dispute
resolution process should the [DOD Component]'s position be
sustained.  If the [DOD Component]'s .determination is not
sustained in the dispute resolution process, the  [DOD Component]
shall prepare, within not more than 35 days, a revision of the
draft final report which conforms to the results of dispute
resolution.  In appropriate circumstances, the time period for
this revision period may be extended in accordance with Part 	
(Extensions) hereof.

     J.  Subsequent Modifications of Final Reports;
     Following finalization of any primary report pursuant to
Paragraph I above, any party to this Agreement may seek to modify
the report, including seeking additional field work, pilot
studies, computer modeling or other supporting technical work,
only as provided in Paragraphs 1 and 2 below.
     1.  A party may seek to modify a report after finalization
if it determines, based on new information (i.e., information
                              -17-

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that became available, or conditions that became known, after the
report was finalized) that the requested modification is
necessary.  A party may seek such a modification by submitting a
concise written request to the Project Manger of the other
Parties.   The request shall specify the nature of the requested
modification and how the request is based on new information.
     2.  In the event that a consensus is not reached by the
Project Managers on the need for a modification, any party may
invoke dispute resolution to determine if such modification shall
be conducted.  Modification of a report shall be required only
upon a showing that: (1) the requested modification is based on
significant new information, and (2) the requested modification
could be of significant assistance in evaluating impacts on the
public health or the environment, in evaluating the selection of
remedial alternatives, or in protecting human health and the
environment.
     3.  Nothing in this Subpart shall alter U.S. EPA's or [the
State's] ability to request the performance of additional work,
which was not contemplated by this Agreement.  The  [DOD
Component]'s obligation to perform such work must be established
by either a modification of a report or document or by amendment
to this Agreement.
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                     RESOLUTION OF DISPUTES

     Except as specifically set forth elsewhere in this
Agreement, if a dispute arises under this Agreement, the
procedures of this Part shall apply.
     All Parties to this agreement shall make reasonable efforts
to informally resolve disputes at the Project Manager or
immediate supervisor level.  If resolution cannot be achieved
informally, the procedures of this Part shall be implemented to
resolve a dispute.

     A.  Within thirty (30) days after: (1) issuance of a draft
final primary document pursuant to Part 	 (Consultation with
U.S. EPA and the State) of this agreement, or (2) any action
which leads to or generates a dispute, the disputing Party shall
submit to the other Parties a written statement of dispute
setting forth the nature of the dispute, the work affected by the
dispute, the disputing Party's position with respect to the
dispute and the information the disputing Party is relying upon
to support its position.

     B.  Prior to any Party's issuance of a written statement of
dispute, the disputing Party shall engage the other Parties in
informal dispute resolution among the Project Managers and/or
their immediate supervisors.  During this informal dispute
resolution period the Parties shall meet as many times as are
necessary to discuss and attempt resolution of the dispute.
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     C.  The Dispute Resolution Committee (DRC) will serve as a
forum for resolution of disputes for which agreement has not been
reached through informal dispute resolution.  The Parties shall
each designate one individual and an alternate to serve on the
DRC.  The individuals designated to serve on the DRC shall be
employed at the policy level (Senior Executive Service [SES] or
equivalent) or be delegated the authority to participate on the
DRC for the purposes of dispute resolution under this Agreement.
The U.S. EPA's representative on the DRC is the Waste Management
Division Director of U.S. EPA's Region 	.  The [State]
representative on the DRC is 	
	.  The [DOD Component]'s designated
member is the [DOD Component] equivalent.  Written notice of any
delegation of authority from a Party's designated representative
on the DRC shall be provided to all other Parties pursuant to the
procedures of Part 	 (Notices).

     D.  Following elevation of a dispute to the DRC, the DRC
shall have twenty-one  (21) days to unanimously resolve the
dispute and issue a written decision signed by all parties.  If
the DRC is unable to unanimously resolve the dispute within this
twenty-one (21) day period the written statement of dispute shall
be forwarded to the Senior Executive Committee (SEC) for
resolution.

     E.  The SEC will  serve as the forum for resolution of
disputes for which agreement has not been reached by the DRC.
The U.S. EPA representative on the SEC is the Regional
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Administrator of the U.S. EPA's Region 	.   The [State]
representative on the SEC is 	.   The [DOD Component]'s
representative on the SEC is the [DOD Component] equivalent.  The
SEC members shall, as appropriate, confer,  meet and exert their
best efforts to resolve the dispute and issue a written decision
signed by all parties.  If unanimous resolution of the dispute is
not reached within twenty-one (21) days, U.S. EPA's Regional
Administrator shall issue written position on the dispute.  The
[DOD Component] or [the State] may, with twenty-one (21) days of
the issuance of U.S. EPA's position, issue a written notice
elevating the dispute to the Administrator of U.S. EPA for
resolution in accordance with all applicable laws and procedures.
In the event that a party elects not to elevate the dispute to
the Administrator within the designated twenty-one (21) day
escalation period, the party shall be deemed to have agreed with
Regional Administrator's written position with respect to the
dispute.

     F.  Upon escalation of a dispute to the Administrator of
U.S. EPA pursuant to Subpart E, the Administrator will review and
resolve the dispute within twenty-one (21) days.  Upon request,
and prior to resolving the dispute, the parties U.S. EPA
Administrator shall meet and confer with the [DOD Component's]
Secretariat-Representative and [the commissioner of the state
agency] to discuss the issue(s) under dispute. Upon resolution,
the Administrator shall provide the other parties with a written
final decision setting forth resolution of the dispute.  The
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duties of the Administrator set forth in this Part shall not be
delegated.

     G.  [The State] reserves its right to maintain an action
under section !21(f)(3)(B) of CERCLA, 42 U.S.C. § 9621(f)(3)(B)
to challenge the selection of a remedial action that does not
attain a legally applicable or relevant and appropriate standard,
requirement, criteria or limitation.

     H.  The pendency of any dispute under this Part shall not
affect the  [DOD Component]'s responsibility for timely
performance of the work required by this Agreement, except that
the time period for completion or work affected by such dispute
shall be extended for a period of time usually not to exceed the
actual time taken to resolve any good faith dispute in accordance
with the procedures specified herein.  All elements of the work
required by this Agreement which are not affected by the dispute
shall continue and be completed in accordance with the applicable
schedule.

     I.  When dispute resolution is in progress, work affected by
the dispute will immediately be discontinued if the Hazardous
Waste Division Director for U.S. EPA's Region 	 requests, in
writing, that work related to the dispute be stopped because, in
U.S. EPA's  opinion, such work is inadequate or defective, and
such inadequacy or defect is likely to yield an adverse effect on
human health or the environment, or is likely to have a
substantial adverse effect on the remedy selection of
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implementation process.  The state may request the U.S. EPA's
Region 	 Division Director to order work stopped for the
reasons set out above.  To the extent possible, the party seeking
a work stoppage shall consult with the the other parties prior to
initiating a work stoppage request.  After stoppage of work, if a
party believes that the work stoppage is inappropriate or may
have potential significant adverse impacts, the party may meet
with the party ordering a work stoppage to discuss the work
stoppage. Following this meeting, and further consideration of
the issues, the U.S. EPA Division Director will issue, in
writing, a final decision with respect to the work stoppage.  The
final written decision of the U.S. EPA Division Director may
immediately be subjected to formal dispute resolution.  Such
dispute may be brought directly to either the DRC or the SEC, at
the discretion of the party requesting dispute resolution.

     J.  Within twenty-one (21) days of resolution of a dispute
pursuant to the procedures specified in this Part, the [DOD
Component] shall incorporate the resolution and final
determination into the appropriate plan, schedule or procedures
and proceed to implement this Agreement according to the amended
plan, schedule or procedures.

     K.  Resolution of a dispute pursuant to this Part of the
Agreement constitutes a final resolution of any dispute arising
under this Agreement.  All Parties shall abide by all terms and
conditions of any final resolution of dispute obtained pursuant
to this Part of this Agreement.
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                    ENFORCEABILITY

A.  The Parties agree that:
    (1)  Upon the effective date of this Agreement, any
standard, regulation, condition, requirement or order which
has become effective under CERCLA and is incorporated into
this agreement is enforceable by any person pursuant to
Section 310 of CERCLA, and any violation of such standard,
regulation, condition, requirement or order will be subject
to civil penalties under Sections 310(c) and 109 of CERCLA;
and
    (2)  all timetables or deadlines associated with the
   j-
RI/FS shall be enforceable by any person pursuant to Section
310 of CERCLA, and any violation of such timetables or
deadlines will be subject to civil  penalties under Sections
310(c) and 109 of CERCLA;
    (3)  all terms and conditions of this Agreement which
relate to interim or final remedial actions, including
corresponding timetables, deadlines or schedules, and all
work associated with the interim or final remedial actions,
shall be enforceable by any person pursuant to Section
310(c) of CERCLA, and any violation of such terms or
conditions will be subject to civil penalties under Sections
310(c) and 109 of CERCLA; and
    (4)  any final resolution of a dispute pursuant to Part
	 of this Agreement which establishes a term, condition,
timetable, deadline or schedule shall be enforceable by any
person pursuant to Section 310(c) of CERCLA, and any
                         -24-

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     violation of such term, condition, timetable, deadline or
     schedule will be subject to civil penalties under Sections
     310(c) and 109 of CERCLA.

     B.  Nothing in this Agreement shall be construed as
authorizing any person to seek judicial review of any action or
work where review is barred by any provision of CERCLA, including
Section 113(h) of CERCLA.

     C.  Nothing in this agreement shall be construed as a
restriction or waiver of any rights the U.S. EPA or [the State]
may have under CERCLA, including but not limited to any rights
under sections 113 and 310, 42 U.S.C. §§ 9613 and 9659.  The DOD
does not waive any rights it may have under CERCLA section 120,
SARA section 211 and Executive Order 12580.

     D.  The parties agree to exhaust their rights under Part 	
[Dispute Resolution] prior to exercising any rights to judicial
review that they may have.

     E.  The Parties agree that all Parties shall have right to
enforce the terms of this Agreement.
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                            DEADLINES

[This model provision assumes no investigatory work is in
progress at the site and no schedules have been previously
established for study work.  The degree of specificity and
completeness of the deadlines contained herein shall be based
upon information possessed at the time of development of the
site-specific agreement.]
     A.  The following deadlines have been established, by U.S.
EPA and the State, for the submittal of draft primary documents
pursuant to this Agreement:
         1.   [Scope of Work}
     B.  Within twenty-one (21) days of the effective date of
this Agreement, the [DOD Component] shall propose deadlines for
completion of the following draft primary documents:
         2.   [RI/FS Work Plan, including Sampling and Analysis
              Plan and QAPP]
         3.   [Risk Assessment]
         4.   [Site Characterization Report]
         5.   [Initial Screening of Alternatives]
         6.   [Treatability Studies Report and, or Additional
              Site Characterization Report]
         7.   [Detailed Analysis of Alternatives]
         8.   [Proposed Plan]
         9.   [Record of Decision]
     Within fifteen (15) days of receipt, U.S. EPA and the State
shall review and provide comments to the  [DOD Component]
regarding the proposed deadlines.  Within fifteen (15) days
following receipt of the comments the  [DOD Component] shall, as
appropriate, make revisions and reissue the proposal.  The
parties shall meet as necessary to discuss and finalize the
proposed deadlines.  If the Parties agree on proposed deadlines,

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the finalized deadlines shall be incorporated into the
appropriate Work Plans.  If the Parties fail to agree within
thirty (30) days on the proposed deadlines, the matter shall
immediately be submitted for dispute resolution pursuant to Part
	 (Dispute Resolution).
     The final deadlines established pursuant to this Paragraph
shall be published by U.S. EPA and the State.

     C.  Within twenty-one (21) days of issuance of the Record of
Decision, the [DOD Component] shall propose deadlines for
completion of the following draft primary documents:
         9.   [Remedial Design]
         10.  [Remedial Action Work Plan]
     These deadlines shall be proposed, finalized and published
utilizing the same procedures set forth in Paragraph B. above.

     D.  The deadlines set forth in this Part, or to be
established as set forth in this Part, may be extended pursuant
to Part 	 (Extensions) of this Agreement.  The Parties
recognize that one possible basis for extension of the deadlines
for completion of the Remedial Investigation and Feasibility
Study Reports is the identification of significant new Site
conditions during the performance of the remedial investigation.
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                           EXTENSIONS



     A.   Either a timetable and deadline or a schedule shall be

extended upon receipt of a timely request for extension and

/hen good cause exists for the requested extension.   Any request

for extension by the [DOD Component]  shall be submitted in

writing and shall specify:

         1.   The timetable and deadline or the schedule that is
              sought to be extended:

         2.   The length of the extension sought;

         3.   The good cause(s) for the extension; and

         4.   Any related timetable and deadline or schedule that
              would be affected if the extension were granted.

     B.  Good cause exists for an extension when sought in regard

to i

         1.   An event of force majeure;

         2.   A delay caused by another party's failure to meet
              any requirement of this agreement;

         3.   A delay caused by the good faith invocation of
              dispute resolution or the initiation of judicial
              action;

         4.   A delay caused, or which is likely to be caused, by
              the grant of an extension in regard to another
              timetable and deadline or schedule; and

         5.   Any other event or series of events mutually agreed
              to by the Parties as constituting good cause.

     C.  Absent agreement of the Parties with respect to the

existence of good cause, the [DOD Component] may seek and obtain

a determination through the dispute resolution process that good

cause exists.
                              -28-

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     D.  Within seven days of receipt of a request for an
extension of a timetable and deadline or a schedule, U.S. EPA and
[the State] shall advise the [DOD Component] in writing of their
respective positions on the request.  Any failure by U.S. EPA or
[the State] to respond within the 7-day period shall be deemed to
constitute concurrence in the request for extension.  If U.S. EPA
or [the State] does not concur in the requested extension, it
shall include in its statement of nonconcurrence an explanation
of the basis for its position.

     E.  If there is consensus among the Parties that the
requested extension is warranted, the [DOD Component] shall
extend the affected timetable and deadline or schedule
accordingly.  If there is no consensus among the Parties as to
whether all or part of the requested extension is warranted, the
timetable and deadline or schedule  shall not be extended except
in accordance with a determination  resulting from the dispute
resolution process.

     F.  Within seven days of receipt of a statement of
nonconcurrence with the requested extension, the [DOD Component]
may invoke dispute resolution.

     G.  A timely and good faith request for an extension shall
toll any assessment of stipulated penalties or application for
Judicial enforcement of the affected timetable and deadline or
schedule until a decision is reached on whether the requested
extension shall be approved.  If dispute resolution is invoked
                              -29-

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and the requested extension is denied, stipulated penalties may



be assessed and may accrue from the date of the original



timetable, deadline or schedule.  Following the grant of an



extension, an assessment of stipulated penalties or an



application for judicial enforcement may be sought only to compel



compliance with the timetable and deadline or schedule as most



recently extended.
                               -30-

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                             FUNDING

     It is the expectation of the Parties to this Agreement that
all obligations of the [DOD Component] arising under this
Agreement will be fully funded.  The  [DOD Component] agrees to
seek sufficient funding through the DOD budgetary process to
fulfill its obligations under this Agreement.
     In accordance with Section 120(e)(5)(B) of CERCLA, 42 U.S.C.
§ 9620(e)(5)(B), the [DOD Component]  shall include in its annual
report to Congress the specific cost  estimates and budgetary
proposals associated with the implementation of this Agreement.
     Any requirement for the payment  or obligation of funds,
including stipulated penalties, by the [DOD Component]
established by the terms of this agreement shall be subject to
the availability of appropriated funds, and no provision herein
shall be interpreted to require obligation or payment of funds in
violation of the Anti-Deficiency Act, 31 U.S.C. § 1341.  In cases
where payment or obligation of funds  would constitute a violation
of the Anti-Deficiency Act, the dates established requiring the
payment or obligation of such funds shall be appropriately
adjusted.
     If appropriated funds are not available to fulfill the [DOD
Component]'s obligations under this Agreement, U.S. EPA and [the
State] reserve the right to initiate  an action against any other
person, or to take any response action, which would be
appropriate absent this Agreement.
     Funds authorized and appropriated annually by Congress under
the "Environmental Restoration, Defense" appropriation in the
                              -31-

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Department of Defense Appropriation Act and allocated by the
DASD(E) to the [DOD Component] will be the source of funds for
activities required by this Agreement consistent with section 211
of SARA, 10 U.S.C. Chapter 160.  However, should the
Environmental Restoration, Defense appropriation be inadequate in
any year to meet the total [DOD Component] CERCLA implementation
requirements, the DOD shall employ and the [DOD Component] shall
follow a standardized DOD prioritization process which allocates
that year's appropriations in a manner which maximizes the
protection of human health and the environment.  A standardized
DOD prioritization model shall be developed and utilized with the
assistance of U.S. EPA and the states.
                              -32-

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                   THE OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE

                                 WASHINGTON, O.C. Z0301-IOOO
                                                            MAR i 7 1989
PRODUCTION AND
   LOGISTICS
        MEMORANDUM FOR DEPUTY FOR ENVIRONMENT,  SAFETY AND OCCUPATIONAL
                       HEALTH,  OASA (I&L)
                       DEPUTY DIRECTOR FOR ENVIRONMENT, OASN (S&L)
                       DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE,
                       (ErS&OH)  SAF/RQ
                      DIRECTOR,  DEFENSE LOGISITICS  AGENCY  (DLA-W)

        SUBJECT:  Suggested IAG Language from the State and Federal Agency
                 Workgroup


             Over the last three months,  DoD representatives met with
        State organizations to develop acceptable state language on
        matters covered in the original model IAG language that we agreed
        to with the Environmental Protection Agency for National Priority
        List  Sites.   Representatives of the National Association of
        Attorneys General, the Association of State and Territorial Solid
        Waste Management Officials, and the National Governors'
        Association worked with us.

             On all but the force majeure and stipulated penalties
        provisions,  we reached agreement with the state organizations on
        changes to the DoD-EPA model language.   EPA also accepts the use
        of this language in agreements.  A copy of this agreed upon
        language  is attached.  The DoD components should accept without
        reservation a state's use of all,  or any subset of these
        provisions in the IAG negotiations.  They are a reasonable
        accommodation of our mutual interests to provide meaningful state
        participation in our cleanup activities.  Their direct use should
        facilitate the negotiations.

             The  above state associations are informing their members
        that  the  attached provisions are a way to soundly handle the
        matters that they cover and that DoD and EPA will accept them.
        This  should promote individual state use^.  However, they cannot
        bind  their member states.  You may find some states asking for
        more  favorable language to their interests on these IAG
        provisions.   In those instances,  you should feel free to discuss
        revisions that you would like, also.  Installation negotiators

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should continue to consider any additional state concerns on      ^B
these provisions and evaluate their reasonableness in the context
of the entire IAG negotiations. The negotiators should continue
to follow existing Service guidance on stipulated penalties and
force majeure.
                            William H. Parker, III, P.E.
                      Deputy Assistant Secretary of Defense
                                 (Environment)
Attachment
                                                                  i

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                                               March 17, 1989

MEMORANDUM

TO:       Governors
          State Attorneys General
          State Assistant Attorneys General
          State Superfund Program Managers

FROM:   Ray Scheppach,  Executive Directo
          National Governors' Association

          Christine T. Milliken. Executive Director and General Counsel,
          National Association of Attorneys General
          Tom Kennedy, Executive Director, |
          Association of State and Territorial Solid Waste Management Officials

RE:      Suggested language for three party Federal Facility Interagency Agreements for National
          Priority List (NPL) sites


Enclosed for your information  and reference is suggested language for a three party -state, U.S.
Environmental Protection Agency (EPA), and U.S. Department of Defense (DOD) - Interagency
Agreement (LAG)  intended to enable DOD facilities to obtain compliance with CERCLA and
applicable state laws. This agreement should facilitate negotiations among the three parties when
Superfund actions are taken or anticipated at DOD installations. It was developed by staff of the
National Governors' Association (NGA), the National Association of Attorneys General (NAAG), the
Association of State and Territorial Solid Waste Management Officials (ASTSWMO), state officials
from California, Colorado, Ohio, Maine, Minnesota, Washington, Illinois, Arizona, and DOD repre-
sentatives. The three associations and state representatives undertook this effort as part of a larger
effort to involve states in the implementation of The Superfund Amendments and Reauthorization Act
of 1986 (SARA).

The enclosed suggested language revises the two party EPA/DOD Section 120 model LAG developed
last year to incorporate a number of state concerns. The majority of language additions were made to
reflect the state's participation as a party to these agreements. While many issues are addressed, not all
key provisions which are subject to negotiation are included. Although the suggested language reflects
the consensus of the workgroup there was not unanimous consent on the wording of each provision.
Further, the language was developed in the absence of site specific issues and the history of any one
facility. Therefore, we recognize that this  language may not be  acceptable to all fifty states or be
applicable to all sites within a state.

Should a state choose, however, to use this LAG as written, both EPA and DOD will accept it without
reservation. The suggested language is an attempt to write language which in  whole and part can be
useful to the  greatest number of states at the greatest possible number of DOD facilities. It is our
expectation that the enclosure will provide a basis for the initiation of negotiations and lead to expedited
site-specific agreements.

Although the suggested  language covers a range of subjects, there are two issues which are in the
DOD/EPA model agreement that are not part of the enclosure. In addition there are other provisions

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which are not reflected in either the DOD/EPA agreement or the state/EPA/DOD suggested language
that are typically found in state agreements. The two issues not in the enclosure are force majeure and
stipulated penalties. The state representatives  felt the language provided by DOD on force majeure
was too broad. With regard to stipulated penalties, the central  issue is the ability of states to invoke
penalties against federal facilities. Because no agreements were reached on these issues they were
deleted. These issues may be resolved as necessary in individual  LAG negotiations.

The enclosed suggested language does not deal with the reimbursement of state costs associated with
participating in remedial actions at DOD installations. Separate discussions between the states and
DOD are proceeding to establish a nationwide process for paying these costs. While the cost issues are
being worked out, DOD has agreed to two options for dealing with the reimbursement of state costs.
One option is to reserve the cost issue pending the completion  of discussions between the states and
DOD at the national level. The second option DOD may exercise is to pay state costs through individual
installation agreements. At least two recent DOD/state  agreements have included payment of state
costs but only for a two year period with a clause to  reopen the agreement upon completion of the
state/DOD discussions. The state associations will update the states on the progress of discussions with
DOD on the cost issue.

It is our hope that the enclosure will help facilitate and encourage successful negotiation of agreements
at DOD installations. Also enclosed for your review are both DOD's and EPA's communications to
their installations and regional offices regarding this effort Should you have any questions please do
not hesitate to contact Chris O'Donnell, NGA, 202/624-7871, Herb Johnson, NAAG, 202/628-6031 or
Connie Saulter, ASTSWMO,  202/624-5828.

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                            REGION VIII

                     999 18th STRF.ET - SUITE 500

                  DENVER, COLORADO  80202-2405
                            SEP 2 0 1989

Ref:  SRC

Mr. Dominick J. Sanchini, President
Rocky Flats Plant, Aerospace Operations
Rockwell International Corporation
P.O. Box 464
Golden, Colorado  80402-0464

                                Re:  RCRA (3008) VIII-89-26

Dear Mr. Sanchini:

     As you are aware, EPA and the State of Colorado entered into
a Federal Facilities Compliance Agreement with the Department of
Energy on September  18,  1989.  This Agreement addresses certain
RCRA violations at the Rocky Flats facility.  During negotiations
with DOE, EPA made clear its intention to issue a compliance
order to Rockwell International Corporation as a co-operator of
the facility.  I have .enclosed with this letter a copy of the
Complaint,  Compliance Order and Notice of Opportunity for Hearing
which we are issuing to you.

     We have drafted the compliance order section of this
document to require the same actions that DOE agreed to in the
Federal Facilities Compliance Agreement, and anticipate that
compliance with this document will not require additional or
different actions than those required to comply with the
Agreement.

     As with all actions taken by the Region, we encourage you to
set up an informal conference, if desired, to discuss this matter
with us.  If you have any legal questions, or desire to arrange
such a conference, please contact Lorraine Ross, of our Office of
Regional Counsel at 294-7584.  If you have any technical
questions,  please contact Nathaniel Miullo,  of my  staff,  at
293-1668.
                            Robert L.  Duprey,  Director
                            Hazardous  Waste Management Division
Enclosure

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                               UNITED STATES
                    ENVIRONMENTAL PROTECTION AGENCY
                              REGION VIII

                   Docket No.  RCRA (3008) VIII-89-26

IN THE MATTER OF:                 )
                                  )
Rockwell International Corporation)   COMPLAINT, COMPLIANCE ORDER,
Rocky Flats Plant                 )   AND NOTICE OF OPPORTUNITY
Golden, Colorado                  )   FOR HEARING
                                  )
Respondent.                       )
     This is a civil administrative action instituted pursuant to

section 3008 of the Resource Conservation and Recovery Act

(RCRA), 42 U.S.C. § 6928.   Section 3008 of RCRA authorizes the

Administrator of the Environmental Protection Agency (EPA) to

issue such complaints whenever the Administrator has information

that any person has violated or is in violation of any

requirement of Subtitle C  of RCRA, 42 U.S.C. §§ 6921-6939.  The

requirements of Subtitle C also include the requirements of the

authorized program in a State which has been authorized to carry

out a hazardous waste program under section 3006 of RCRA, 42

U.S.C. § 6926.



     Pursuant to section 3006(b) of RCRA, 42 U.S.C. § 6926(b), on

November, 2, 1984, the Administrator of EPA authorized the State

of Colorado to administer  and enforce a hazardous waste program

in lieu of the federal program.  The State subsequently was

authorized for other portions of RCRA on November 7, 1986 and

July 14, 1989.  Section 3008(a)(2) of RCRA, 42 U.S.C.

§ 6928(a)(2), provides that the Administrator give notice to the

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State prior to initiating an action in an authorized State.  EPA



notified the State of Colorado that an administrative complaint



and compliance order were being prepared in this matter.








     The State authorized program does not include certain



provisions of the Hazardous and Solid Waste Amendments of 1984



(HSWA), Public Law No.98-616, 98 Stat. 3221 (1984).  Therefore



the EPA enforces these provisions of HSWA and its implementing



regulations.








     Complainant in this action is the Director, Hazardous Waste



Management Division, EPA, Region VIII, who is the person to whom



authority has been delegated to issue such complaints in the



State of Colorado.








     Complainant will show that Rockwell International



Corporation (Respondent), doing business at the Rocky Flats Plant



in Golden, Colorado has violated RCRA, as amended, 42 U.S.C.



§ 6901  et seq.,  and as further amended by HSWA, Public Law 98-616



and the regulations promulgated thereunder.








                      ALLEGATIONS



     1.   Rockwell International Corporation (Rockwell) operates,



and has operated, a hazardous waste management facility engaged



in the  treatment, storage,  and disposal of hazardous wastes which



are subject to regulation under RCRA and the CHWA.

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     2.   Rockwell is a corporation organized under the laws of



the State of Delaware and doing business in the State of



Colorado, and is a "person" as defined in section 1004(15) of



RCRA, 42 U.S.C. § 6903(15) and in the CHWA, and thus subject to



regulation.



     3.   On or about August 18, 1980, Rockwell (as management



contractor for the United States Department of Energy (DOE) which



owns the Rocky Flats Plant) submitted a Notice of Hazardous Waste



Activity to EPA pursuant to section 3010 of RCRA.  Rockwell and



DOE identified themselves as a generator, treater, storer, and/or



disposer of hazardous waste at the facility.  On or about



November 14, 1980, Rockwell and DOE submitted Part A of a RCRA



permit application to EPA in order to qualify for interim status



pursuant to section 3005 of RCRA.



     4.   Rockwell is an "operator" of a hazardous waste



treatment, storage, and disposal facility as that term is defined



in 40 C.F.R. § 260.10 and 6 CCR 1007-3, section 260.10.  Rockwell



is a "generator" of hazardous waste as that term is defined in 40



C.F.R. § 260.10 and 6 CCR 1007-3, section 260.10.



     5.   Some or all of the wastes generated at the facility are



"hazardous waste" as that term is defined in 40 C.F.R. § 260.10



and 6 CCR 1007-3, section 260.10.



     6.   The Rocky Flats Plant is a "facility" as that term is



defined at 40 C.F.R. § 260.10 and 6 CCR 1007-3, section 260.10.



     7.   Pursuant to section 3006(b) of RCRA, 42 U.S.C.



§ 6926(b), on November 2, 1984, th» Administrator of EPA

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authorized the State of Colorado, through the Department of



Health, to administer and enforce a hazardous waste program in



lieu of the federal program.  Subsequently, the State of Colorado



was authorized to regulate radioactive hazardous waste on



November 7, 1986, and was authorized to administer and enforce



certain portions of HSWA on July 14, 1989.



     8.   Pursuant to section 3006(g) of RCRA, 42 U.S.C.



§ 6926(g), requirements or prohibitions applicable to generation,



transportation, treatment, storage, or disposal of hazardous



wastes which are imposed under authority granted by HSWA take



effect immediately in authorized states and are enforceable by



EPA.  The requirements set out in 40 C.F.R. part 268 (the Land



Disposal Restrictions (LDR) requirements) were imposed pursuant



to the HSWA amendment of sections 3004(d) through (k) and (m) and



are, therefore, enforceable by EPA in the State of Colorado.



     9.   Certain wastes stored by the facility are wastes that



have been restricted from land disposal pursuant to regulations



implementing HSWA.



     10.  Pursuant to 40 C.F.R. § 268.50, it is unlawful to store



hazardous wastes that have been restricted from land disposal



except for the purpose of accumulating quantities necessary to



facilitate proper recovery,  treatment, or disposal of such



wastes.



     11.  At the facility, Rockwell has stored hazardous wastes



restricted from land disposal, and such storage has not been to

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accumulate quantities necessary to facilitate proper recovery,

treatment, or disposal of these wastes.

     12.  Rockwell's storage of hazardous wastes restricted from

land disposal other than for the purpose of accumulating

quantities necessary to facilitate proper recovery, treatment,  or

disposal constitutes a violation of 40 C.F.R. § 268.50.



                        COMPLIANCE ORDER

     Based upon the foregoing allegations of the Complaint, and

pursuant to section 3008 of RCRA, 42 U.S.C. § 6928, it is hereby

ORDERED as follows:

     A.   Storage

          1.    Within thirty (30) days of the effective date of

          this Order, Rockwell shall submit a Storage Report to

          EPA, that contains the following information with

          respect to those radioactive mixed wastes that Rockwell

          knows to be stored at RFP as of the effective date of

          this Order which Rockwell determines to be prohibited

          from land disposal pursuant to the LDR of HSWA:

               a.   an identification and description of the
               mixed waste at RFP.  The  identification and
               description shall include the RCRA hazardous waste
               code, process information necessary for waste
               identification and LDR determinations including,
               where possible, a history of how the waste was
               generated, the source of  the hazardous
               constituents, how the waste was managed prior to
               storage, and a general timeframe determination
               which serves to categorize when the waste was
               placed in storage, radioactivity type (i.e., high
               level waste, low level waste, transuranic waste),
               and physical form of the  waste (e.g., solid,
               liquid,  sludge ) ;

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     b.   the quantity of waste identified and
     described in a. above;

     c.   physical location and method of storage
     (e.g., container, tank, surface impoundment, waste
     pile) of waste identified and described in a.
     above, including a list of areas permitted for
     storage of these wastes;

     d.   Rockwell's assessment of the compliance
     status of the storage methods pursuant to
     applicable State and Federal standards;

     e.   identification of any releases of hazardous
     waste or hazardous constituents into the
     environment from these storage units pursuant to
     the corrective action requirements and the
     technical standards under RCRA and the CHWA
     governing those units in which the wastes are
     stored; and

     f.   identification of prohibited waste generation
     rates (on a monthly basis), an estimate of the
     storage capacity, and when storage capacity will
     be reached, including an identification of the
     bas«>s and assumptions used in making such
     estimate.

2.   Within sixty (60) days of the effective date of

this Order, or within sixty (60) days after materials

and/or wastes are identified as prohibited wastes,

Rockwell shall submit to EPA for approval, an Inventory

Report that identifies all areas at the RFP where

radioactive mixed wastes are stored.  The Inventory

Report shall contain that information known at the time

of issuance of the Report about the types and

quantities of radioactive mixed waste stored in each of

the identified storage locations.   To the extent

possible, the Inventory Report shall contain the

categories of information requested in Item A.I.a.- f.

                        6

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     of this Section.  The Inventory Report shall also



     report and correlate data from the Item Description



     Code System maintained by RFP to the storage areas



     identified in the Report.



     3.   Within ninety (90) days after approval of the



     Inventory Report, Rockwell shall submit to EPA for



     approval, a Land Disposal Restrictions Determination



     Report.  This Report shall provide Rockwell's



     determinations as to whether or not any radioactive



     mixed wastes, not identified in the Storage Report, are



     wastes prohibited from land disposal.   This report



     shall include the bases by which Rockwell made these



     determinations including the categories of information



     requested in Item A.I.a - f. of this Section.



     4.   On or before September of 1990, Rockwell shall



     submit a comprehensive Waste Characterization Report to



     EPA that characterizes all waste stored at RFP and all



     waste streams generated at RFP.  The Waste



     Characterization Report shall include  all information



     necessary to confirm which wastes and  which waste



     streams are subject to the LDR.



B.  Establishment and Utilization of Treatment Capacity



     i.    Within thirty (30) days after approval of the



     Storage Report,  Rockwell shall submit, for those wastes



     covered in the Storage Report, Treatment Report #1 to



     EPA for approval, identifying:

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     a.   treatment anH disposal technologies, and
     treatment capacity, needed to manage these
     prohibited wastes, assuming current waste
     generation rates;

     b.   treatment technologies and extent of capacity
     currently available to manage these -prohibited
     wastes;

     c.   whether any new treatment capacity is
     scheduled to be available to manage these
     prohibited wastes, and an assessment of when such
     new capacity will be available; and

     d.   alternate technologies which are in
     development and which may be used to manage these
     prohibited wastes, and an assessment of when such
     alternate technologies may become available.

     e.   for items B.i.c. and d. above, identification
     of the bases and assumptions utilized in forming
     the response and in making the assessments, and
     any foreseeable contingencies (including permit
     reviews) which may affect the assumptions.

2.   Within sixty (60) days of submittal of the Land

Disposal Restrictions Determination Report, Rockwell

shall submit to EPA for approval, Treatment Report #2,

for those radioactive mixed wastes not identified in

the Storage Report and determined to be prohibited

waste covered by this Order, containing the information

identified in B.I.a - e..  Should EPA disagree with the

inclusiveness or exclusiveness of Treatment Report *2

relative to the radioactive mixed wastes covered in

Treatment Report t2, EPA may require an amendment to

Treatment Report #2 to include or exclude the

radioactive mixed waste which is the subject of the

disagreement.  This amendment is to be submitted to EPA

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for approval, within thirty (30) days of the request by



EPA.



3.   Within ninety (90) days after submittal of any



Treatment Report or Treatment Report Amendment,



Rockwell shall submit to EPA for approval, a Treatment



Plan for the prohibited wastes identified in such



Treatment Report.  The purpose of the Treatment Plan is



to establish, for each prohibited waste covered by this



order,  milestones and schedules for the development and



implementation of treatment technologies that will



result in all prohibited wastes covered by this Order



being treated to the applicable treatment standard or



otherwise managed in accordance with LDR requirements.



Such schedules and milestones may vary depending on the



type of waste and the technical, legal and



administrative requirements for establishing compliance



with LDR requirements.  The schedule for treatment or



management of a particular prohibited waste could, for



example, range from a short period of time allowing for



final permitting of an established, existing technology



to a timeframe for prohibited wastes where there are



currently no known treatment technologies.  The



Treatment Plan, therefore, shall include all applicable



milestones and associated schedule for the development



and implementation of treatment or management



technologies to achieve compliance with LDR                 M

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     requirements for each prohibited waste including, as



     appropriate, such items as:  waste characterization



     data, treatability testing and reporting, feasibility



     analyses and reports, bench scale and pilot testing and



     reports, research, development and demonstration



     projects and reports, design reports, permitting



     milestones, and treatment milestones.



C.   Accelerated Treatment



     Rockwell may treat LDR waste covered by this Order in



     accordance with applicable law in advance of approval



     of the Treatment Report and Treatment Plan.  Rockwell



     shall notify EPA of such accelerated treatment.



D.   Waste Minimization



     1.   Within ninety (90) days of the effective date of



     this Order, Rockwell shall submit a Waste Minimization



     Report to EPA for approval, which, at a minimum,



     identifies methods for minimizing the generation of



     wastes that are the subject of this Order.  This Waste



     Minimization Report shall address, but not be limited



     to, process changes that can be made to reduce or



     eliminate waste, methods to minimize the volume of



     regulated and restricted wastes through segregation and



     avoidance of commingling, and substitution of less



     toxic materials for materials currently utilized at



     RFP.  This Waste Minimization Report shall include a



     schedule for implementation of waste minimization






                            10

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          procedures set forth in the Report, and projections for



          the reduction of newly generated waste.  The



          projections for reduction shall set forth the bases for



          the development of the projections, including any



          assumptions utilized in developing the projections.



          2.   Upon approval of the Waste Minimization Report,



          Rockwell shall revise and submit that portion of the



          Storage Report associated with Item A.l.f. above, to



          conform with the generation projections contained in



          the Waste Minimization Report.



          3.  Within ninety (90) days of approval of the



          Inventory Report, Rockwell shall submit an amendment to



          the Waste Minimization Report to EPA for approval,



          containing the information required in D.I of this



          section for those wastes covered in the Inventory



          Report.



          4.  Upon approval of the amendment to the Waste



          Minimization Report, Rockwell shall revise and submit



          that portion of the Inventory Report associated with



          Item A.l.f above, to conform with generation



          projections contained in the amendment to the Waste



          Minimization Report.








                     PROPOSED CIVIL PENALTY



     Section 3008(a)(3) of RCRA,  42 U.S.C. § 6928(a)(3),



authorizes the assessment of a civil penalty of up to $25,000 per





                                 1 1

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day of violation for each violation.  Based upon the facts



alleged in this complaint and taking into account the factors



prescribed by statute, namely the seriousness of violations and



any good faith efforts by Respondent to comply with the



applicable requirements, EPA does not at this time propose to



assess a civil penalty.  EPA may propose a penalty for these



violations in the future.








          NOTICE OF LIABILITY FOR ADDITIONAL PENALTIES



     Pursuant to section 3008(c) of RCRA, 42 U.S.C. § 6928(c), a



Respondent which fails to take corrective action within the time



specified in a compliance order is liable for an additional civil



penalty of up to $25/000 for each day of continued noncompliance.



Such continued noncompliance may also result in the institution



of a civil or criminal judicial action.








                OPPORTUNITY TO REQUEST A HEARING



     As provided in section 3008(b) of RCRA, 42 U.S.C. § 6928(b),



you have the right to request a public hearing within thirty (30)



days after this Complaint is served.  If you (1) wish to contest



the factual claims made in this Complaint;  (2) wish to contest



the appropriateness of the proposed penalty; and/or feel that you



are entitled to judgment as a matter of  law, you must file a



written Answer in accordance with 40 CFR §§ 22.15 and 22.37



within thirty (30)  days after this Complaint is served.   (If this



Complaint  is served by mail, you have an additional five (5)

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days; 40 CFR § 22.07(c)).  Your Answer must (l) clearly and



directly admit, deny, or explain each of the factual allegations



contained in the Complaint; (2) briefly state all facts and



circumstances, if any, which constitute grounds for a defense;



and (3) specifically request an Administrative hearing, if



desired.  The denial of any material fact shall be construed as a



request for a hearing.  Failure to deny any of the factual



allegations in this Complaint will constitute an admission of the



undenied allegations.  The Answer should be sent to the EPA



Region VIII Hearing Clerk, 999 - 18th Street, Suite 500,  Denver,



Colorado 80202-2405.








     IF YOU FAIL TO REQUEST A HEARING, YOU WILL WAIVE YOUR



     RIGHT TO CONTEST FORMALLY ANY OF THE ALLEGATIONS SET



     FORTH IN THE COMPLAINT.








     IF YOU FAIL TO FILE A WRITTEN ANSWER WITHIN THE THIRTY



     (30) DAY TIME LIMIT, A DEFAULT JUDGMENT MAY BE ENTERED



     PURSUANT TO 40 CFR § 22.17.  THIS JUDGMENT WILL IMPOSE



     THE UNADJUSTED PENALTY PROPOSED IN THE COMPLAINT.
                                 13

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     Any questions that you may have regarding this Complaint

should be directed to:

          Lorraine M, Ross
          Office of Regional Counsel
          EPA Region VIII
          999 - 18th Street, Suite 500
          Denver, Colorado 80202-2405
          Telephone number: (303) 294-7584
                                UNITED STATES ENVIRONMENTAL
                                PROTECTION AGENCY, REGION VIII
                                Complainant.
Date: /7    	
           ~7?                       Robert L.
                                   Hazardous Waste Management
                                   Division
    :  10
Date: LV  ^&tefc*J^  nin        By:
                                   Lorraine M. Ross, Attorney
                                   Office of Regional Counsel
                                 1 4

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                     CERTIFICATE OF SERVICE

     The undersigned hereby certifies that the original and one

copy of the attached COMPLAINT,  COMPLIANCE ORDER AND NOTICE OF

OPPORTUNITY FOR HEARING were hand-carried to the Regional Hearing

Clerk,  EPA Region VIII, 999 - 18th Street, Denver, Colorado

80202-2405, and that a true copy was sent via first class mail,

certified, return receipt requested, to:
                                                                     i
          The Corporation Company
          Registered Agent for Service for
            Rockwell International Corporation
          1600 Broadway
          Denver,  Colorado 80202
Date            7               Name

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Deliverables for Rocky Flats FFCA

1.   Storage Report

Identifies mixed wastes prohibited from land disposal and known
to be stored at RFP.  Includes quantity, location and method of
storage.

2.   Inventory Report

Identifies all radioactive mixed wastes which may be prohibited
from land disposal which are stored at RFP.  Includes quantity,
location and method of storage.

3.   Land Disposal Determination Report

Determines whether radioactive mixed wastes identified in the
Inventory Report are subject to the land disposal restrictions.

4.   Comprehensive Waste Characterization Report

Characterizes all wastes subject to applicable hazardous waste
regulations.

5.   Treatment Reports

Assesses current technologies available for treatment of
restricted wastes.

6.   Treatment Plan

Establishes schedules for treatment of restricted wastes.

7.   Waste Minimization Report

Establishes a plan for waste minimization at RFP.

8.   National Report On Prohibited Waste and Treatment Options

Identifies all DOE defense complex facilities and associated
wastes with land disposal restriction issues similar to RFP.

9.   One Year Report

Provides assessment of all steps taken by DOE to address the land
disposal restriction issues covered by the Agreement.

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                      ROCKY FLATS FFCA SUMMARY

     On September 15, 1989,  EPA's Region VIII  and  the  State  of
Colorado signed a RCRA Compliance Agreement addressing RCRA  land
disposal issues at the Rocky Flats Plant (RFP)  in  Golden,  Colorado.
The Agreement was the product of negotiations  between  EPA, Colorado
and the DOE which occurred during the week of  September llth.
Following signature by EPA and Colorado, the Agreement was carried
by DOE back to DOE headquarters for review and for the final
decision regarding whether DOE would sign the  Agreement.   On
September 19, 1989, DOE headquarters and DOE - Rocky Flats Office
signed the Agreement, making the Agreement fully effective.

     The Agreement was negotiated because DOE  is storing wastes at
Rocky Flats Plant which are prohibited from land disposal.  The
storage of these wastes constitutes a technical violation of the
land disposal restrictions of RCRA.  A summary of the  storage
problem is as follows:

1.   The land disposal restrictions of RCRA prohibit the land
     disposal of certain wastes unless pre-treated using specified
     technology or to specified treatment standards.

2.   For certain prohibited wastes at RFP, there is no existing*
     treatment technology or operational treatment system.

3.   RFP's storage of prohibited waste for which there is no
     treatment technology or operational treatment system, even if
     stored in full compliance with RCRA's technical standards
     covering storage of hazardous waste, constitutes a violation
     of the land disposal restrictions of RCRA.

     The purpose of the negotiated Agreement is to have DOE address
the storage violation by getting treatment technologies developed
and operational.  This Agreement is a positive step toward solving
this problem at RFP and at other DOE facilities in the weapons
complex.  The Agreement requires DOE to:

1.   Conduct a complete waste characterization to identify wastes
     and waste streams subject to the land disposal restrictions.

2.   Develop and implement a plan  for minimizing  the  generation of
     restricted radioactive mixed waste.

3.   Identify current technologies and  assess technologies  to  be
     developed for treating DOE's  restricted  radioactive  mixed
     wastes.

4.   Develop and implement a plan, pursuant to  approved schedules,
     for the treatment of all radioactive  mixed waste subject  to
     the land disposal restrictions.
i
 I

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                               - 2 -

     Closure of the RFP by DOE would not solve the land ban
violations for wastes already generated and currently in storage at
RFP.   Because no treatment capacity for the waste in question is
known to be available, the continued storage of restricted waste at
RFP would remain a land ban violation regardless of whether the
Plant remains open or is closed.

     The fact that DOE brought the land disposal storage issue to
EPA's attention reflects the seriousness with which DOE views the
regulatory requirements and sanctions of RCRA.

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 IN THE MATTER OF:               )
                                )
 ROCKY FLATS PLANT               )
 Golden, Colorado                )
                                )            FEDERAL FACILITY
 DEPARTMENT OF ENERGY            )        COMPLIANCE AGREEMENT
         Respondent             )        AND COMPLIANCE ORDER
                                )                  ON CONSENT
                                )
                                )            Docket No. :RCRA
	)           (3008) VIII-89-25
                          I.  PARTIES

     The parties to this Federal Facilities Compliance

Agreement and Compliance Order on Consent ("FFCA" or

"Agreement") are the United States Environmental Protection

Agency ("EPA"), Region VIII, the State of Colorado ("State"),

and the United States Department of Energy ("DOE").



                      II.  INTRODUCTION

     A.   This Agreement is entered into by the parties to

provide a one year period for DOE to achieve compliance with

the land disposal restrictions ("LDR") of the Hazardous and

Solid Waste Amendments of 1984 ("HSWA"), regulations found at

40 CFR Part 268, and applicable State law, at the Rocky Flats

Plant ("RFP") located in Golden, Colorado.

     B.   During this one year period DOE shall take all

feasible steps to address and resolve alleged LDR violations at

RFP that are covered by this Agreement.  During this one year

period DOE agrees to take,  at a minimum, the actions set forth

herein to ensure the accurate identification, safe storage and

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                                  2



minimization of restricted wastes prohibited from land disposal



pursuant to the LDR of HSWA which are covered by this Agreement



prior to the ultimate treatment or disposal of such wastes.



     C.   Pursuant to this Agreement, at the end of this one



year period DOE shall have completed the requirements specified



herein, including those activities set forth in the Compliance



Requirements Section of this Agreement.  At the end of this one



year period DOE shall have either achieved compliance with the



LDR, or reported and certified, as set forth herein, that all



feasible alternatives for achieving compliance with the LDR



have been fully explored and exhausted.



     D.   EPA and the State have determined that this



Agreement, and the requirements contained herein, constitutes a



"plan" as described in Section 1-601 of Executive Order 12088



to address alleged violations at RFP of the LDR of HSWA, and



regulations found at 40 CFR Part 268.








                      III.  JURISDICTION



     A.   This Agreement is entered into pursuant to the Solid



Waste Disposal Act, as amended by the Resource Conservation and



Recovery Act,  as further amended by the Hazardous and Solid



Waste Amendments of 1984 (hereinafter referred to as "RCRA"),



42 U.S.C.  6901  et seq.,  and Federal regulations promulgated



pursuant to RCRA.



     B.   This Agreement is entered into pursuant to the



Colorado Hazardous Waste Act ("CHWA"),  Sections 25-15-101  et

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                                  3



seq., C.R.S. (1982), as amended, and State regulations



promulgated pursuant to CHWA.







                     IV.  COVERED MATTERS



     A.   Except as specifically set forth elsewhere in this



Agreement, this Agreement shall only apply to the LDR



requirements pertaining to past and on-going generation,



storage, and treatment or disposal of radioactive mixed wastes



at the Rocky Flats Plant which contain hazardous wastes that



are prohibited from storage and land disposal pursuant to the



LDR of HSWA as of the effective date of this Agreement



(hereinafter referred to as "prohibited waste").



     B.   The parties acknowledge that this Agreement does not



address corrective or remedial action pursuant to RCRA, HSWA,



CHWA,  or CERCLA.  Corrective or remedial action issues shall be



addressed by the hazardous waste permit to be issued by the



State and EPA,  orders issued pursuant to Section 3008(h) of



RCRA,  an agreement, order or legal action under CERCLA, or



combination of the foregoing.



     C.   This Agreement does not address RCRA compliance



issues other than those LDR compliance issues specifically



addressed herein.  Therefore, the parties acknowledge that this



Agreement does not affect the rights of the State and, where



appropriate, EPA to address any RCRA violations which exist or



may exist at RFP, which are not specifically covered by this

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                                  4



Agreement, pursuant to their respective State and Federal



authorities.







         V.  STATEMENT OF FACTS AND CONCLUSIONS OF LAW



     The following constitutes a statement of facts and the



conclusions of law which EPA and the State considered to be the



basis for this Agreement.  Nothing in this Agreement shall be



considered an admission by any party with respect to any



unrelated claims by a party or with respect to any claims or



actions by persons not a party to this Agreement, except in an



action to enforce the terms of this Agreement.



     A.   The RFP is located in northern Jefferson County,



Colorado, approximately 16 miles northwest of Denver.



     B.   The RFP was established by the United States Atomic



Energy Commission in 1951 and began operations in 1952.  The



facility has been and continues to be used for the production



of components for nuclear weapons in accordance with DOE'S



authority and responsibility under the Atomic Energy Act.



     C.   The RFP is a government-owned, contractor-operated



facility.



     D.   The RFP is owned by the United States and is part of



the DOE nuclear weapons complex.



     E.   DOE is an agency of the Federal government and is



subject to regulation of its hazardous waste management



activities pursuant to Section 6001  of RCRA,  42 U.S.C. 6961.

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                                  5



     F.   Rockwell International Corporation has been the



management and operations contractor for RFP since 1975.



     G.   On or about August 18, 1980, DOE and Rockwell



submitted a Notice of Hazardous Waste Activity to EPA pursuant



to Section 3010 of RCRA.  DOE and Rockwell identified



themselves as engaged in generation, treatment, storage, and/or



disposal of hazardous waste at the facility.  On or about



November 14, 1980, DOE and Rockwell submitted a RCRA Part A



permit application to EPA in order to qualify for RCRA interim



status.



     H.   DOE is the "owner" of RFP, a hazardous waste



treatment, storage and disposal facility as those terms are



defined in 40 CFR Part 260.10 and 6 CCR 1007-3, Section 260.10.



     I.   DOE is a "generator" of hazardous waste at RFP as



that term is defined in 40 CFR Part 260.10 and 6 CCR 1007-3,



Section 260.10.



     J.   The RFP is a "facility" as that term is defined at 40



CFR Part 260.10 and 6 CCR 1007-3, Section 260.10.



     K.   Pursuant to Section 3006(b) of RCRA, 42 U.S.C.



6926(b), on November 2, 1984, the Administrator of EPA



authorized the State of Colorado to administer and enforce the



State hazardous waste program in lieu of the Federal program.



The State was authorized to regulate radioactive mixed waste on



November 7,  1986,  and was further authorized to administer and



enforce certain portions of the HSWA amendments on July 14,

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                                  6



 1989.  As of the effective date of this Agreement, the State



 has not been authorized to administer the LDR portion of HSWA.



     L.   Pursuant to Section 3006(g) of RCRA, requirements or



 prohibitions applicable to the generation, transportation,



 treatment, storage or disposal of hazardous waste imposed by or



 through HSWA take effect immediately in authorized states and



 are enforceable by EPA.  The requirements set out in 40 CFR



 Part 268 were imposed pursuant to HSWA amendment of Sections



 3004(d) through (k) and 3004(m), and are therefore enforceable



 by EPA and the State.



     M.   LDR regulations were first promulgated by EPA on



 November 7, 1986, for listed solvents and dioxins (51 FR



 40572).  On July 8, 1987, EPA promulgated regulations for



 California List, wastes (52 FR 25760).  Radioactive waste mixed



 with prohibited solvents and dioxins or California list waste



 is also prohibited from land disposal pursuant to the solvent,



 dioxin and California list land disposal prohibitions.



     N.   The LDR prohibit the land disposal of hazardous



 wastes (other than those wastes which qualify for an exemption



 from the restrictions pursuant to 40 CFR Part 268) which have



 not been pretreated with specified technologies or to treatment



 standards determined by EPA to be protective of human health



and the environment.



     0.   Certain hazardous wastes which have been prohibited



from land disposal pursuant to HSWA are currently generated and



stored at RFP.

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                                  7



     P.   Pursuant to 40 CFR Part 268.50, it is unlawful to



store hazardous wastes that have been restricted from land



disposal except for the purpose of accumulating quantities



necessary to facilitate proper recovery, treatment,  or disposal



of such wastes.



     Q.   DOE brought to EPA's attention that it is  currently



storing radioactive mixed wastes containing hazardous wastes



restricted from land disposal, and such storage has  not been



for the purpose of accumulating quantities necessary to



facilitate proper recovery, treatment, or disposal of such



wastes.  Therefore, the storage of radioactive mixed waste



containing hazardous waste restricted from land disposal



constitutes a violation of applicable hazardous waste law and



regulations, including RCRA regulations found at 40  CFR Part



268.50.



     R.   All parties recognize their continuing obligation to



obey all other applicable Federal and State law, including the



Atomic Energy Act, the National Environmental Policy Act and



Executive Order 12088.







                 VI.  COMPLIANCE REQUIREMENTS



     A.   Storage



          1.   Within thirty (30) days of the effective date of



          this Agreement, DOE shall submit a Storage Report to



          EPA and the State for approval by the Lead Regulatory



          Agency, that contains the following information with

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                        8

respect to those mixed wastes that DOE knows to be

stored at RFP as of the effective date of this

Agreement which DOE determines to be prohibited from

land disposal pursuant to the LDR of HSWA:

     a.   an identification and description of the
     mixed waste at RFP.  The identification and
     description shall include the RCRA hazardous
     waste code, process information necessary for
     waste identification and LDR determinations
     including, where possible, a history of how the
     waste was generated, the source of the hazardous
     constituents,  how the waste was managed prior to
     storage, and a general timeframe determination
     which serves to categorize when the waste was
     placed in storage, radioactivity type (i.e.,
     high level waste, low level waste, transuranic
     waste), and physical form of the waste (e.g.,
     solid, liquid, sludge);

     b.   the quantity of waste identified and
     described in a. above;

     c.   physical  location and method of storage
     (e.g., container, tank, surface impoundment,
     waste pile) of waste identified and described in
     a. above, including a list of areas permitted
     for storage of these wastes;

     d.   DOE's assessment of the compliance status
     of the storage methods pursuant to applicable
     State and Federal standards;

     e.   identification of any releases of hazardous
     waste or hazardous constituents into the
     environment from these storage units pursuant t=
     the corrective action requirements and the
     technical standards under the CHWA governing
     those units in which the wastes are stored; and

     f.   identification of prohibited waste
     generation rates (on a monthly basis), an
     estimate of the  storage capacity, and when
     storage capacity will be reached,  including an
     identification of the bases and assumptions used
     in making such estimate.

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                        9



2.   Following review and approval of the Storage



Report by the Lead Regulatory Agency, the Lead



Regulatory Agency may require DOE to submit a request



for a case-by-case extension of the LDR effective



date pursuant to Section 3004(h) of RCRA for those



wastes identified in the Storage Report.



3.   Within sixty (60) days of the effective date of



this Agreement, or within sixty (60) days after



materials and/or wastes are identified as prohibited



wastes, DOE shall submit to EPA and the State for



approval by the Lead Regulatory Agency, an Inventory



Report that identifies all areas at the RFP where



radioactive mixed wastes are stored.  The Inventory



Report shall contain that information known at the



time of issuance of the Report about the types and



quantities of radioactive mixed waste stored in each



of the identified storage locations.  To the extent



possible, the Inventory Report shall contain the



categories of information requested in Item A.l.a.-



f. of this Section.  The Inventory Report shall also



report and correlate data from the Item Description



Code System maintained by RFP to the storage areas



identified in the Report.



4.   Within ninety (90) days after approval of the



Inventory Report, DOE shall submit to EPA and the



State for approval by the Lead Regulatory Agency, a

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                     10
Land Disposal Restrictions Determination Report.
This report shall provide DOE's determinations as to
whether or not all radioactive mixed wastes, not
identified in the Storage Report, are prohibited
wastes covered by this agreement.  This report shall
include the bases by which DOE made these
determinations including the categories of
information requested in Item A.I.a - f. of this
Section.
5.  Following review and approval of the Land
Disposal Restrictions Determination Report by the
Lead Regulatory Agency, the Lead Regulatory Agency
may require DOE to submit a request for a case-by-
case extension of the LDR effective date pursuant to
Section 3004(h) of RCRA for those wastes identified
in the Land Disposal Restriction Determination
Report.
6.   On or before September of 1990, DOE shall submit
a comprehensive Waste Characterization Report to EPA
and the State that characterizes all waste stored at
RFP and all waste streams generated at RFP.  This
Report does not require Lead Regulatory Agency
approval pursuant to this Agreement.  The Waste
Characterization Report shall include all information

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                            11

     necessary to confirm which wastes and which waste

     streams are subject to the LDR.

B.  Establishment and Utilization of  Treatment  Capacity

     1.    Within thirty (30)  days after approval of the

     Storage Report,  DOE shall submit, for those wastes

     covered in the Storage Report, Treatment Report II to

     EPA and the State for approval by the Lead Regulatory

     Agency, identifying:

          a.   treatment and disposal technologies,  and
          treatment capacity,  needed  to manage  these
          prohibited  wastes, assuming current waste
          generation  rates;

          b.   commercial treatment technologies and
          extent of capacity currently available to  manage
          these prohibited wastes;

          c.   DOE treatment technologies and extent of
          capacity currently available to manage these
          prohibited  wastes;

          d.   whether any new commercial or DOE treatment
          capacity is scheduled to be available to manage
          these prohibited wastes, and an assessment of
          when such new capacity will be available;  and

          e.   alternate technologies which are in
          development and which may be used to  manage
          these prohibited wastes, and an assessment of
          when such alternate  technologies may  become
          available.

          f.   for items B.l.d. and e. above,
          identification of the bases and assumptions
          utilized in forming  the response and  in making
          the assessments, and any foreseeable
          contingencies (including permit reviews) which
          may affect  the assumptions.

     2.   Within sixty (60) days of submittal of the Land

     Disposal Restrictions Determination Report, DOE shall       M

     submit to EPA and the State for  approval by the Lead

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                       12



Regulatory Agency Treatment Report 12, for those



radioactive mixed wastes not identified in the



Storage Report and determined to be prohibited waste



and covered by this agreement, containing the



information identified in B.I.a - f..  Should the



Lead Agency disagree with the inclusiveness or



exclusiveness of Treatment Report 12 relative to the



radioactive mixed wastes covered in Treatment Report



12, the Lead Agency may require an amendment to



Treatment Report <2 to include or exclude the



radioactive mixed waste which is the subject of the



disagreement.  This amendment is subject to Dispute



Resolution.  This amendment is to be submitted to EPA



and the State for approval by the Lead Regulatory



Agency, within thirty (30) days of the request of the



Lead Agency or thirty (30) days after resolution of



the dispute, if appropriate.  The timeframe for



submittal of the amendment to Treatment Report 12 in



no way affects the timeframes associated with the



portions of the Treatment Report not subject to



disagreement or dispute.



3.   Within ninety (90) days after submittal of any



Treatment Report or Treatment Report Amendment, DOE



shall submit to EPA and the State for approval by the



Lead Regulatory Agency, a Treatment Plan for the



prohibited wastes identified in such Treatment

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                       13



Report.  The purpose of the Treatment Plan is to



establish, for each prohibited waste covered by this



agreement, milestones and schedules for the



development and implementation of treatment



technologies that will result in all prohibited



wastes covered by this Agreement being treated to the



applicable treatment standard or otherwise managed in



accordance with LDR requirements.  Such schedules and



milestones may vary depending on the type of waste



and the technical, legal and administrative



requirements for establishing compliance with LDR



requirements.  The schedule for treatment or



management of a particular prohibited waste could,



for example, range from a short period of time



allowing for final permitting of an established,



existing technology to a timeframe for prohibited



wastes where there are currently no known treatment



technologies.  The Treatment Plan, therefore, shall



include all applicable milestones and associated



schedule for the development and implementation of



treatment or management technologies to achieve



compliance with LDR requirements for each prohibited



waste including, as appropriate, such items as:



waste characterization data, treatability testing and



reporting, feasibility analyses and reports, bench



scale and pilot testing and reports, research,

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                       14



development and demonstration projects and reports,



design reports, permitting milestones, and treatment



milestones.



Accelerated Treatment



DOE may treat LDR waste covered by this Agreement in



accordance with applicable law in advance of approval



of the Treatment Report and Treatment Plan.  DOE



shall notify the parties of such accelerated



treatment.  Such accelerated treatment shall be



subject to Dispute Resolution.



Waste Minimization



1.   Within ninety (90) days of the effective date of



this Agreement, DOE shall submit a Waste Minimization



Report to EPA and the State for approval by the Lead



Regulatory Agency, which, at a minimum, identifies



methods for minimizing the generation of wastes that



are the subject of this Agreement.  This Waste



Minimization Report shall address, but not be limited



to, process changes that can be made to reduce or



eliminate waste, methods to minimize the volume of



regulated and restricted wastes through segregation



and avoidance of commingling, and substitution of



less toxic materials for materials currently utilized



at RFP.  This Waste Minimization Report shall include



a schedule for implementation of waste minimization



procedures set forth in the Report, and projections

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                           15
     for the reduction of newly generated waste.   The
     projections for reduction shall  set forth  the bases
     for the development of the projections,  including  any
     assumptions utilized in developing the projections.
     2.   Upon Lead Regulatory Agency  approval of  the
     Waste Minimization Report, DOE shall revise  and
     submit that portion of the Storage Report  associated
     with Item A.l.f.  above, to conform with  the
     generation projections contained in the  Waste
     Minimization Report.
     3.   Within ninety (90) days of approval  of the
     Inventory Report, DOE shall submit an  amendment to
     the Waste Minimization Report to EPA and the State
     for approval by the Lead Regulatory Agency containing
     the information required in Item D.I of  this Section
     for those wastes covered in the  Inventory  Report.
     4.   Upon Lead Regulatory Agency  approval of  the
     amendment to the Waste Minimization Report,  DOE shall
     revise and submit that portion of the  Inventory
     Report associated with Item A.l.f above, to  conform
     with generation projections contained  in the
     amendment to the Waste Minimization Report.
E.   National Report On Prohibited Waste  and  Treatment
     Options
     1.    Within one hundred twenty (120)  days  of the
     effective date of this Agreement, DOE  Headquarters

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                       16

shall submit to EPA's Assistant Administrator for

Solid Waste and Emergency Response, a National Report

on Prohibited Wastes and Treatment Options

containing, at a minimum, the following information:

     a.  an identification of each DOE facility
     storing mixed waste subject to the LDR as of the
     effective date of this Agreement; and

     b.  for each facility identified in the Report,
     the information required by paragraphs A.1 and
     B.I of this Section.

     c.  DOE's assessment of whether a national
     treatment priority scheme is necessary and, if
     so, the elements of DOE's proposed treatment
     priority scheme.  DOE's position shall include a
     statement of the bases and assumptions utilized
     in making the assessment, and any foreseeable
     contingencies which may affect the assumptions.

2.   In the event of a dispute regarding the National

Report on Prohibited Waste and Treatment Options, the

following dispute resolution process shall be

utilized in lieu of the process set forth in the

Resolution of Disputes Where EPA Is The Lead

Regulatory Agency Section of this Agreement.

     a.   Any dispute regarding the National Report
     shall be resolved by the Assistant Administrator
     for the Office of Solid Waste and Emergency
     Response and an appropriate Assistant Secretary
     for DOE.  If resolution of the dispute cannot be
     attained, the Assistant Administrator shall
     issue a final written position with respect to
     the dispute.

     b.   It is the intention of the parties that the
     Assistant Administrator's final written position
     with respect to the dispute shall resolve the
     dispute.  However,  DOE may, within seven (7)
     days of receipt of  the Assistant Administrator's
     final written position with respect to the
     dispute, submit a written request to the

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                      17

     Administrator of EPA requesting that the
     Administrator resolve the dispute.

     c.   If DOE does not request that the remaining
     dispute be reviewed by the Administrator within
     this seven (7) day elevation period, the parties
     shall be deemed to have agreed with the
     Assistant Administrator's final written position
     with respect to the dispute.

     d.   Upon elevation, the Administrator will
     review and resolve the dispute as expeditiously
     as possible.  The Administrator win provide the
     parties with a final written position resolving
     the dispute.

3.   The requirement for submittal of the National

Report to EPA Headquarters pursuant to the deadline

contained in Item E.l shall not be subject to the

Additional Sanctions Section of this Agreement.

One Year Report

1.   Within three hundred and thirty  (330) days of

the effective date of this Agreement DOE shall submit

a One Year Report to EPA and the State for approval

by the Lead Regulatory Agency.  The One Year Report

shall either:

     a.  describe the methods by which DOE has
     achieved compliance with the LDR (i.e., methods
     by which RFP has adequately addressed all
     alleged LDR violations which gave rise to this
     Agreement); or,

     b.  in the event that DOE has not achieved
     compliance with the LDR  (i.e., RFP has not
     adequately addressed all alleged LDR violations
     which gave rise to this Agreement), DOE  shall
     provide a description of all possible statutory,
     regulatory or other alternatives which are or
     were available to DOE since the effective date
     of this Agreement to resolve the alleged LDR
     violations giving rise to this Agreement.
     (These alternatives to be explored shall not be

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                                    18
                    limited to the minimum requirements set forth
                    in this Agreement to be completed within the
                    one year term of this Agreement).  For each of
                    these options, the One Year Report shall
                    provide a detailed description of how each
                    alternative has been fully explored and
                    exhausted.

                    DOE's completion of the One Year Report
                    pursuant to this Item F.l.b. shall not equate
                    to compliance with the LDR requirements of
                    HSWA.
            VII.   LEAD REGULATORY AGENCY DESIGNATION

    A.   For purposes of approval of deliverables submitted

pursuant to this Agreement, and  for resolution of disputes, EPA

has been designated as Lead Regulatory Agency.  EPA is currently

designated as Lead Regulatory Agency pursuant to this Agreement

because Colorado is not authorized, pursuant to

Section 3006 of RCRA, 42 U.S.C.  6926, for the LDR portion of

the HSWA program.

    B.   In the event that the State becomes authorized,

pursuant to Section 3006 of RCRA, for the LDR portion of the

HSWA program while this Agreement is in effect, the parties

agree that as of the date of such authorization the designation

of Lead Regulatory Agency (for purposes of approval of

deliverables as well as resolution of disputes) shall

automatically transfer to the State in accordance with the

change in authorization.  Upon authorization of the State, this

Agreement shall become enforceable by the State as a Compliance

Order on Consent.  EPA shall remain the Lead Regulatory Agency

with respect to the National Report on Prohibited Waste and

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                                 19


Treatment Options submitted pursuant to Item E.  of the

Compliance Requirements Section of this Agreement.



     VIII.  SUBMITTAL. REVIEW AND APPROVAL OF DELIVERABLES

    A.   Unless otherwise noted, all deliverables developed by

DOE pursuant to this Agreement shall be submitted by DOE -to

both EPA and the State.  DOE shall complete and transmit each

deliverable required by this Agreement pursuant to the deadline

established pursuant to this Agreement for completion of each

such deliverable.  All deadlines set forth herein, including

those established pursuant to paragraph D. of this Section, and

those set forth in any deliverables approved pursuant to this

Agreement, constitute enforceable requirements of this

Agreement.

    B.   Unless otherwise noted, each deliverable shall be

transmitted directly to the project managers responsible for

implementation of this Agreement.

    The address for EPA's project manager is:

         U.S. EPA, Region VIII
         Mail Code: 8 HWM-RI
         999 18th Street, Suite 500
         Denver, Colorado  80202-2405

    The address for the State's project manager is:

         Colorado Department of Health
         Hazardous Materials & Solid Waste Mgmt. Div.
         4210 East llth Avenue
         Denver, Colorado  80220

    C.   EPA and the State will review each deliverable

submitted by DOE pursuant to this Agreement.  In the course of

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                                 20



their review EPA and the State will consult with one another,



and where appropriate, with DOE regarding the adequacy of each



deliverable.



     D.   Upon completion of review of a deliverable, and any



appropriate consultation, the Lead Regulatory Agency may either



approve the deliverable as submitted or return the deliverable



to DOE with comments.  In the event that the Lead Regulatory



Agency returns the deliverable to DOE with comments, the Lead



Regulatory Agency shall require re-submittal of the deliverable



to the Lead Regulatory Agency pursuant to a deadline



established by the Lead Regulatory Agency for revision and re-



submittal.  The deadline established by the Lead Regulatory



Agency for revision and re-submittal shall provide DOE with a



reasonable time period to revise and resubmit the deliverable



in light of the nature and extent of the Lead Regulatory



Agency's comments.



     E.   Unless otherwise set forth herein, all deliverables



must be approved by the Lead Regulatory Agency to satisfy the



requirements of this Agreement.



     F.   Upon approval of a deliverable by the Lead Regulatory



Agency, any requirements or obligations set forth in the



deliverable shall be considered requirements of this Agreement.



Therefore, upon approval of a deliverable by the Lead



Regulatory Agency, DOE shall implement the deliverable as



approved.

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                                 21

     G.   In the event that DOE disputes the Lead Regulatory

Agency's determination with respect  to approval of a

deliverable, DOE may submit the dispute for resolution pursuant

to the applicable Dispute Resolution Section of this Agreement.


            IX.  RESOLUTION OF DISPUTES WHERE EPA
                   IS LEAD REGULATORY AGENCY

     A.   If a dispute arises under  this Agreement regarding a

matter for which EPA is the Lead Regulatory Agency, including

any dispute associated with work performed, or with a

deliverable submitted and reviewed under this Agreement, the

procedures of this Section shall control.  During the pendency

of any such dispute, DOE agrees that they shall continue to

implement those portions of this Agreement which are not

affected by the dispute and/or which can be reasonably

implemented pending final resolution of the issue(s) in

dispute.  However, if the EPA determines that all or part of

the work affected by the dispute should stop pending resolution

of the dispute, DOE shall discontinue those portions of work.

     B.   The parties shall make reasonable efforts to

informally resolve disputes as expeditiously as possible.

However, if resolution cannot be achieved informally, the

parties shall utilize the formal process for dispute resolution

set forth in this Section to resolve such disputes as

expeditiously as possible.

     C.   Within fourteen (14) days  of a decision or action by

EPA as the Lead Regulatory Agency related to DOE  's

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                                 22



 implementation  of this Agreement with which DOE disagrees, DOE



 may submit a written  statement of dispute setting forth nature



 of the dispute, DOE's position with respect to the dispute, and



 the information DOE is relying upon to support its position.



 Any such  statement of dispute shall outline any impact the



 dispute may have on activities, work, deliverables or deadlines



 required  or established by this Agreement.  If DOE does not



 provide such written  statement to EPA within this fourteen  (14^



 day period, DOE shall be deemed to have agreed with the



 decision  or action taken by EPA which led to or generated the



 potential dispute.



     D.    EPA may issue a written statement of position, as



 necessary, which shall formally establish its position on any



 issue for which it is the Lead Regulatory Agency.  In the event



 that EPA  issues a written statement of position to DOE (other



 than a final written position pursuant to paragraphs E, H or K



 below) with which DOE disagrees, DOE may provide EPA with a



 written statement of dispute in the same manner as set forth in



 paragraph C.



     E.   Upon the issuance of a written statement of dispute,



 the dispute shall be submitted to a .Dispute Resolution



 Committee ("DRC") for resolution.  The DRC shall be comprised



 of the Rocky Flats Office (RFO) Deputy Manager, the EPA Waste



Management Division Director,  and the Colorado Department of



Health Hazardous Materials and Waste Management Division



Director  (or,  where necessary,  their delegates).   The DRC shall

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                                 23



have fourteen (14) days to resolve the dispute.   During this



period, the DRC shall meet as necessary to discuss and attempt



resolution of the dispute.  Any mutually agreed  upon resolution



shall be issued in writing, and signed by all DRC members.   If



resolution cannot be attained within the fourteen (14) day



period, EPA's DRC representative shall issue a final written



position with respect to the dispute.



     F.   Within seven (7) days of receipt of the EPA DRC



representative's final written position with respect to the



dispute, any DRC member may, by written notice,  escalate the



remaining dispute to a Senior Executive Committee (SEC) for



further review.  The SEC shall be comprised of the RFO Manager,



the EPA Regional Administrator and the Assistant Director of



the Office of Health and Environmental Protection of the



Colorado Department of Health.



     G.   If no DRC member elevates the remaining dispute to



the SEC within this seven (7) day elevation period, the parties



shall be deemed to have agreed with the EPA DRC



representative's final written position with respect to the



dispute.



     H.   If any DRC member elects to escalate the dispute to



the SEC as set forth in paragraph F, the SEC shall have



fourteen (14) days to mutually agree upon a resolution of the



dispute.  Any mutually agreed upon resolution shall be issued



in writing, and signed by all SEC members.  If resolution



cannot be attained within the fourteen (14) day  period, the        fl

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                                 24
EPA's SEC representative shall issue a final written position
with respect to the dispute.
     I.   It is the intention of the parties that the EPA SEC
representative's final written position with respect to the
dispute shall resolve the dispute.  However, DOE's SEC member
may, within seven (7) days of receipt of the EPA SEC
representative's final written position with respect to the
dispute, submit a written request to the Administrator of EPA
requesting that the Administrator resolve the dispute.
     J.   If DOE's SEC member does not request that the
remaining dispute be reviewed by the Administrator within this
seven (7) day elevation period, the parties shall be deemed to
have agreed with the EPA SEC representative's final written
position with respect to the dispute.
     K.   The Administrator will review and resolve the dispute
as expeditiously as possible.  The Administrator will provide
the parties with a final written position resolving the
dispute.
     L.   The pendency of any dispute under this Section shall
not affect DOE's responsibility for timely performance of the
requirements of this Agreement, except that the time period for
completion of work affected by the good faith exercise of the
dispute resolution process shall be extended for a period of
time not to exceed any actual delay caused by good faith use of
the dispute resolution process.  All requirements of this

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                                 25

Agreement which are not affected by the dispute shall continue

in effect without regard to the ongoing dispute.

     M.   Within fourteen (14) days of resolution of a dispute

pursuant to the procedures specified in this Section, DOE shall

incorporate the final resolution into all plans, deliverables,

and activities associated with this Agreement.

     N.   Resolution of a dispute pursuant to this Section

constitutes a final resolution of any dispute arising under

this Agreement.  The parties shall abide by all terms and

conditions of any final resolution of dispute obtained pursuant

to this Section of this Agreement.



           X.  RESOLUTION OF DISPUTES WHERE COLORADO
                   IS LEAD REGULATORY AGENCY

     A.   If a dispute arises under this Agreement regarding a

matter for which Colorado is the Lead Regulatory Agency,

including any dispute associated with work performed, or with a

deliverable submitted and reviewed under this Agreement, the

procedures of this Section shall control.  During the pendency

of any such dispute, DOE agrees that they shall continue to

implement those portions of this Agreement which are not

affected by the dispute and/or which can be reasonably

implemented pending final resolution of the issue(s) in

dispute.  However, if Colorado determines that all or part of

the work affected by the dispute should stop pending resolution

of the dispute,  DOE shall discontinue those portions of work.

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                                 26
     B.   ""he parties shall make reasonable efforts to
 informally resolve disputes as expeditiously as possible.
 However,  if resolution cannot be achieved informally, DOE and
 the State shall utilize the formal process for dispute
 resolution set forth in this Section to resolve such disputes
 as expeditiously as possible.
     C.   Within fourteen  (14) days of a decision or action by
 Colorado as the Lead Regulatory Agency related to DOE's
 implementation of this Agreement with which DOE disagrees, DOE
 may submit a written statement of dispute setting forth nature
 of the dispute, DOE's position with respect to the dispute, and
 the information DOE is relying upon to support its position.
 Any such statement of dispute shall outline any impact the
 dispute may have on activities, work, deliverables or deadlines
 required or established by this Agreement.  If DOE does not
 provide such written statement to Colorado within this fourteen
 (14) day period, DOE shall be deemed to have agreed with the
 decision or action taken by Colorado which led to or generated
 the potential dispute.
     D.    Colorado may issue a written statement of position,
 as necessary, which shall formally establish its position on
 any issue for which it is the Lead Regulatory Agency.  In the
event that Colorado issues a written statement of position to
DOE (other than a final written position pursuant to paragraph
E below) with which DOE disagrees,  DOE may provide Colorado

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                                 27



with a written statement of dispute in the same manner as set



forth in paragraph C.



     E.   Upon the issuance of a written statement of dispute,



DOE and Colorado shall submit the dispute to a Dispute



Resolution Committee ("DRC") for resolution.  The DRC shall be



comprised of the RFP Plant Manager and the Director of the



Hazardous Materials & Solid Waste Management Division of the



Colorado Department of Health (or, where necessary, their



delegates).  The DRC shall have fourteen (14) days to resolve



the dispute.  During this period, the DRC shall meet as



necessary to discuss and attempt resolution of the dispute.



Any mutually agreed upon resolution shall be issued in writing,



and signed by all DRC members.  If resolution cannot be



attained within the fourteen (14) day period, Colorado's DRC



representative shall issue a final written position with



respect to the dispute.



     F.   Colorado DRC representative's final written position



on a dispute arising under this Section shall constitutes a



final resolution of any dispute arising under this Section of



this Agreement with regard to DOE.  DOE, like any other party



subject to a final Compliance Order issued pursuant to C.R.S.



sections 25-15-308 & 309, shall abide by all terms and



conditions of any final resolution of dispute obtained pursuant



this Section of this Agreement.  DOE may pursue an appeal as



described below in paragraph I.

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                                 28



     G.   The pendency of any dispute under this Section shall



not affect DOE's responsibility for timely performance of the



requirements of this Agreement, except that the time period for



completion of work affected by the good faith exercise of the



dispute resolution process shall be extended for a period of



time not to exceed any actual delay caused by good faith use of



the dispute resolution process.  All requirements of this



Agreement which are not affected by the dispute shall continue



in effect without regard to the ongoing dispute.



     H.   Within fourteen (14) days of resolution of a dispute



pursuant to the procedures specified in this Section, DOE shall



incorporate the final resolution into all plans, deliverables,



and activities associated with this Agreement.



     I.   The decision of the Colorado DRC representative shall



constitute final agency action.  DOE shall have the same rights



to appeal the DRC decision under Colorado law, including



seeking judicial review, as any party subject to a final



Compliance Order.







                      XI.  ENFORCEABILITY



     A.   DOE recognizes its obligation to comply with RCRA as



set forth in Section 6001 of RCRA.



     B.   The provisions of this Agreement shall constitute



requirements which are enforceable against DOE pursuant to the



citizen suit provision of Section 7002 of RCRA, 42 U.S.C. 6972,



DOE agrees that the State constitutes a "person" pursuant to

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                                 29



Section 7002(a) of RCRA.  Therefore, citizen suits include



actions or suits by the State to enforce the terms of this



Agreement.



     C.   In the event that the State becomes authorized,



pursuant to Section 3006 of RCRA, for the LDR portion of the



HSWA program while this Agreement is in effect, thereby



becoming the Lead Regulatory Agency for portions of this



Agreement, the State shall enforce those portions of the



Agreement for which it is the Lead Regulatory Agency as it



would enforce any compliance order issued pursuant to the CHWA.



Upon authorization, DOE will not contest the State's



jurisdiction or authority to enforce this Compliance Order on



Consent.








                  XII.  DELAY IN PERFORMANCE



     A.   DOE agrees to implement this Agreement in accordance



with the deadlines set forth in this Agreement, the deadlines



to be developed pursuant to this Agreement, and the deadlines



contained in deliverables approved pursuant to this Agreement.



DOE further agrees to adopt all reasonable measures to avoid or



minimize any delays in the implementation of this Agreement.



However, in the event of an unforeseeable or unexpected event



or circumstance (hereinafter referred to as a "force majeure")



which is beyond the control of the parties, which could not be



overcome by due diligence, and which necessitates revision of a

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                                  30



 deadline(s)  contained  in this Agreement, the parties agree to



 review and modify  the  deadline(s), as necessary.



      B.    In the event of  a  force majeure which, in DOE's



 opinion,  necessitates  revision of a deadline(s) set forth in



 this  Agreement, DOE  shall  bear the burden of proof that the



 delay was caused by  an unforeseeable or unexpected event or



 circumstance,  that the event or circumstance was beyond the



 control of DOE, and  that the event or circumstance could not be



 overcome  by  due diligence.



      C.    As soon  as DOE becomes  aware of a significant event



 of  force  majeure which may necessitate revising a deadline(s),



 DOE shall promptly notify  the EPA and State project managers in



 writing.   Such notification  shall describe the cause and



 duration  of  the anticipated delay, the measures taken or to be



 taken  to  mitigate  the  anticipated delay, and the schedule for



 implementation of  mitigation measures.



      D.    If the Lead  Regulatory Agency determines that the



 delay  or  anticipated delay has been or will be caused by an



 unforeseeable  or unexpected event or circumstance which is



 beyond the reasonable  control of DOE, which could not be



 overcome  by  due diligence, and which necessitates revision of a



 deadline(s)  contained  in this Agreement, the Lead Regulatory



 Agency shall review  and modify the associated deadline(s), as



 necessary, to  conform  with the delay.



     E.    If the Lead  Regulatory Agency determines that the



delay or  anticipated delay has neither been nor will be caused

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                                 31



by an unforeseeable or unexpected event or circumstance which



is beyond the reasonable control of DOE, or that the delay or



anticipated delay could have been overcome by due diligence,



the existing deadline(s) shall remain in force.



     F.   In the event that DOE disagrees with any



determinations made by the Lead Regulatory Agency pursuant to



this Section, DOE may utilize the Dispute Resolution Section of



this Agreement to resolve such dispute.








      XIII. COVENANT NOT TO SUE AND RESERVATION OF RIGHTS



     A.   As of the effective date of this Agreement, and



during the term of this Agreement, the parties agree that so



long as DOE is in full compliance with the terms of this



Agreement, this Agreement shall operate in lieu of any



administrative action by EPA or the State, civil action by the



State, or civil referral by EPA to the Department of Justice,



against DOE with respect to the storage and continued



accumulation at RFP of those wastes which are prohibited, as of



the effective date of this Agreement, from land disposal



pursuant to the LDR of HSWA.



     B.   Except as otherwise set forth in this Agreement, the



parties reserve all other rights with respect to any other



party to this Agreement and with respect to any person not a



Party to this Agreement.

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                                 32



                         XIV. FUNDING



     A.   It is the expectation of the parties that all



obligations and commitments of DOE established by this



Agreement will be fully funded by DOE.  However, no provisions



herein shall be interpreted to require the obligation or



payment of funds in violation of the Anti-Deficiency Act, 31



U.S.C. 1341.



     B.   In the event that DOE is unable to fulfill its



obligations and commitments established by this Agreement due



to the unavailability of appropriated funds, the parties shall



attempt to agree upon appropriate adjustments to the dates



which require payment of such funds; if the parties are unable



to agree upon appropriate adjustments, EPA and the State



reserve the right to terminate their participation in this



Agreement.  Upon termination of participation pursuant to this



Section,  EPA and the State reserve any rights they may have tc



address the alleged LDR violations which were the subject of



this Agreement through any other available means.







                      XV.  EFFECTIVE DATE



     This Agreement shall become effective upon execution by



authorized representatives of EPA, the State, and DOE.  In the



event that authorized representatives of EPA, the State, and



DOE do not execute the Agreement on the same day, the Agreement



shall become effective upon the date which the last party



affixed its signature to the Agreement.

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                                 33
                XVI.  TERMINATION OR AMENDMENT

     A.   Upon mutual agreement of the parties, this Agreement

may be amended prior to its termination.

     B.   This Agreement shall terminate one year from its

effective date, unless extended, amended, or otherwise

terminated as set forth herein.  The parties agree, subject to

relevant considerations, including the facts, circumstances,

and status of DOE's compliance with this Agreement, to meet and

renegotiate in good faith the one year term of this Agreement.

     C.   Upon mutual agreement of the parties, this Agreement

may be terminated prior to one year from its effective date.




                  XVII.  ADDITIONAL SANCTIONS

     In addition to the other provisions of this Agreement,

including the Section on Enforceability, in the event that DOE
                                                S
fails to comply with the requirements set forth in this

Agreement pursuant to the deadlines set forth herein, subject

to the Sections on Delay In Performance, or Amendment, the

parties agree that the Lead Regulatory Agency shall have the

right to terminate this Agreement by written notice to the

parties.

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                                 34
THE PARTIES SO AGREE:
 ames J. Scherer ^            V          Date
Regional Administrator       "
U. S. Environmental Protection Agency,
Region VIII

Thomas P. Looby    '                       Date
Assistant Director for
Health and Environmental Protection
Colorado Department of Health
                                            f/f
David B. Kopel      7                    Date
Assistant Attorney General
State of Colorado

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                                     35
«
   FOR PURPOSES OF SECTION  VI,  PARAGRAPH E,
   IT IS SO AGREED:
\ i                                           Date
   Assistant Secretary  for Defense  Programs
  I Department of Energy

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                                 36
FOR PURPOSES OF SECTION VI, PARAGRAPH E,
IT IS SO AGREED:
jQ        ff                           Date
Assistant Secretary for Nuclear Energy
Department of Energy (Acting)

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                          37
FOR PURPOSES OF SECTION VI,  PARAGRAPH E,
IT IS SO AGREED:
Director of E/fergy Research       Date
Department of Energy

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                                 30
FOR PURPOSES OF THIS AGREEMENT,  EXCEPT SECTION VI,  PARAGRAPH  E,
IT IS SO AGREED:
 ks0M/// fr
 ivid PY Simcfi
David P. Simonson
Rocky Flats Office Manager
Department of Energy

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    CHAPTER 5
DOCKET/NPL LISTINGS

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                                      CHAPTERS
                                 DOCKET/NPL USTINGS
5A.    Federal Agency Hazardous Waste Compliance Docket Preambles
SB.    Federal Agency Hazardous Waste Compliance Docket Regional Listings
5C.    NPL listing
                                                                               1/90

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Friday
February 12, 1988
Part III

Environmental
Protection  Agency
Federal Agency Hazardous Waste
Compliance Docket; Initial List; Notice

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4280
Federal Register  /  Vol.  53. No.  29 / Friday. February 12. 1988  /  Notices
ENVIRONMENTAL PROTECTION
AGENCY

(FRt-3327-41

Federal Agency Hazardous Waste
Compliance Docket

AGENCY: Err. ironmentdl Protection
Agency.
ACTION: EPA imtidl list of Federal
facilities under CERCLA section I20lc).

SUMMARY: Section 120(c) of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 (CERCLA). as amended by
the Superfund Amendments and
Reauthonzation Act of 1986 (SARA).
requires the Environmental Protection
Agency (EPA) to establish a Federal
Agency Hazardous Waste Compliance
Docket that contains certain information
regarding Federal  facilities which
manage hazardous waste or have
potential hazardous waste problems.
The following list  identifies the Federal
facilities to be included in the initial
docket. This list of facilities will be
updated every six months as new
facilities are reported to EPA by Federal
agencies. For each Federal facility that
appears on the docket, the responsible
Federal agency must complete a
Preliminary Assessment to determine if
response actions are necessary.
OATC This list is current as of January
12.1988.
POM FURTHtM INFORMATION CONTACT:
RCR A /Superfund Hotline Telephone:
(800)424-9346 toll-free, or 382-3000
Washington. DC and FTS.
SUPFUMSMTARV INFORMATION:

Table of Contents
I. Introduction
II. Purpose of Docket
III. Definition of Facility for Docket Purpose*
IV. Process for Establishing the Docket
V Facilities Not Included
VI  Information Contained on Docket Listing

I. Introduction
   The Federal Agency Hazardous
Waste Compliance Docket ("docket") is
required to be established under section
I20(c) of the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1980
(CERCLA). 42 U.S.C. 9620(c). as
amended by the Superfund Amendments
and Reauthonzation Act of 1988
(SARA). The docket will contain
information on Federal facilities that is
submitted by Federal agencies to tne
 U.S. Environmental Protection Agency
("EPA" or "the Agency") under sections
3005. 3010. and 3016 of the Resource
Conservation and Recovery Act
 (RCRA), 42 U.S.C. 8925. 6910. and 6937.
                   and under section 103 of CERCLA. Thp
                   initial list of Federal facilities to be
                   included in the docket is being
                   published today. This list will be
                   updated every six months, beginning
                   with the publication of this notice, to
                   include new_faciUt\es on the docket that
                   are subsequently-repotted to EPA by
                   Federal agenciesrThe (information
                   submitted-to EPA on each Federal
                   facility, as required by the above
                   provisions, will be contained in docket
                   repositories located in the EPA Regional
                   office where the facility is found. A
                   complete national index of the
                   information found in the Regional
                   docket repositones will be maintained
                   at EPA Headquarters in Washington.
                   OC. and made available to the public
                   Although the Regional docket
                   repositories are not yet in place, the
                   Agency plans to have the Region 1
                   repository open to the public by January
                   1988. Region II by February 1988. and
                   the remaining Regional repositones
                   opened in a phased manner thereafter,
                   with all ten repositories due to be open
                   to the public by late spring. Additional
                   information on how to access
                   information found in the docket
                   repositories will be published later.
                   Until that time, interested parties should
                   contact the RCRA/Superfund Hotline
                   for information on how to arrange for
                   review and copying of specific
                   documents.

                    IL Purpose of the Docket
                      The purpose of the docket is three-
                    fold: (1) To identify the universe of
                    Federal facilities that must be evaluated
                    to determine if they pose risk to public
                    health and the environment: (2) to
                    compile and maintain the information
                    submitted to EPA on these facilities
                    under the provisions listed in section
                    120(c) of CERCLA: and (3) to provide a
                    mechanism to make this information
                    available to the public.
                      it is important to clarify that the
                    docket represents those Federal
                    facilities that may be contaminated with
                    hazardous substances. For instance.
                    some facilities may have been reported
                    under RCRA section 3010 simply
                    because they manage or have managed
                    hazardous waste, and not necessarily
                    because contamination has occurred.
                    Federal agencies have been delegated
                    the authority under Executive Order
                    12580 to conduct a Preliminary
                    Assessment (PA) for each of their
                    facilities on the docket within 18 months
                    of the date of enactment of SARA (i.e.,
                    Apnl 17,1988) as set forth in CERCLA
                    section 120(d). The Agency has alerted
                    Federal agencies of this requirement
                    EPA must ensure that the PAs an
                    completed. This initial assessment will
help determine if a release has oct
or if a significant threat of a reieas.
present, and whether or not the facihr>
should be evaluated for inclusion on tne
CERCLA National Priorities List I\PL)
Thus, the docket list is not intended to
serve as an NPL for Federal faciht.rs. It
will, however, identify those Federal
facilities that must be assessed. If the
PA indicates that additional evaluation
of the facility is necessary, the
responsible Federal agency must
provide to EPA. by April 1988. all the
information necessary for EPA to
perform a full Hazard Ranking System
(HRS) evaluation of the facility. EPA
will then propose the facility for
inclusion on the NPL if it meets the
established criteria.

ID. Definition of Facility for Docket
Purposes

   EPA has defined a "Federal facility."
for the purpose of docket listing, based
primarily on the RCRA definition of
facility (see 47 FR 32288-9 (1982) and 50
FR 28712 (1985)). This property-based
definition encompasses all contiguous
land that is owned by a department.
agency, or instrumentality of the United
States. The definition includes all_
individual sites or units on the owner's
property, including Government-owned.
contractor-operated sites. EPA belip
 that the PA should be completed foi
 entire Federal facility as defined, not
 just for the portions or units that may
 have been reported. The PA should also
 address contamination which may be
 emanating from the facility onto
 adjacent property, consistent with
 CERCLA section 120(b).
   EPA's use of the property-based
 definition is an attempt to reconcile the
 definition of "facility" in RCRA with the
 definition under CERCLA. This was
 necessary because information from
 both programs will be contained in the
 docket. The use of this definition also
 stems from the designations that are
 employed by the Federal agencies
 themselves when carrying out their
 programs. Most Federal agencies have
 specific landholdings under their
 jurisdiction that are confined within
 property boundaries, such as national
 parks and Department of Defense
 installations. Defining a Federal facility
 in these terms will also aid its
  identification by the public.
    The Bureau of Land Management
  (BLM) appears to be the only Federal
  agency whose property does not
  conform well to EPA's facility definition.
  BLM owns extensive and scattered
  lands, particularly in the western United
  States, which are difficult to divide ir
  small units of property that can be
i

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                    Federal Register  /  Vol.  53.  No. 29  /  Friday.  February  12. 19B8 / Notices
                                                                       42£
termed "facilities" ds defined above.
Therefore. EPA has decided to list the
individual sites owned by BLM
including sites leased to private parties)
'h;it are potentially contaminated. EPA
.Isu believes that the public can more
  ulily iiientifv SLM's property in the
     t  if individual situs dre hs'cd
IV. Process for Establishing the Docket
  In compiling the list which is being
published today. EPA extracted the
nnmcs and addresses of facilities from
three EPA data bases which contain
Federal facility information submitted
under the four provisions listed in
section 120(c). All Federal agencies were
given  the opportunity to comment on the
draft list  to ensure its accuracy. EPA has
beiiun compiling the information
submitted for each listed facility for
inclusion in the appropriate EPA
Regional  docket repository. Confidential
business  information, as defined in 40
CFR Part 2. Subpart  B (7986). will not be
available for public  inspection.
  The following is a brief description of
(he four provisions that require Federal
agencies  to report information to EPA:
  1. RCRA section 3005 establishes a
permitting system for hazardous waste
treatment, storage, and disposal (TSD)
facilities  based on EPA standards to
protect human health and the
environment. Information submitted
under RCRA section 3005 consists of the
TSD facilitv permit application
rr.atrnals.
  2 RCRA section J010 requires vxasle
generators, transporters dnd TSD
facility owner/operators to notify EPA
Tf thpir hazardous waste activities.
- 3. RCRA section 3016 requires Federal
"aaencies to submit to EPA an inventory
of hazardous waste sites that the
Federal agencies own or operate, or
have owned or operated in the past.
  4. CERCLA section 103(a) requires the
owner or operator of a vessel or facility
to notify the National Response Center
(\RC) of a release of reportable
quantities of hazardous substances. The
NRC conveys this information to all
appropriate government agencies.
including EPA. In addition. CERCLA
section 103(c) required an initial
reporting by June 9.1981 of known or
suspected hazardous waste sites.

V. Facilities Not Included
  EPA has decided not to include in the
docket at this time the following  three
categories of facilities:
  1. Facilities formerly owned by a
Federal agency and now privately
owned. However, facilities that are now
owned by another Federal agency will
remain on the docket with the
responsibility resting with the current
owner.
  1. Small Quantity Generators (SQC s
reported under RCRA section 1010 th.it
have never produced more than 1000 K*.
month of hazardous waste.
  3 Far.ilitiPS that are solely
transporters as reported under RCRA
section 3010.
  The Agency will be collectK'.a
additional information in  the coming
months on whethfr or not to .ndude on
or more of these categories in future
updates to the docket, and mav solicit
public comment on the issues at a later
date.

VI. Information Contained on Docket
Listing

  The list below is organized by Slate
and then grouped alphabetically within
each State by the Federal agency
responsible for the facility. This
information is then followed by the
facility name and address (as verified
by the Federal agency), the statutory
provision(s) under which the facility
was reported to EPA (indicated by an
"x" in the appropriate column(s)). and
the EPA Region where the facility is
located.
|.W. McGraw
Acting Assistant Administrator. Olf:cc of
Solid Waste and Emergency Response
   Dale: Februarys. 1968.

-------
Wednesday
November 16
1988
Part VIII



Environmental

Protection Agency

Federal Agency Hazardous Waste
Compliance Docket, First Six-Month
Update of Ust of Federal Facilities and
Revision to Initial Ust

-------
 46364
Federal Register  /  Vol. 53.  No. 221  /  Wednesday. November 16. 1988  /  Notices
 ENVIRONMENTAL PROTECTION
 AGENCY
 [FHL-346«-S]

 Federal Agency Hazardous Wast*
 Compliance Docket

 AGENCY: Environmental Protection
 Agency.
 ACTION: First six-month update of list of
 Federal facilities under CERCLA Section
 120(c) and revisions to initial list.

 SUMMARY: Section 120(c) of the
 Comprehensive Environmental
 Response, Compensation, and Liability
 Act of 1980 (CERCLA), as amended by
 the Superfund Amendments and
 Reauthorization Act of 1988 (SARA),
 requires the Environmental Protection
 Agency (EPA) to establish a Federal
 Agency Hazardous Waste Compliance
 Docket that contains certain information
 regarding Federal facilities that manage
 hazardous waste or have potential
 hazardous waste problems. CERCLA
 requires that the docket be updated
 every six months as new facilities are
 reported to EPA by Federal agencies.
 The following list identifies the Federal
 facilities to be included in  the first six-
 month update of the docket. For each
 Federal facility that appears on the
 docket, the responsible Federal agency
 must  complete, at a minimum, a
 Preliminary Assessment (PA) and, if
 warranted, a Site Inspection (SI) to
 determine if response actions are
 necessary. In addition to the update list,
 this notice includes a section comprising
 revisions to the initial list published
 earlier. At the time of publication of this
 notice, the new total number of Federal
 facilities listed on the docket is 1.170.
 DATE: This list is current as of October 3.
 1988.
 FOR FURTHER INFORMATION CONTACT:
 Federal Facilities Docket Hotline.
 Telephone: (800) 548-1016 toll-free.
 SUPPLEMENTARY INFORMATION:

 Table  of Contents
 I.  Introduction
 II.  Revisions to the Initial Docket
 111.  Process for Compiling the Updated
    Docket
 IV.  Facilities Not Included
 V.  Information Contained on Docket Listing

 I. Introduction
  The Federal Agency Hazardous
 Waste Compliance Docket ("docket")
 was required to be established under
 Section 120(c) of the Comprehensive
 Environmental Response.
Compensation, and Liability Act of 1980
(CERCLA), 42 U.S.C. 9620(c). as
 amended by the Superfund Amendments
and Reauthorization Act of 1986
                       (SARA). The docket contains
                       information on Federal facilities that is
                       submitted by Federal agencies to the
                       U.S. Environmental Protection Agency
                       ("EPA" or "the Agency") under sections
                       3005. 3010, and 3016 of the Resource
                       Conservation and Recovery Act
                       (RCRA), 42 U.S.C. 6925. 6930, and 6937.
                       and under Section 103 of CERCLA. The
                       purpose of the docket is three-fold: (1) to
                       identify the  universe of Federal facilities
                       that must be evaluated to determine if
                       they pose risk to public health and the
                       environment sufficient to warrant a
                       response action and/or inclusion on the
                       National Priorities List; (2) to compile
                       and maintain the information submitted
                       to EPA on these facilities under the
                       provisions listed in Section 120(c) of
                       CERCLA; and (3) to provide a
                       mechanism  to make this information
                       available to the public.
                         The initial list of Federal facilities to
                       be included in the docket was published
                       on February 12,1988 (53 FR 4280). This
                       list must be  updated every six months.
                       beginning with the publication of the
                       February notice, to include new
                       facilities on the docket that are
                       subsequently reported to EPA by
                       Federal agencies. The first six month
                       update of the docket is being published
                       today. The definition of facility for
                       docket purposes remains unchanged
                       from that employed for the initial docket
                       list (see 53 FR 4280 (1988)).
                         Today's notice is divided into two
                       major sections: "Docket Revisions" and
                       "Docket Update". The Docket Revisions
                       section is a listing of corrections that are
                       being made to the initial docket
                       published on February 12.1988. The
                       Docket Update section is the list of
                       newly identified facilities that have
                       been reported to EPA since the
                       compilation of the initial docket.
                         The information submitted to EPA on
                       each Federal facility, as required by the
                       above provisions, is contained in docket
                       repositories located in the EPA Regional
                       office where the facility is found. (See 53
                       FR 4280 (1988) for a description of the
                       information required under these
                       provisions.) All docket repositories an
                       currently operational and available to
                       the public. Each repository contains  the
                       documents submitted to EPA under the
                       reporting provisions (and/or
                       correspondence relevant to the reporting
                       provisions) indicated for each facility. A
                       complete national index of the
                       information found in the Regional
                       docket repositories will be maintained
                       at EPA Headquarters in Washington,
                       DC, and made available to the public.
                       This index will also be available for
                       public review at each Regional
                       repository. Contact the Federal Facilities
                       Docket Hotline for information on how
to arrange for review and copying of
specific documents.

1L Revisions to the Initial Docket

  Revisions to the initial docket can be
divided into  three overall categories: (1)
facilities being removed from the list; (2)
facilities being added to the list; and (3)
corrections. Each entry in the Revisions
section has been labelled with a code
indicating the reason for the change. A
key to  these  codes is found below.
  Necessary revisions to correct the
initial docket were identified by both
EPA and Federal agencies. These
revisions vary from simple address and
spelling changes to facility name
changes and ownership corrections.
Many are simply typographical or
typesetting errors. The affected Federal
agencies have been notified previously
of the revisions being published today.
  Facilities are  being removed from the
docket for a number of reasons, such as
the facility is not Federally owned.
incorrect reporting of hazardous waste
activity, change in Federal ownership.
exemption as a Small Quantity
Generator (SQG), etc. Facilities being
removed will no longer be  required to
conduct a Preliminary Assessment (PA)
as required by CERCLA Section 120(d)
for docket facilities.
  Some facilities are being added to the
docket now  because they were
inadvertently not included on the initial
list In most  cases, the additions are the
result of new information obtained by
EPA indicating  that a facility should
have been listed in the February notice.
For all facilities being added in this
section, the  responsible agency will
have 18 months from the date of this
publication to complete the required PA
and Site Inspection (SI), if warranted.
  EPA is today clarifying its policy of
not listing SQGs under RCRA on the
docket. The intent of the original policy
was to exempt  facilities from docket
listing that were solely SQGs and had
never  produced more than 1,000 kg in
any month. EPA did not include on the
initial docket a number of SQGs that
had also reported undef RCRA Section
3016 or CERCLA Section 103. The
Agency believes that if a facility reports
a release under Section 103 or other
hazardous waste activity, it is no longer
considered  to be solely a SQG. EPA
believes that these facilities must  be
assessed to determine if cleanup actions
are necessary.  Therefore,  today the
Agency is adding to the docket SQGs
that had previously reported to EPA
under other reporting provisions. Again.
these  facilities will have 18 months to
complete the appropriate  assessment.

-------
                Federal  Register / Vol. 53. No. 221  /  Wednesday. November 16.  1988 / Notices
                                                                      46365
  The corrections subsection is shown
in a slightly different format due to the
nature of the revisions, which include
typographical errors, name and address
changes, and changes in the reporting
mechanisms. For each facility, the
original entry as it appeared in the
February notice is shown directly above
the corrected entry for easy comparison.
These entries are organized
alphabetically by state instead of by
Federal agency.
  In the process of compiling the
documents for the Regional repositories,
EPA identified a number of facilities
that had previously submitted a PA
report, SI report, or in the case of some
Defense facilities, an Installation
Restoration Program (IRP) report yet
had not submitted a Section 103
notification form. Section 120(c)(3) of
CERCLA requires that EPA include
information submitted under Section 103
in the docket. In general. Section 103
requires any person who has knowledge
of known, suspected, or likely releases
of hazardous substances from a facility
to notify EPA. Thus, the Agency believes
that information it has received by
means of the above-mentioned reports
should be included in the docket
regardless of the absence of formal
Section 103 notification. Therefore, the
docket record for each of these facilities
is being corrected to indicate this
reporting.

III.  Process for Compiling the Updated
Docket
  In compiling the newly-reported
facilities  for the update being published
today, EPA extracted the names,
addresses, and identification numbers of
facilities from the three EPA data bases
(the RCRA  Section 3016 inventory data
base,  the Hazardous Waste Data
Management System, and the CERCLA
data base) that contain Federal facility
information submitted under the four
provisions listed in Section 120(c).
  Extensive computer checks compared
the  initial docket list with the
information obtained from the above
data bases  to determine which facilities
were,  in fact, newly reported end
qualified for inclusion on the update.
The Agency has found it extremely
difficult to reconcile the file structures
and reporting differences in the various
data bases  for docket purposes.
Consequently, it is possible that some
individual sites were included in this
update instead of. or in addition to, the
overall facility as required. It is also
possible that state-owned or privately-
owned facilities have been included in
spite of the quality assurance efforts
that EPA has undertaken. These
potential problems are the result of
historical procedures used to report and
track Federal facility data and the
Agency is working to resolve them.
Federal agencies are requested to
contact EPA's Docket Coordinator in
writing at the following address if
revisions to the update information
being published are necessary.
  Federal Facilities Docket Coordinator,
US EPA. 401 M Street SW. (OS-503).
Washington, DC 20460.
IV. Facilities Not Included
  EPA is not including the following
categories of facilities in the docket at
this time:
  1. Facilities formerly owned by a
Federal agency and now privately
owned. However, facilities that are now
owned by another Federal agency will
remain on the docket with the
responsibility resting with the current
owner. The agency is still considering
listing formerly-owned DOO facilities on
the docket at a later time. However, a
number of related policy issues have not
yet been resolved. Therefore, formerly-
owned facilities will not be listed on this
update.
  2. Any facilities not currently owned
by a Federal agency. For example.
facilities that are operated by the
Federal government under state or
private ownership will not be listed on
the docket.
  3. Small Quantity Generators that
have never produced more than 1,000 kg
in any month and have  not reported
spills under Section 103 or other
hazardous waste activities under
Section 3016.
  4. Facilities that are solely
transporters as reported under RCRA
Section 3010.
  5. Any facilities not reported by a
Federal agency.
  The  agency will be collecting
additional information in the coming
months on whether or not to include one
or more of these categories in furore
updates to the docket and may solicit
public comment on the  issues at a later
date.
V. Information Contained on Docket
Listing
  As discussed above,  the information
below is divided into two separate
sections. The first section is comprised
of revisions to the list published on
February 12,1988. The  revisions Section
is broken into the following categories:
facility removals, facility additions,
corrections, and miscellaneous. Bach
facility on the revisions list is coded.
This code refers to the  code key
preceding the lists, and indicates the
specific reason(s) for revision. The
second section is the list of new
facilities (not facilities added as
corrections) that are being added at this
six month update.
  All facilities added to the docket
today, either as revisions or newly
added facilities have a "date of listing"
indicator, shown as "* *" in this
column. All facilities with	in the
date of listing column must submit PAs
and Sis, if warranted to EPA within IS
months of the date of this publication.
This includes any facility changing
responsible agencies (codes 21 and 22).
These reports should be submitted to the
CERCLA Federal Facility Coordinator in
the appropriate EPA Regional office.
Facilities listed in the corrections
subsection  do not have a date of listing
column since the correction(s) for these
facilities as shown in this notice do not
affect the statutory assessment
deadline; these facilities should have
already submitted the required
assessment(s) to EPA by April 17.1988.
  Facilities in both the revisions section
and the update section are organized by
State and then grouped alphabetically
within each State by the Federal agency
responsible for the facility, except for
the corrections. As mentioned before.
these entries are organized
alphabetically by state. This information
is then followed by the facility name
and address, the statutory provision(s)
under which' the facility was reported to
EPA (indicated by an "x" in  the
appropriate column(s)), the EPA Region
where the facility is located, the
correction  code, and date of listing if
appropriate.
   The complete list of Federal facilities
that now comprises the docket is not
being published today. However, the list
is availabfe to interested parties and can
be obtained by calling the Federal
Facilities Docket Hotline. As today, the
total number of Federal facilities that
appear on  the docket is 1.170.
J. Whutoa Porttt.
Assistant Administrator.
   Data: October 21.1968.

-------
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-------
               NATIONAL PRIORITIES LIST,
           FEDERAL FACILITY SITES (BY STATE)
                     OCTOBER 1989
                                                      Date
St
AK
AK
AK
AK


AL
AL


AZ
AZ
AZ

CA
CA
CA
CA
CA
CA
CA
CA
CA

CA

CA
CA

CA

CA
CA
CA
CA
CA
CA
CA
CA

Site Name
Eielson Air Force Base
Elmendorf Air Force Base
Fort Wainwright
Standard Steel & Metal
Salvage Yard (USDOT)
0 Final + 4 Proposed = 4
Alabama Army Ammunition Plant
Anniston Army Deport (Southeast
Industrial Area)
2 Final + 0 Proposed = 2
Luke Air Force Base
Williams Air Force Base
Yuma Marine Corps Air Station
0 Final + 3 Proposed = 3
Barstow Marine Corps Logistics
Camp Pendleton Marine Corps Base
Castle Air Force Base
Concord Naval Weapons Station
Edwards Air Force Base
El Toro Marine Corps Air Station
Fort Ord
George Air Force Base
Lawrence Livermore National
Laboratory (USDOE)
Lawrence Livermore National
Laboratory (Site 300) (USDOE)
March Air Force Base
Mather Air Force Base (AC &
W Disposal Site)
McClellan Air Force Base
(Ground Water Contamination)
Moffett Naval Air Station
Norton Air Force Base
Riverbank Army Ammunition Plant
Sacramento Army Deport
Sharpe Army Depot
Tracy Defense Depot
Travis Air Force Base
Treasure Island Naval Station -
Hunters Point Annex
City/County
Fairbanks N Star Bor
Greater Anchorage Bo
Fairbanks N Star Bor

Anchorage

Childersburg
Anniston


Glendale
Chandler
Chandler

Barstow
San Diego County
Merced
Concord
Kern County
El Toro
Marina
Victorville

Livermore

Livermore
Riverside

Sacramento

Sacramento
Sunnyvale
San Bernardino
Riverbank
Sacramento
Lathrop
Tracy
Solano County

San Francisco
Proposed
7/89
7/89
7/89

7/89

10/84
10/84


7/89
7/89
7/89

7/89
7/89
10/84
6/88
7/89
6/88
7/89
7/89

10/84

7/89
7/89

10/84

10/84
4/85
10/84
6/88
10/84
10/84
7/89
7/89

7/89
Final






7/87
3/89








7/87






7/87




7/87

7/87
7/87
7/87

7/87
7/87




8 Final + 13 Proposed = 21
-------
                            NATIONAL PRIORITIES LIST,
                        FEDERAL FACILITY SITES (BY STATE)
                              OCTOBER 1989 (Continued)
           2 Final + 1 Proposed = 3

DE  Dover Air Force Base

           1 Final + 0 Proposed = 1

FL  Cecil Field Naval Air Station
FL  Homestead Air Force Base
FL  Jacksonville Naval Air Station
FL  Pensacola Naval Air Station

           0 Final + 4 Proposed = 4

GA  Marine Corps Logistics Base
GA  Robins Air Force Base (Landfill
      #4/SIudge Lagoon) (once listed
      as Robins Air Force Base)

           1 Final + 1 Proposed - 2

HI  Schofield Barracks

           0 Final + 1 Proposed = 1

IA  Iowa Army Ammunition Plant

           0 Final + 1 Proposed = 1

ID  Idaho National Engineering
      Laboratory (USDOE)
ID  Mountain Home Air Force Base

           0 Final + 2 Proposed = 2

IL   Joliet Army Ammunition Plant
      (Load-Assembly-Packing Area)
IL   Joliet Army Ammunition Plant
      (Manufacturing Area)
IL   Sangamo Electric Dump/Crab
      Orchard National Wildlife
      Refuge (USDOI)
IL  Savanna Army Depot Activity

           4  Final + 0 Proposed = 4
Dover
Jacksonville
Homestead
Jacksonville
Pensacola
Albany


Houston County



Oahu



Middletown
Idaho Falls
Mountain Home
Joliet

Joliet
Carterville
Savanna
                                                   t
                                                                         Date
St
CO
CO
CO
Site Name
Air Force Plant PJKS
Rocky Flats Plant (USDOE)
Rocky Mountain Arsenal
City/County
Waterton
Golden
Adams County
Proposed
7/89
10/84
10/84
Final
10/89
7/87
10/84
7/89
7/89
7/89
7/89
7/89


10/84



7/89



7/89
7/89
7/89
4/85

10/84
10/84
10/84
3/89
7/87
3/89

7/87
7/87
3/89
-------
                             NATIONAL PRIORITIES LIST,
                        FEDERAL FACILITY SITES (BY STATE)
                              OCTOBER 1989 (Continued)
                                                                          Date
St
Site Name
City/County
Proposed
Final
KS        Fort Riley

           0 Final + 1 Proposed = 1

LA  Louisiana Army Ammunition Plant

           1 Final + 0 Proposed = 1

MA  Fort Devens
MA  Fort Devens-Sudbury Training
       Annex
MA  Otis Air National Guard Base/
       Camp Edwards

           0 Final + 3 Proposed = 3

MD  Aberdeen Proving Ground (Edgewood
       Area
MD  Aberdeen Proving Ground
       (Michaelsville Landfill)

           1 Final + 1 Proposed = 2

ME  Brunswick Naval Air Station

ME  Loring Air Force Base

           1 Final + 1 Proposed = 2

MN  Naval Industrial Reserve Ordnance
       Plant
MN  Twin Cities Air Force Reserve Base
       (Small Arms Range Landfill)

           1 Final + 1 Proposed = 2

MO  Lake City Army Ammunition Plant
       (Northwest  Lagoon)
MO  Weldon Spring Quarry/Plant/Pits
       (USDOE, Army) (once listed as
       Weldon Spring Quarry)
MO  Weldon Spring Former Army Ordnance
       Works

           1  Final + 1 Proposed = 2

NC  Camp Lejeune Military Reservation
       (once listed as Camp Lejeune
       Marine Corps Base)
Junction City



Doyline



Fort Devens

Middlesex County

Falmouth
Edgewood

Aberdeen



Brunswick

Limestone
Fridley

Minneapolis




Independence




St. Charles County
7/89



10/84



7/89

7/89

7/89




4/85

4/85



10/84

7/89




7/89

1/87




10/84




7/89
3/89
10/89
7/87
7/87
7/87
Onslow County
6/88
10/89
           1 Final + 0 Proposed = 1
-------
                            NATIONAL PRIORITIES LIST,
                        FEDERAL FACILITY SITES (BY STATE)
                             OCTOBER 1989 (Continued)
St
Site Name
City/County
                                                                         Date
Proposed
Final
NE  Cornhusker Army Ammunition Plant   Hall County

           1 Final + 0 Proposed = 1

NH  Pease Air Force Base

           0 Final + 1 Proposed = 1
                             Portsmouth/Newington
NJ   Federal Aviation Administration
      Technical Center
NJ   Fort Dix (Landfill Site)
NJ   Naval Air Engineering Center
NJ   Naval Weapons Station Earle (Site A)
NJ   Picatinny Arsenal
NJ   W.R. Grace & Co., Inc./Wayne Interim
      Storage Site (USDOE) (once listed
      as W.R. Grace & Co.,  Inc. (Wayne
      Plant))

           3 Final + 3 Proposed - 6

NM Cal West Metals (USSBA)
NM Lee Acres Landfill (USDOI)

           1 Final + 1 Prosposed = 2

NY Brookhaven National Laboratory
      (USDOE)
NY Griffiss Air Force Base
NY Pittsburgh Air Force Base
NY Seneca Army Depot

           1 Final + 3 Proposed = 4

OH Feed Materials Production Center
      (USDOE)
OH Mound Plant (USDOE)
OH Wright-Patterson Air Force Base

           1 Final + 2 Proposed = 3

OK Tinker Air force  Base (Soldier Creek/
      Building 3001)

           1 Final + 0 Proposed = 1

OR Umatilla Army Depot (Lagoons)

            1  Final + 0 Proposed = 1
                             Atlantic County
                             Pemberton Township
                             Lakehurst
                             Colts Neck
                             Rockaway Township
                             Wayne Township
                             Lemitar
                             Farmington
                             Upton
                             Rome
                             Pittsburgh
                             Romulus
                             Fernald
                             Miamisburg
                             Dayton
                             Oklahoma City
                             Hermiston
                                                      10/84
                      7/89
                      7/89
                      10/84
                      9/85
                      10/84
                      7/89
                      9/83
                      6/88
                      6/88
                      7/89
                      10/84
                      7/89
                      7/89
                      7/89
                      7/89
                      6/88
                      4/85
                       10/84
                                   7/87
               7/87
               7/87
               9/84
               3/89
                                                                                 i
               7/87
                10/89
                7/87
                7/87
-------
                         NATIONAL PRIORITIES LIST,
                     FEDERAL FACILITY SITES (BY STATE)
                          OCTOBER 1989 (Continued)
                                                                 Date
St
PA
PA
PA
PA

PR

RI
RI

SC

TN
TN

TX
TX
TX

UT
UT
UT
UT

VA

WA
WA
Site Name
Letterkenny Army Depot (Property
Disposal Office Area)
Letterkenny Army Depot
(Southeast Area)
Naval Air Development Center
(8 Waste Areas)
Tobyhanna Army Depot
3 Final + 1 Proposed = 4
Naval Security Group Activity
1 Final + 0 Proposed = 1
Davisville Naval Construction
Battalion Center
Newport Naval Education
& Training Center
0 Final + 2 Proposed = 2
Savannah River Site (USDOE)
0 Final + 1 Proposed = 1
Milan Army Ammunition Plant
Oak Ridge Reservation (USDOE)
1 Final + 1 Proposed = 2
Air Force Plant #4 (General Dynamics)
Lone Star Army Ammunition Plant
Longhorn Army Ammunition Plant
1 Final + 2 Proposed = 3
Hill Air Force Base
Monticello Mill Tailings (USDOE)
Ogden Defense Depot
Tooele Army Depot (North Area)
2 Final + 2 Proposed = 4
Defense General Supply Center
1 Final + 0 Proposed = 1
Bangor Naval Submarine Base
Bangor Ordnance Disposal
City/County
Franklin County
Chambersburg
Warminster Township
Tobyhanna

Sabana Seca

North Kingstown
Newport

Aiken

Milan
Oak Ridge

Fort Worth
Texarkana
Karnack

Ogden
Monticello
Ogden
Tooele

Chesterfield County

Silverdale
Bremerton
Proposed
4/85
10/84
6/86
7/89

6/88

7/89
7/89

7/89

10/84
7/89

10/84
10/84
7/89

10/84
7/89
10/84
10/84

10/84

7/89
10/84
Final
3/89
7/87
10/89

10/89





7/87

7/87

7/87
7/87

7/87

7/87
WA Bonneville Power Administration
     Ross Complex (USDOE)
Vancouver
7/89
-------
St
                           NATIONAL PRIORITIES LIST,
                      FEDERAL FACILITY SITES (BY STATE)
                            OCTOBER 1989 (Continued)
                                                                     Date
Site Name
City/County
Proposed
Final
WA

WA
WA
WA
WA
WA
WA
WA

WA

WA

WA

Fairchild Air Force Base
(4 Waste Areas)
Fort Lewis (Landfill No. 5)
Fort Lewis Logistics Center
Hanford 100- Area (USDOE)
Hanford 11 00- Area (USDOE)
Hanford 200- Area (USDOE)
Hanford 300-Area (USDOE)
McChord Air Force Base (Wash Rack
/Treatment Area)
Naval Air Station, Whidbey
Island (Ault Field)
Naval Air Station, Whidbey
Island (Seaplane Base)
Naval Undersea Warfare Engineering
Station (4 Waste Areas)

Spokane County
Tacoma
Tillicum
Benton County
Benton County
Benton County
Benton County

Tacoma

Whidbey Island

Whidbey Island

Keyport

6/88
10/84
7/89
6/88
6/88
6/88
6/88

10/84

9/85

9/85

6/86

3/89
7/87

10/89
10/89
10/89
10/89

7/87





10/89
          9 Final + 5 Proposed = 14

WY  F. E. Warren Air Force Base

          0 Final + 1 Proposed = 1

          52 Final + 63 Proposed =115
                           Cheyenne
                     7/89
-------
       CHAPTER 6
OTHER APPLICABLE GUIDANCE
-------
                                        CHAPTERS
                               OTHER APPLICABLE GUIDANCE
6A.    Land Ban
       J. Cannon, Policy for Superfund Compliance with the RCRA Land Disposal Restrictions, OSWER
       Directive 9347.1-02

6B.    Mixed Waste

       Department of Energy's (DOE) Final Byproduct Rule on Mixed Waste Regulation at DOE
       Facilities (OSWER memo and 10 CFR Part 962, 52 Federal Register. May 1, 1987)

       Clarification of Interim Status Qualification Requirements for the Hazardous Components of
       Radioactive Mixed Waste (53 Federal Register. September 23, 1988)

       Bruce Weddle, OSW, State Program Advisory #2 - RCRA Authorization to Regulate Mixed
       Wastes

       State Authorization to Regulate Hazardous Components of Radioactive Mixed Wastes (51
       Federal Register. July 3, 1986) as attachment

       Office of General Counsel, Regulation of Radioactive Mixed Waste Under RCRA


6C.    RCRA Operating Guidance:  Chapter 5, Federal Facilities
                                                                                    1/90
-------
       t
  A  \          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
  W                         WASHINGTON, O.C. 20460
»
                                   APR 17

                                                            CSWER  Directive  9347.1-'.
 NBfiRANDQM
 SUBJECT:  Policy for Superfund Compliance With the RCRA Land Disposal
           Restrictdor
              •Cwu
 FROM:     Jon,
           Acting Assistant Administrator

 TO:       Regional Administrators, Regions I-X
 Purpose

      To transmit the Superfund policy for complying with the RCRA land
 disposal restrictions (LDRs) at Superfund sites.
      CERCLA section 121 (d) requires on-site Superfund remedial actions  co
 comply with Federal, and more stringent State, environmental requirements that
 are determined to be applicable or relevant and appropriate requirements
 (ARARs).  Section 121 also identifies six ARAR waivers:  1) interim remedy;
 2) greater risk to human health and the environment; 3) technical
 impracticability; 4) equivalent standard of performance; 5) inconsistent
 application of State standard; and 6) Fund-balancing.

      With regard to Superfund removal actions, the current NCP requires on-site
 removal actions to comply with Federal ARARs to the extent practicable,
 considering the exigencies of the situation.  The preamble to the proposed NCP
 contains guidance on how to determine whether compliance is "practicable."

      On-sita removal and remedial actions must comply with substantive aspects
 of both applicable and relevant and appropriate requirements.  Off-site removal
 and remedial actions must comply with both substantive and administrative
 aspects of applicable requirements only.

      The RCRA land disposal restrictions are a potential ARAR for Superfund
 actions.  As you may know, OERR is developing a guidance document to assist the
 Regions in complying with the LDRs.  Although several issues must be resolved
-------
                                      ~2~                           9347.1-02

before this guidance ia issued, this memorandum will summari-e one of the maj
issues that has been decided, namely, how to determine whether the LDRs  are
"applicable" to a Superfund response action.   This policy will be discussed in
greater detail in the guidance document.

Objective

     In order to assist Regional removal  and remedial staff in making current
site decisions about the LDRs, this memorandum will explain:   1)  how to
determine when the LDRs are "applicable"  to a Superfund removal or remedial
action, and 2) the Superfund approach for complying with the LDRs when they are
determined to be applicable.  (This memorandum does not address how to make
"relevant and appropriate" determinations.)
     Section A below explains how site managers (OSCs,  RPMs) should determine
whether the LDRs are "applicable" to a Superfund response action.   Section B
explains how Superfund intends to comply with the LDRs  when they are
determined to be applicable.

A.  Application of the LDRs to CERCLA response actions

     To determine if the LDRs are applicable to a given response action at a
Superfund site, the site manager must answer three questions.  The answer to
each question must be "yes" for the LDRs to be applicable.

    I.   Does the CERCLA action constitute "placement"?

     The LDRs are triggered as applicable requirements  by "placement" of
restricted RCRA hazardous wastes in land-based units.1   Placement occurs when
wastes are land disposed (or placed) in land-based RCRA units, such as
landfills, surface impoundments, waste piles, and land treatment facilities.
Placement does not occur if wastes are moved within a unit or are left in place
(e.g.,  capping, in-sdtu treatment, consolidation within a unit).  Placement
does occur when wastes are moved from one unit and placed in another unit.   For
example, if wastes from a CERCLA site are disposed at an off-site landfill,
this action constitutes placement.

     However, the concept of a RCRA unit may be less useful  for uncontrolled
hazardous waste sites, which often involve widespread and dispersed
contaminstion.  Therefore,  to assist  in defining when placement occurs  for  on-
site disposal at Superfund  sites, the Agency has developed  the  concept  of  an
 1 Several LDR requirements  (the storage  restrictions,  dilution prohibition,
  and off-site notification requirements,  in particular)  are triggered when
  restricted wastes  are  generated,  or picked up,  rather than when the wastes
  are "placed."  However,  the major LDR  restrictions discussed in the
  remainder of this  memorandum are  triggered only if wastes are "placed."
-------
                                      -3-                           9347.1-02

"area of contamination"  (AOC).  An AOC is delineated by the extent of
continuous contamination, although one AOC may contain varying types and
concentrations of contamination.  For example, a waste pit with the surrounding
contaminated soil is one AOC and may be viewed as a single "unit," e.g., a
single landfill.  For the purposes of the LDRs, therefore, AOCs are equivalent
to RCRA units.

     Movement of waste within the AOC does not constitute placement, but
movement of waste out of the AOC into another unit will trigger placement.
Placement would occur if wastes from different AOCs are consolidated into one
AOC or if wastes are removed and treated outside the AOC and returned to the
same or a different AOC.  Placement would also occur if wastes are excavated
from the AOC, placed in an incinerator or tank located within the AOC, and then
redeposited into the AOC, because the incinerator and tank are considered
separate units from the AOC.

    2.  Is the CERCLA waste also a RCRA hazardous waste?

     The LDRs are applicable only to RCRA hazardous wastes (i.e., listed and
characteristic wastes identified under §261).  However, not all wastes at
Superfund sites are RCRA hazardous wastes.  Tharefore, the site manager must
decide if it is reasonably ascertainable, within the scope of the Superfund
site investigation, that the CERCLA waste is also a RCRA hazardous waste.
Reasonable efforts must be used to collect the information needed to determine
if a waste is a RCRA listed or characteristic waste.  (It is expected that
current data collection efforts at Superfund sites should be sufficient for
this purpose.)  Th* site manager should have affirmative evidence (e.g.,
manifests, records, knowledge of process) to demonstrate that the Superfund
waste is a RCRA hazardous waste for the LDRs to be potentially applicable.

     To determine whether a CERCLA waste is a RCRA characteristic waste, site
managers may test the waste or use their knowledge of the properties of the
waste.  To determine if a waste is a listed waste, sampling alone will not be
sufficient.  The RCRA listing descriptions will generally require that the sice
manager have knowledge about the source of the waste (for example, did the
sludge on site result from a wastewater treatment operation?) or its prior use
(e.g., was the waste unused when it was discarded?).

     If the site manager determines that the site waste is a RCRA hazardous
waste, he/she must also determine if that waste is a "California list" waste.
The California list wastes are a distinct category of RCRA hazardous wastes
regulated under the LDRs.  The LDR regulations describe the California  list
wastes and they will be discussed in the forthcoming guidance document.

     3.  Is the RCRA waste restricted under the LDRs at the time of  placement?

     The land disposal restrictions are being  phased in for the  RCRA hazardous
wastes over a period of  time.  Attachment  1 presents the  LDR  statutory
deadlines established by section 3004 of the  1984 RCRA  amendments.   A RCRA
waste becomes a restricted waste under  the LDRs on  its  statutory deadline, or
earlier if EPA chooses to promulgate treatment standards  for  a waste prior to
this deadline.  Note that after May  1990,  all  RCRA  hazardous  wastes (that were
-------
                                      -4-
                                                                    9347.1-02
listed or characteristic as of the 1984 RCRA amendments)  will  be restricted
under tltt LDRa.

     To determine if the LDRs are applicable,  site managers  should  determine if
the RCRA waate will be restricted under the LDRs  at the  time the waste is to be
placed.

     To summarize Section A, the LORs are applicable when three  conditions are
met:  1) tne CERCLA action constitutes placement,  2) the  CERCLA  waste  is  a RCRA
hazardous waste, and 3) the RCRA waste is restricted at the  time of placement.
If these conditions are met, the CERCLA action must comply with  the LDRs,
unless an ARAR waiver is granted (remedial actions)  or compliance with the LDRs
is determined not to be "practicable" (removal actions).


B.  Super fund compliance with the LDRa

     Section B briefly describes the different types of LDR  requirements  and
provides an overview of the Super fund approach for complying with these LDR
requirements when they are determined to be "applicable." Section B- describes
only the major LDR restrictions; the upcoming guidance document  will give a
complete description of all LDR provisions.

     1 .   Summary of the majo,r LP^. requirements

     When a waste becomes "restricted" on its statutory  deadline (or possibly
earlier), one of four types of restrictions will  take effect:

    Treatment standard (§268.40-43) - The RCRA amendments direct EPA to
    promulgate treatment standards for all RCRA hazardous wastes by the
    statutory deadlines.  To date, most of the standards  set by  EPA are
    concentration levels that must be achieved prior to  land disposal.   (The
    regulations specify whether a total waste analysis or the  Toxicity
    Characteristic Leaching Procedure (TCLP) must be used to measure the
    concentration levels.)  For concentration-based treatment standards,  any
    technology may be used to achieve these standards.   However, in limited
    cases,  EPA has also promulgated a specific technology as a treatment
    standard, or has established a "no land disposal" treatment  standard where
    a waste waa no longer generated, no longer being land disposed, or was
    capable of being totally recycled.

                      extension (§268.30-33) - When EPA  sets a treatment
    standard for a waste, it must also determine if there is sufficient
    capacity available nationwide to treat the waste to that standard.   If
    not, EPA may grant a nationwide capacity extension for the waste for up  to
    two years.  During the extension, the waste does not have to meet the
    treatment standard.  However, if waste that does not meet the standard is
    disposed in a landfill or surface impoundment, the receiving unit must
    meet the RCRA §3004(o) minimum technology requirements (e.g., double
    liner, leachate collection system, ground water monitoring).  Because of
    these limitations on disposal, wastes are still considered "restricted"
    during national capacity extensions.
-------
                                      -5-                           9347.1-02
    AttachMnt 2 hifhlights the national capacity extensions  that EPA has
    granted to date for CERCLA soil .and debris wastes that  are contaminated
    with 1CTA reatricted wastes.
         tlM"Mr (5268.8) - If EPA fails to set a treatment  standard  for a
    First or Second Third waste on the statutory deadline,  the soft  hammer
    goes into effect automatically.  The soft hammer places two  requirements
    on the disposal of wastes in landfills and surface impoundments:   1) the
    receiving unit must meet the RCRA minimum technology requirements, and
    2) the generator must demonstrate and certify that he has investigated
    treatment options for the waste, and, where treatment is practically
    available, that the waste has been treated using the best practically
    available treatment method.  The soft hammer remains in effect until EPA
    sets a treatment standard for the waste, or until the hard hammer  falls in
    May 1990, whichever comes first.
    Hard ^anyer (RCRA §3004(g) ( 6 ) (C) )  - If EPA fails to set a treatment
    standard for a solvent, dioxin, or California list waste by the  statutory
    deadlines for these wastes,  or for any "Third" waste by May 1990,  the hard
    hammer falls.  The hard hammer prohibits all land disposal of the  affected
    waste.


     Compliance with RCRA and the LDRs may also be obtained through  several
options other than meeting the restrictions above.  It is important  to note
that these options constitute compliance with RCRA; they do not require  an ARAR
waiver under CERCLA.

    A Treatabilitv Variance (§268.44)  is available when a treatment  standard
    has been set for a waste.  The variance can be used where, because the
    site manager's waste is significantly different from the waste used  by EPA
    to set the treatment standard, the standard cannot be met or the BOAT
    technology is inappropriate.  The variance can be granted either
    administratively, for a particular waste at a particular site, or through
    a rule-making procedure, which establishes a new nationwide waste category
    and associated treatment standard.

    An Equivalent Treatment Method Petition (§268.42) can be used where a
    treatment standard is a specified technology, but the site manager can
    demonstrate that another technology can achieve an equivalent measure of
    performance.

    A No-Migration Petition (§268.6) can be used  as an alternative  to any of
    the four restrictions above.  The site manager must  demonstrate that  there
    will be no migration of hazardous constituents above health-based levels
    from the disposal unit or injection zone for  as long as  the  waste remains
    hazardous.

    Delisting (§260.20 and §260.22) can be used as  an alternative to  any of
    the four restrictions above, when the RCRA hazardous waste is a listed
    waste.  The site manager must demonstrate  that:  1)  the waste does not  -"set
    any of the criteria under which the waste was listed,  and 2) other  f.-. .tors
-------
                                      -6-
                                                                    9347.1-02
    (including additional constituents) would not cause the waste to be
    hazardous.

     3i  Sifpgrfund approach for complying with the LDR requirement^

     The present Superfund approach for complying with the LDRs when they are
applicable requirements is illustrated below:
                                                                      i
CASE A:  CERCLA liquid or sludge wastes that are also RCRA restricted
         hazardous wastes
CERCLA liquid  +
  or sludge
  RCRA restricted
  hazardous waste
 Placement  »  LDR is applicable.   Must
               comply (unless CERCLA
               ARAR waiver is granted).
               If the LDR restriction is
               a treatment standard,
               evaluate whether it can
               be met.  If not,
               determine if a
               Treatability Variance or
               other RCRA option is
               appropriate.
CASE B:  CERCLA soil or debris wastes that contain RCRA restricted
         hazardous wastes
CERCLA soil
 or debris
RCRA restricted
hazardous waste
Placement   *  LDR is applicable.  Must
               comply (unless CERCLA
               ARAR waiver is granted).
               If LDR restriction is a
               treatment standard, will
               generally be appropriate
               to seek a Treatability
               Variance.  Other RCRA
               options may also be
               appropriate.
     CERCLA response actions often address waste matrices, such as contaminated
soil and debris, that are different from the RCRA industrial wastes used  to  set
the LDR treatment standards.  Therefore, the Agency  is undertaking a  rulemaking
that will set LDR treatment standards specifically for contaminated soil  and
debris.  Until that rulemaking  is completed, site managers should use the data
collected during the removal and remedial site  investigations  to support  a
Treatability Variance for soil  and debris where necessary.  As part of this
interim approach, the Agency is developing specific  guidance  for obtaining a
Treatability Variance for soil  and debris, which establishes  alternate
"treatment levels or methods for soil  nd debris.
-------
                                      -7-                           9347.1-02

     If you hav« further questions, you may call the Headquarters Superfund
RegionaXjCBOrdinators, Carolyn Offutt of the CERCLA program (FTS 475-9760), or
Michaell* Vilaon of the RCRA land disposal restrictions program (FTS 382-4770).

Attachment*

cc:  Regional Counsel, Regions I-X
     Director, Waste Management Division, Regions I, IV, V, VII, and VIII
     Director, Emergency and Remedial Response Division, Region II
     Director, Hazardous Waste Management Division,  Regions III and VI
     Director, Toxics and Waste Management Division, Region IX
     Director, Hazardous Waste Division, Region X
     Environmental Services Division Directors, Regions I, VI, and VII
     Henry Longest
     Sylvia Lowrance
     Bruce Diamond
     Lisa Friedman
     Superfund Branch Chiefs, Regions I-X
     Oil and Hazardous Materials Coordinators, Regions I-X
     Bettie Van Epps, OERR Document Coordinator
-------
                                 Attachment  1

                           LDR STATUTORY DEADLINES
RCRA HAZARDOUS WASTE
STATUTORY DEADLINE*
Spent solvent wastes (F001-F005)

Dioxin wastes (F020-F023 and F026-F028)

California list wastes
   • Any RCRA hazardous waste; and
   - Liquid (except for HOCs); and
   - Exceeds statutory prohibition level for
     certain cyanides, metals, corrosives,
     PCBs or HOCs

CERCLA/RCRA corrective action soil and debris
   (Solvent-containing, dioxin-containing,  and
   California list wastes only)

First Third wastes (listed RCRA hazardous wastes)

Second Third wastes (listed RCRA hazardous wastes)

Third Third wastes (listed and characteristic
   RCRA hazardous wastes)

New RCRA wastes (any RCRA hazardous waste listed
   or identified under RCRA 3001 after
   November 8. 1984)
November 8, 1986

November 8, 1986

July 8, 1987
November 8, 1988



August 8, 1988

June 8, 1989

May 8, 1990
Within 6 months
of listing or
identification**
*  These dates are statutory deadlines in HSWA.  On this date, some type
   of LDR restriction will apply (i.e., treatment standard, minimum
   requirement during national capacity extension, soft hammer, hard
   hammer).  However, the Agency also has the authority to restrict a wasce
   earlier than its statutory deadline.  Currently, the Agency is planning
   to restrict certain Third Third wastes in the June 1989 Second Third  rule,
   so individual regulations must be checked.

** If EPA misses the 6 month deadline, che waste will not be  restricted  unde:
   the LDRs because HSWA contained no hammer provisions for newly identified
   wastes.
-------










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V
   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

               WASHINGTON, O C. 20460
                                                            DFK.CE OF
                                                   SOLID WASTE AND EMERGENCY
   MEMORANDUM
   SUBJECT:f \Departme
             an Mixe
   FROM:
   TO:
              Energy's (DOE) Final Byproduct Rule
               Regulation at DOE Facilities
  "WiJrtstfon Porter
Assistant Administrator

?aste Management Division Directors
Regions I - X
        This  memorandum  is  intended  to  abate  any  uncertainty
   surrounding  the  implications  of the  Department of  Energy's
   (DOE)  final  byproduct  rule  on mixed  waste  regulation at  DOE
   facilities.

        On  May  1,  1987  DOE  published its  final  byproduct rule
   (51 £R 15937,  copy  attached).   In that rule  DOE stipulates
   "that  only the  actual  radionuclides  in DOE waste streams will
   be considered  byproduct  material."   The effect of  this inter-
   pretative  rulemaking  is  that  all  DOE waste streams which either
   contain  a  listed  waste or exhibit a  hazardous  characteristic
   will  be  subject  to  RCRA  regulation.   You should note that  this
   interpretation  is consistent  with the  EPA/Nuclear  Regulatory
   Commission (N'RC)  joint definition of commercial low-level  nixed
   waste  issued earlier  this year.   See OSWER Directive 9432.00-2.

        In  addition, I  would like to update you on the findings  and
   status of  the  Mixed  Energy  Waste  Study (MEWS)  in view of the  final
   byproduct  rule.   As  you  know,  DOE presented  a  proposal to  EPA  for
   excluding  high-level  and transuranic mixed wastes  from RCRA  juris-
   diction.   The  proposed exclusion  was predicated on DOE's contention
   that  their waste  management practices  were equivalent or superior
   to those mandated by  RCRA and required a legal determination  that
   regulatory duplication was  inconsistent.  Accordingly, the MEWS
   task  force was  commissioned in November, 1986  to gather technical
   information  on  the  merits of  DOE's assertion.   You should  note,
   however, that  past  practices  were not  included in the DOE  proposal
   nor were they  reviewed by the task force during subsequent site
   visits to  select  DOE  facilities.
-------
                              - 2  -


     In March of this year,  the MEWS  task  force issued  its  final    ^B
reoort which indicated that  to a large  extent,  DOE management  of
hiah-level and transuranic mixed wastes were equivalent or  superior
to RCRA requirements.  Certain areas  of their waste management
operations, however, such as ground-water  monitoring and chemical
analysis of wastes were clearly deficient.  To  date, no category
of DOE mixed waste has been exempted  from  RCRA  regulation as a
result of the findings of the MEWS task force.

     Thus, all DOE mixed wastes are  subject to  RCRA regulations
independent of the nature of the radioactive component.  Therefore,
Regions which are administering RCRA  programs in unauthorized
States should, in accordance with priorities established in the
RCRA Implementation Plan, be implementing  the program at DOE
facilities.  Secondly, those Regions  where States have been
delegated mixed waste authority should  make it  clear that their
authorization includes all DOE mixed  wastes.  These mixed wastes
may contain high-level, low-level, or transuranic radioactive
constituents.  Third, you should continue  to encourage States to
apply for mixed waste authorization especially in those States
with major DOE facilities.
     Headauarters is committed to providing technical, legal and
policy assistance to the States and Regions in support of efforts
to effect mixed waste regulation at DOE facilities.  Accordingly/
I will keep you apprised of any initiatives taken by either DOE
and/or EPA Headquarters affecting mixed waste regulation as soon
as they develop.  Specific questions concerning mixed wastes
should be directed to Betty Shackleford, OSW on (FTS) 475-9656.

Attachment

cc:  Ken Shuster, OSW
     Chris Grundler, OSWER
     Ray Berube, DOE
i
-------
                                                                                                    15937

Rules  and Regulations                                 "*" R*"w
                                                                        Vol. 52. No. 84

                                                                        Friday, May 1. 1967
                                   DEPARTMENT OF ENERGY

                                   10 CFR Part 962

                                   Radioactive Wuto; Byproduct Material

                                   AOtMCY: Department of Energy.
                                   ACTION: Final rule.

                                   SUMMARY: The Department of Energy
                                   [DOE] today is issuing a final
                                   interpretative rule under section I81p. of
                                   the Atomic Energy Act of 1954 (42 U.S.C.
                                   2011 et seq.; hereinafter "the AEA") for
                                   the purpose of clarifying DOE'S
                                   obligations under the Resource
                                   Conservation and Recovery Act (42
                                   U.S.C. 6901 et seq.; hereinafter "RCRA").
                                   The purpose of this final rule is to
                                   interpret the AEA definition of the term
                                   "byproduct material," set forth in
                                   section lle(l) of that Act (42 U.S.C.
                                   2014(e)(l)]. as it applies to DOE owned
                                   or produced radioactive waste
                                   substances which are also "hazardous
                                   waste" within the meaning of RCRA.
                                   The effect of this rule is that all DOE
                                   radioactive waste which is hazardous
                                   under RCRA will be subject to
                                   regulation under both RCRA and the
                                   AEA. This rule does not affect materials
                                   that are defined as byproduct material
                                   under section lle(2) of the Atomic
                                   Energy Act
                                   CPFtCTtVt DATt June 1.1987.
                                   MM niHTMlH INFONMATKM CONTACT:
                                   Henry K. Carson. Esq.. Assistant
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15938	Federal Register  /  Vol. 52.  No. 84  /  Friday.  May 1. 1987  /  Rules and Regulations
General Counsel for Environment. GC-
11. Department of Energy. 1000
Independence Avenue SW.,
Washington. DC 20585, Telephone (202)
586-6947.
Raymond P. Berube, Acting Director,
  Office of Environmental Guidance and
  Compliance, EH-23. Department of
  Energy, 1000 Independence Avenue
  SW., Washington DC 20585.
  Telephone (202) 58&-5680.
SUPPLEMENTARY INFORMATION:

Background
  RCRA establishes a comprehensive
regulatory scheme, administered by the
Environmental Protection Agency (EPA)
and EPA-authorized States, governing
the generation, transportation,
treatment, storage and disposal of
hazardous waste. Federal agencies are
required by section 6001 of RCRA (42
U.S.C. 6961) to comply with the
requirements of that regulatory scheme
in the same manner, and to the same
extent, as any private person or entity.
Under section 1004 of RCRA (42 U.S.C.
6903), the "hazardous waste" governed
by RCRA is a subset of the statute's
definition of "solid waste." The
definition of "solid waste," however,
expressly excludes "source, special
nuclear, or byproduct material as
defined by the Atomic Energy Act."
Those materials, instead, continue to be
regulated under the AEA either by the
Nuclear Regulatory Commission (NRC)
or by DOE.
  The AEA's definitions of the terms
"source material" and "special nuclear
material" are specific in nature, and
present no particular difficulty of
interpretation. The AEA's definition of
"byproduct material." in contrast.
speaks only generally of "any
radioactive material (except special
nuclear material) yielded in or made
radioactive by exposure to the radiation
incident to the process of producing or
utilizing special nuclear material." AEA
section lle(l). 42 U.S.C. 2014{e)(l). The
lack of specificity in this definition.
coupled with RCRA's exclusion of
byproduct material from its hazardous
waste regulatory scheme, has raised a
question concerning which DOE
radioactive waste streams, if any,
should be considered byproduct
material not subject to regulation under
RCRA.

The Proposed Rule
   On November 1,1985. DOE published
a notice of proposed rulemaking  (50 FR
45736) in which it proposed to adopt an
interpretative rule clarifying RCRA's
applicability to DOE radioactive waste.
Briefly summarized, that proposed rule
would have established a distinction
between "direct process" radioactive
waste (i.e. waste directly yielded in. or
necessary to, the process of producing
and utilizing special nuclear material)
and other radioactive waste less
proximate to the physical process of
producing or utilizing special nuclear
material. Under the proposed rule, direct
process waste, even if it contained
hazardous material, would have been
regarded as byproduct material, and
thus would be regulated exclusively
under the AEA. Any radioactive waste
other than direct process waste, if it
contained hazardous material, would
have been considered "mixed waste"
subject to regulation under both RCRA
and the AEA.
  As DOE noted the Federal Register
preamble to the proposed rule, the
legislative history of the AEA provides
little guidance in interpreting the
statutory definition of byproduct
material, and application of the
definition has not been clarified by
judicial interpretation. Because the plain
words of the definition are keyed to the
process for producing and utilizing
special nuclear material, however, it
seemed that process must be regarded
as a critical factor in determining
whether particular radioactive materials
fell within the definition. Accordingly,
one significant feature of the "direct
process" approach, as discussed in the
preamble to the proposed rule, was its
congeniality with the bare text of the
statutory definition of byproduct
material.
  A major consequence of the "direct
process" approach was the fact that it
would result in the exclusive regulation
of all direct process waste under the
AEA. Just as the legislative history of
the AEA provides little help in
interpreting the statutory definition of
byproduct material, the legislative
history of RCRA is silent on the
intended effect of RCRA's exclusion
from its coverage of source, special
nuclear and byproduct material.
Nevertheless, DOE assumed that that
exclusion was intended by the Congress
to be applied to radioactive wastes in
their real-world configuration. Virtually
all radioactive waste substances are
contained, dissolved or suspended in a
nonradioactive medium from which
their physical separation is
impracticable. Accordingly. DOE noted
in proposing the "direct process"
approach that unless some radioactive
waste streams were considered to be
byproduct material in their entirety,
RCRA's exclusion of byproduct material
might reasonably be perceived  to have
 little effect, because RCRA's application
 to a nuclear waste's nonradioactive
medium would appear to entail at least
the indirect regulation of the
radionuclides dispersed in the medium.
  Such a result, in DOE's view,
presented substantial legal questions.
Previous court decisions had settled the
point that the AEA generally vests in
DOE and the NRC exclusive regulatory
authority over the radiation hazards
associated with source, special nuclear
and byproduct material, and generally
preempts the States from regulating
those materials.1 It had also been held
that when the radiation and
nonradiation hazards of a waste
containing byproduct material are
inseparable, regulatory action under the
AEA preempts the incompatible
exercise of general state nuisance
authority over the waste.2 These
decisions, read  in conjunction with
RCRA's affirmation of state regulation
as an acceptable, indeed a favored,
alternative to EPA regulation, were
viewed by DOE as suggesting that an
appropriate interpretation of byproduct
material would, like the proposed
"direct process" approach, exclude
certain radioactive waste streams, in
their entirety, from regulation under
RCRA.
Development of the Final Rule
   At the time of its publication of the
proposed rule. DOE made available to
the public reports provisionally
identifying which of the waste streams
generated at its facilities would be
considered "direct process waste"
subject only to AEA regulation under
the proposed rule, and which of those
waste streams would be considered
"mixed waste" subject to regulation
under both RCRA and the AEA. DOE
sought and received public comments on
those reports, and on the proposed rule
itself.
   During the period since the proposal
was made, DOE has  had the opportunity
further to review the pertinent legal
authorities, as well as to consider the
comments received, the provisional
waste stream identifications. DOE's
additional operating experience, and
related actions taken by other federal
 agencies. Based on the review, DOE is
 today publishing a final rule that adopts
 a narrower interpretation of byproduct
 material than the "direct process"
 approach that was originally proposed.
 For the reasons set forth below, the final
 rule provides that only the actual
 radionuclides in DOE waste streams
   1 See Northern State* Power Co. v. Minnesota.
 447 F.2d 1143 (8th Cir. 1971). afffd, 405 U.S. 1035
 (197Z). See also Tram v. Colorado Pub. Intend
 Research Group, 426 U.S. 1 (1976).
   1 Brown v. Kerr-McGee Chem. Corp.. 767 F.2d
 1234.1240 (7th Cir. 1985).
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               Federal Register  /  Vol. 52.  No. 84  /  Friday. May  1. 1987  /  Rules and Regulations	15939
will be considered byproduct material.
The nonradioactive components of those
waste streams, under the final rule, will
be subject to regulation under RCRA to
the extent that they contain hazardous
components.
Discussion
  The overriding question raised by the
public comments on the proposed rule
was whether RCRA's exclusion of
source, special nuclear and byproduct
material from regulation under that Act
was intended by the Congress to exempt
entire waste streams, rather than
exempting only the radionuclides
dispersed or suspended in a waste
stream. As discussed above, the
proposed rule woud have treated any
"direct process" waste as byproduct
material in its entirety, even if the waste
contained a nonradioactive chemically
hazardous component that would
otherwise have been subject to
regulation under RCRA. Thus, the
characterization of a waste stream as
"direct process" waste would have
foreclosed the application of RCRA to
that stream irrespective of whether the
associated non-radiological
environmental hazard was significant.
In the opinion of many commenters, this
was a significant disadvantage to the
"direct process" approach. In view of
this concern, some commenters
suggested that DOE instead adopt an
alternative interpretative approach that
would permit the application of each
regulatory regime to the type of hazard
that it was designed to control, i.e. that
would apply the AEA to ensure
protection against the radiological
hazard of this waste, and apply RCRA
to ensure protection against any
associated chemical hazard.
  DOE's operational experience since
the publication of the proposed rule
lends support to the concern expressed
by these commenters. In its efforts
provisionally to apply the "direct
process" approach, DOE found a
number of instances in which otherwise
identical wastes were sometimes found
subject to RCRA. and other times were
found subject only to the AEA, due
solely to the wastes' different proximity
to the physical process of producing and
utilizing special nuclear material. While
distinctions of this type are not entirely
incompatible with the process-oriented
language employed by the  Congress in
the AEA to define byproducts material,
DOE has concluded after further
analysis that the better view of the law
is one that avoids such artificial
distinctions and that affords the greatest
scope to the RCRA regulatory scheme,
consistent with the requirements of the
AEA. See Legal Envtl. Assistance Found
v. Model, 586 F. Supp. 1163 (E.D. Tenn.
1984).
  As noted in the foregoing discussion
and in the preamble to the proposed
rule, the legislative histories of both
RCRA and the AEA provide little
assistance in interpreting either the
meaning of the term byproduc1 material
or the intended effect of RCRA's
exclusion of byproduct material from the
hazardous waste regulatory program.
The House Committee on Interstate and
Foreign Commerce, in reporting its
version of the bill that ultimately was
enacted as RCRA, alluded to a 1973 leak
of radioactive waste from a DOE under-
ground storage tank at Richland,
Washington as an "actual instance [ ] of
damage caused by  current hazardous
waste disposal practices." H.R. Rep. No.
1491,94th Cong., 2d Sess., pt. 1, at 17-19,
reprinted in 1976 U.S. Code Cong. &
Admin. News 6238, 6254-57. This
reference is a less than certain
indication that the Congress viewed
such radioactive waste as "hazardous
waste" subject to RCRA.  Unlike RCRA
as finally enacted, the bill ' which this
House Report accompanied contained
no provision excluding source, special
nuclear and byproduct material, thereby
minimizing the probative value of the
Committee's Richland reference in
construing the statute that was
ultimately enacted. Nevertheless, the
Committee's reference should not be
entirely discounted as evidence that the
Congress in considering RCRA was
concerned with unregulated hazards
presented by radioactive waste, even
though the AEA already provided
sufficient regulatory control over the
radiological hazards associated with
such waste.
  No  court has addressed the specific
question whether the entirety of a
nuclear waste, or only its radioactive
component, is byproduct material.4 The
decision in Brown v. Kerr-McGee Chem.
Corp., supra note 2, clearly holds that
the States cannot employ their general
authority to abate nuisances to regulate
even the nonradiation hazard of a waste
incompatibly with  regulation done under
the AEA where the radiation and
nonradiation hazards are inseparable.
Nothing in that decision,  however, is
incompatible with  concurrent regulation.
  3 H.R. 14496.94th Cong.. 2d Sess. (1976).
  4 Two decision have upheld the authority of the
 NRC'« predeceitor agency, the Atomic Energy
 Commission, to license low level radioactive waste
 as byproduct material Harris County v. United
 States. 292 F.2d 370 (5th Cir. 1961); City of New
 Britain v. Atomic Energy Comm'n. 306 F 2d 845 (D.C
 Cir. 1962). In neither case, however, did the court
 reach the specific question whether the entirety of
 the waste, or only its radioactive component, is
 byproduct matenal.
by the States or EPA. of the
nonradioactive component of a nuclear
waste, subject to paramount
requirements of the AEA.*
  In this context, DOE notes that at the
time the Congress was considering
RCRA, the Supreme Court very recently
had published its decision in Train v.
Colorado Pub. Interest Research Group,
426 U.S. 1 (1976). That case decided
whether the Federal Water Pollution
Control Act. as amended in 1972,
applied to source, special nuclear and
byproduct material discharged into
navigable waters by government-owned
production facilities and commercial
power reactors regulated by the  AEA.
After concluding that the Federal Water
Pollution Control Act, properly
construed, did not authorize EPA or the
States to regulate source,  special nuclear
and byproduct material, the Court
rejected the contention that the Water
Act contemplated joint regulation of
source, special nuclear or byproduct
material effluents. 426 U.S. at 15. The
practical effect of the Court's decision.
however, was a regime of concurrent
regulation, by different authorities, of
effluent streams containing both
radioactive and nonradioactive
components. Specifically, the decision
left EPA and the States free to regulate,
under the Water Act, the  nonradioactive
component of liquid effluents from
nuclear facilities, while reserving to the
NRC and DOE's  predecessor agency all
regulatory authority over the source,
special nuclear and byproduct materials
contained in those same effluent
streams.
  The legislative history of RCRA
contains no mention of the Train
decision. However, the Congress is
presumed to be aware of decisions of
the Supreme Court,* and in fact
employed in RCRA the same AEA
terms, including byproduct material, that
the Court had extracted from the Water
Act's legislative history to emphasize in
its analysis in Train. Thus it is at least
equally logical to infer that the
Congress, in selecting the AEA terms
emphasized in Train, anticipated a
similar result under RCRA as it is to
posit—as did the proposed rule—that
RCRA's exclusion of byproduct material
must have been  intended to exclude in
their entirety some waste streams from
regulation under RCRA.
   In short, while the specific legal
authorities relied upon by DOE in
developing the proposed rule appeared
consistent with the "direct process"
  5 See discussion of RCRA section 1006(a|. U.S.C
 69051 a), infra
  ' Gary v. Curtis. 44 U.S. (3 How.) 236. 240 (16451
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15940	Federal Register / Vol.  52.  No. 84 /  Friday.  May 1. 1987 /  Rules and Regulations
approach, those authorities are equally
consistent with the narrower
interpretation of byproduct material that
was suggested by the majority of the
commenters on the proposed rule. More
importantly. DOE is now persuaded
after farther analysis that the "direct
process" approach does not reflect the
better view of the law.
  RCRA is a remedial statute, and as
such must be liberally construed to
effectuate the remedial purpose for
which it was enacted.7 The intended
comprehensiveness of RCRA's
regulatory scheme is evident from the
Act's legislative history. The principal
sponsor of the legislation in the Senate
emphasized that it represented "a major
commitment of federal assistance to
state and local government efforts to
meet [hazardous and solid waste]
problems in a comprehensive and
effective manner."  • The House
Committee on Interstate and Foreign
Commerce regarded the legislation as
closing the "last remaining loophole" *
in a framework of national
environmental laws that already
included the Clear Air Amendments of
1970. the Federal Water Pollution
Control Act Amendments of 1972. and
the Safe Drinking Water Act.
  Moreover, interpretation of RCRA's
exclusion of byproduct material must
not focus solely on that exclusion, read
in isolation. Instead, the exclusion can
be viewed properly only in the context
of the whole statute, as well as its object
and policy.10 In this connection, it
seems apparent that RCRA was
intended to have some applicability to
materials that were already regulated
under the AEA. Section 1006(a) of
RCRA. 42 U.S.C. 690S(a). specifies that
as to "any activity or substance" subject
to the AEA. RCRA regulation must yield.
but only to the extent of "inconsistent"
requirements stemming from the AEA.
The archetypal "substances" that can
fairly be described as "subject to" the
AEA are substances  containing source,
special nuclear and byproduct material.
to which the AEA expressly is directed.
Thus the language of section 1006{a)
seems generally to contemplate
complementary regulation under both
statutes of substances that under prior
law might have been regulated
exclusively by the AEA.
  1 See. e.g.. WeiUngnouse Elcc. Corp. «. Pacific-
 (•us ft Elec. Co. 326 F-2d 575 (9th Cir. 1964).
  • 122 Cong. Rec. 21401 (1976) (remarks of Sen
 Randolph).
  • II R. Rep. No. 94-1491.94th Cnny.. 2d Sets., pt. 1.
 a! 4. reprinted in 1970 U.S. Code Cong & Ad. Npwn
 B238. 6241.
  10 Sen. e.g.. Richard* v. United Sidirs. 36P U.S. 1.
 11 119621
  Viewed in this light. RCRA's
definitional exclusion of source, special
nuclear and byproduct material assumes
a narrower significance than was
suggested in the proposed rule. Instead
of referring to any waste stream in its
entirety, the exclusion appears directed
only to the readioactive component of a
nuclear waste. The result, however, is a
more harmonious view of the statute as
a whole. Read together. DOE believes
that the definitional exclusion and the
language of section 1006(a) are correctly
understood to provide for the regulation
under RCRA of all hazardous waste.
including waste that is also radioactive.
RCRA does not apply  to the radioactive
component of such a waste, however, if
it is source, special nuclear or byproduct
material. Instead, the AEA applies to
that radioactive component. Finally,  if
the application of both regulatory
regimes proves conflicting in specific
instances. RCRA yields to the AEA.
  In addition to construing the whole of
RCRA in harmony, this interpretation
results in according both RCRA and  the
AEA the greatest capacity to regulate
effectively the special type of hazard
that each statute was  designed to
control. Since the two statutes are not in
irreconcilable conflict, but are capable
of co-existence, they should be
interpreted such that the operation and
objectives of each are facilitated. See
Radzanower v. Touche Ross & Co.. 426
U.S. 148,155 (1976). However, in issuing
today's final rule, DOE emphasizes the
importance of section 1006(a) in
resolving any particular inconsistencies
that may occur between the
requirements of RCRA and those of  the
AEA. DOE is the federal agency
responsible for authoritatively
construing the requirements of the AEA.
as that Act applies  to DOE activities.
While DOE does not anticipate that
adoption of today's final rule will lead to
frequent cases of "inconsistency, "
section 1006(a) provides critical
assurance that the implementation of
the final rule will present no impediment
to the maintenance of protection from
radiological hazards as well as DOE's
accomplishment of its other statutory
responsibilities  under the AEA.
   A final consideration in adopting
 today's final rule is the rule's
consistency with the legal position
 adopted by EPA and  the NRC in
 resolving questions concerning RCRA's
 application at NRC-licensed commercial
 nuclear facilities. In a recent guidance
 document developed jointly by EPA and
 the NRC," the two agencies stated that
   1' "Guidance on the Definition and Identification
 of Commercial Mixed Low Level Radioactive and
 Hnzardoui Wast*." fan. S. 1967
for commercial low-level radioactive
waste containing a hazardous
component they will regard only the
actual radionuclides in the waste as
being exempt from RCRA. Today's final
rule adopts the same approach for all
DOE radioactive and chemically
hazardous waste.
  Accordingly, for purposes of RCRA.
DOE interprets the term byproduct
material to refer only to the radioactive
component of a nuclear waste. The
nonradioactive chemically hazardous
component of the waste will be subject
to regulation under RCRA.

Procedural Matters
A. Executive Order 12291

  This rule has been reviewed in
accordance with Executive Order 12291.
The rule is not classified as a major rule
because it does not meet the criteria for
major rules established by that Order.

B. National Environmental Policy Act
  This rule is an interpretative rule
intended only to clarify the meaning of a
statutory definition. Issuance of the rule
will have no environmental impact.

C. Regulatory Flexibility Act
Certification
  The rule will not have a significant
impact on a substantial number of small
entities.

D. Paperwork Reduction Act of 1980
  There are no information collection
requirements in the rule.

List of Subjects in 10 CFR Part 962
  Nuclear materials. Byproduct
material.
  Issued in Washington. DC April 27.1987.
 |. Michael Farrell.
 General Counsel.
   In consideration of the foregoing. Part
 962 is added to 10 CFR Chapter III. to
 read as follows:

 PART 962—BYPRODUCT MATERIAL

 Sec.
 962.1  Scope.
 962.2  Purpose.
 962.3  Byproduct material.
   Authority: The Atomic Energy Act of 1954
 (42 U.S.C. 2011 et seq.): Energy
 Reorganization Act of 1974 (42 U.S.C. 5801 et
 seq.\. Department of Energy Organization Act
 (42 U.S.C. 7101 et seq.); Nuclear Waste Policy
 Act (Pub. L. 97-425. 96 Stat. 2201).

 § 962.1  Scop*.
   This Part applies only to radioactive
 waste substances which are owned or
 produced by the Department of Energy
 at facilities owned or operated by or for
-------
              Federal Register / Vol. 52. No.  84 / Friday. May  1. 1987 / Rules and Regulations        15941
the Department of Energy under the
Atomic Energy Act of 1954 (42 U.S.C.
2011 et seq). This Part does not apply to
substances which are not owned or
produced by the Department of Energy.

§962J PurpoM.
  The purpose of this Part is to clarify
the meaning of the term "byproduct
material" under section lle(l) of the
Atomic Energy Act of 1954 (42 U.S.C.
2014(e)(l)) for use only in determining
the Department of Energy's obligations
under the Resource Conservation and
Recovery Act (42 U.S.C. 6901 etseq.)
with regard to radioactive waste
substances owned or produced by the
Department of Energy pursuant to the
exercise of its responsibilities under the
Atomic Energy Act of 1954. This Part
does not affect materials defined as
byproduct material under section lle(2)
of the Atomic Energy Act of 1954 (42
U.S.C. 2014(e)(2)).

§ 962.3 Byproduct material
  (a) For purposes of this Part, the term
"byproduct material" means any
radioactive material (except special
nuclear material) yielded in or made
radioactive by exposure to the radiation
incident to the process of producing or
utilizing special nuclear material.
  (b) For purposes of determining the
applicability of the Resource
Conservation and Recovery Act (42
U.S.C. 6901 et seq.) to any radioactive
waste substance owned or produced by
the Department of Energy pursuant to
the exercise of its atomic energy
research, development, testing and
production responsibilities under the
Atomic Energy Act of 1954 (42 U.S.C.
2011 etseq.), the words "any radioactive
material," as used in subsection (a).
refer only  to the actual radionuclides
dispersed  or suspended in the waste
substance. The nonradioactive
hazardous component of the waste
substance will be subject to regulation
under the Resource Conservation and
Recovery Act.
(FR Doc. 67-9885 Filed 4-30-87; 8:45 am]
BILLING CODE *4SO-Ot-M
FEDERAL RESERVE SYSTEM

12 CFR Parts 207,220, 221 and 224

Regulations G, T, U and X; Securities
Credit Transactions; List of Marginable
OTC Stocks

AGENCY: Board of Governors of the
Federal Reserve System.
ACTION: Final rule: determination of
applicability of regulations.
SUMMARY: The List of Marginable OTC
Stocks is comprised of stocks traded
over-the-counter (OTC) that have been
determined by the Board of Governors
of the Federal Reserve System to be
subject to  the margin requirements
under certain Federal Reserve
regulations. The List is published four
times a year by the Board as a guide for
lenders subject to the regulations and
the general public. This document sets
forth additions to or deletions from the
previously published List effective
February 10,1987 and will serve to give
notice to the public about the changed
status of certain stocks.
EFFECTIVE DATE: May 12. 1987.
FOR FURTHER INFORMATION CONTACT
Peggy Wolffrum, Research Assistant,
Division of Banking Supervision and
Regulation, (202)-452-2781. For the
hearing impaired only, Earnestine Hill or
Dorothea Thompson,
Telecommunications Device for the Deaf
(TDD) (202M52-3544. Board of
Governors of the Federal Reserve
System, Washington. DC 20551.
SUPPLEMENTARY INFORMATION: Set forth
below are stocks representing additions
to or deletions from the Board's List of
Marginable OTC Stocks. A copy of the
complete List incorporating these
additions and deletions is available
from the Federal Reserve Banks. This
List supersedes the last complete List
which was effective February 10,1987.
(Additions and deletions for that List
were published at 52 FR  3217, February
3,1987). The current List includes those
stocks that meet the criteria specified by
the Board  of Governors in Regulations
G, T, U and X (12 CFR Parts 207, 220. 221
and 224, respectively). These stocks
have the degree of national investor
interest, the depth and breadth of
market, and the availability of
information respecting the stock and Its
issuer to warrant regulation in the same
fashion as exchange-traded securities.
The List also includes any stock
designated under an SEC rule as
qualified for trading in the national
market system (NMS Security).
Additional OTC stocks may be
designated as NMS securities in the
interim between the Board's quarterly
publications. They will become
automatically marginable at broker-
dealers upon the effective date of their
NMS designation. The names of these
stocks are available at the Board and
the Securities and Exchange
Commission and will be incorporated
into the Board's next quarterly List.
  The requirements of 5  U.S.C. 553 with
respect to notice and public
participation were not followed in
connection with the issuance of this
amendment due to the objective
character of the criteria for inclusion
and continued inclusion on the List
specified in 12 CFR 207.6 (a) and (b).
220.17 (a) and (b). and 221.7 (a) and (b).
No additional useful information would
be gained by public participation. The
full requirements of 5 U.S.C. section 553
with respect to deferred effective date
have not been followed in connection
with the issuance of this amendment
because the Board finds that it is in the
public interest to facilitate investment
and credit decisions based in whole or
in part upon the composition of this List
as soon as possible. The Board has
responded to  a request  by the public and
allowed a two-week delay before the
List is effective.

list of Subjects
12 CFR Part 207
  Banks. Banking, Credit. Federal
Reserve System. Margin. Margin
requirements. National Market  System
(NMS Security), Reporting and
recordkeeping requirements. Securities.

12 CFR Part 220
  Banks. Banking, Brokers, Credit,
Federal Reserve System. Margin, Margin
requirements, Investments, National
Market System (NMS Security),
Reporting and recordkeeping
requirements. Securities.

12 CFR Part 221
  Banks, Banking, Credit, Federal
Reserve System, Margin, Margin
requirements. Securities, National
Market System (NMS Security),
Reporting and recordkeeping
requirements.

12 CFR Part 224
   Banks. Banking. Borrowers. Credit.
Federal Reserve System, Margin. Margin
requirements, Reporting and
recordkeeping requirements. Securities.
   Accordingly, pursuant to the authority
of sections 7 and 23 of the Securities
Exchange Act of 1934, as amended (15
U.S.C. 78g and 78w), and in accordance
with 12 CFR 207.2(k) and 207.6(c)
(Regulation G), 12 CFR 220.2(s) and
220.17(c) (Regulation T), and 12 CFR
221.2(j) and 221.7(c) (Regulation U).
there is set forth below a listing of
deletions from and additions to the
Board's List:
Deletions From List
Stocks  Removed for Failing Continued
Listing Requirements
American Aggregates Corporation
   No par common
Bio-Medicus. Inc.
   Warrants (expire 08-31-88)
-------
                  Federal Register /  Vol. 53. No.  185 / Friday. September 23. 1988 / Notices
                                                                    37045
Chittenden Cos., VT. Due: April IS. 1989,
Contact: Ralph Abele. [r. («17) 965-6100.
  PubUihed FR 11-13-87—Review
period extended.
  E1S No. 880152. Draft. USA, PRO.
NAT. Nationwide Biological Defense
Research Program. Continuation.
Implementation. Our October 4,1988.
Contact Charles Daaey (301) 663-2732.
Published FR 5-20-S8-fteview period
extended.
  E1S No. 880287. DSuppl. APS. OR. ID.
Wallowa Whitmaa National Fomt
Land and Resources Management Plan,
Additional Alternative, Implementation.
Baker. Union. Wallowa. Grant Malheur
and Umatilla Counties. OR  and Adams,
Nez Perce and Idaho Counties, ID. Due:
December 12.1988, Contact: Bruce
McMillan (503) 523-6319.
  Published FR 9 9-88— Review period
extended, incorrect date published in 9-
9-88 FR.
  Dated: September 20.1908.
Wuu*»D.Dtckenon.
Deputy Of rector. Office of Federal Activities.
[FR Doc. 88-21882 Filed 9-22-88; 8:45 «m|
[FRL-34S2-8]

Ctartflceaon of Interim Status
OuaMcaoon Requirementa for the
Hamdoua Components of
Radtatctnra Mixed Watt*

AQfUCY: Environmental Protection
Agency (EPA).
ACTION: Clarification notice.
        r: The Environmental Protection
Agency (EPA) is today publishing a
notice which clarifies requirements for
facilities that treat, store or dispose of
radioactive mixed waste to obtain
interim status pursuant to Subtitle C of
the Resource Conservation and
Recovery Act (RCRA). Radioactive
mixed wastes are wastes that contain
both hazardous waste subject to RCRA
and radioctive waste subject to the
Atomic Energy Act (AEA). Additionally.
this notice addresses "notification"
requirements for handlers of radioactive
mixed waste.
OATB Owners and operator* of facilities
treating, storing, or disposing of
radioactive mixed waste in States not
authorized by September 23.1988 to
administer the Federal hazardous waste
program in lieu of EPA must submit a
RCRA Part A permit application to EPA
by March 23,1989 to qualify for interim
status. Facilities treating, storing or
disposing of radioactive mixed waste in
States that received aurhorizatioin by
September 23.1988 are not subject to
RCRA regulations until the State revises
its existing authorized hazardous waste
program to include authority to regulate
radioactive mixed waste. Owners and
operators must then comply with
applicable State requirements regarding
interim status.
  To date, four States (i.e.. Colorado.
South Carolina, Tennessee, and
Washington) have been authorized to
regulate radioactive mixed wastes. In
those States, owners and operators must
comply with the applicable State law
governing interim status for radioactive
mixed waste facilities if it is  more
stringent than the otherwise  applicable
provisions of this notice.
FOR FUMTMEA INFORMATION CONTACT:
Betty Shackleford. Office of Solid Waste
(WH-563B), U.S. Environmental
Protection Agency, 401 M Street SW,
Washington. DC 20460. (202) 382-2221.
SUPPUUMNTAMY IN»OMS«AT>OM:

A. Background
  In 1976. the Resource Conservation
and Recovery Act (RCRA) as amended,
was passed to provide for development
and implementation of a comprehensive
program to protect human health and
the environment from the improper
management of hazardous waste.
Specifically. Subtitle C of RCRA creates
a managment system intended to ensure
that hazardous waste is safety handled
from the point of generation  to final
disposal. To acomplish this.  Subtitle C
requires the Agency first to define and
characterize hazardous waste. Second, a
hazardous waste manifest system was
implemented to track the movement of
hazardous waste from the point of
generation to ultimate disposal.
Hazardous waste generators and
transporters must employ appropriate
management practices and procedures
to ensure the effective operation of the
manifest system. Third, owners and
operators of treatment, storage or
disposal facilities (TSDFs) must comply
with standards the Agency established
under section 3004 of RCRA that "may
be necesary to protect human health
and the environment." These standards
are implemented exclusively through
permits issued to TSDF owners and
operators by the Agency or authorized
States. Until final permits are issued.
treatment, storage, and disposal
facilities must comply with the interim
status regulations found in 40 CFR Part
286.  which were promulgatd mostly on
May 19,1980.
   Under RCRA interim status, the owner
or operator of a TSDF may operate
without a final permit if: (1)  The facility
existed on November 19,1960 (or
existed on the effective date of statutory
or regulatory changes under RCRA that
render lae facility subject to the
requirements to have a permit under
section 3006); (2) the owner or operator
complies with the notification
requirements of section 3010 of RCRA:
and (3) the owner or operator submits a
RCRA Part A permit application (40 CFR
270.70). Interim status is retained until
the Agency or authorized SUta makes a
formal decision to issue or deny the final
TSDF permit.
  As provided by section UOSJb) of
RCRA, States may apply to EPA for
authorization  to administer and enforce
a hazardous waste program pursuant to
Subtitle C of RCRA. Authorized State
programs are earned out in lieu of EPA,
To date, forty-four States have received
final authorization to iilssJnssisr the
basic  hazardous waste program Of
these  forty-four Stales, onry few (i.e,
Colorado. South Carolina. Tennessee.
and Washington) have received the
additional authorization needed to
regulate radioactive mixed waste. In
these States, which had base program
authorization by July 3.1080, to* State's
regulations on interim status {or anxad
waste faculties control.
   The otiwr forty States with baa*
program authorization must still revise
their existing programs to include
authority to regulate the hazardous
component of radioactive nixed waste.
In the rwerve States and trust territories
(La. Alaska. American Samoa.
California. Connecticut, Hawaii, Idaho,
Iowa, Marianna Islands, Ohio. Puerto
Rico. Virgin Islands, and Wyoming)
unauthorized to carry out their own
RCRA hazardous waste program.
radioactive mixed waste is subject to
Federal hazardous  waste regulations
administered by EPA.
   Histoncalry, substantial confusion
and uncertainty have surrounded the
applicability of RCRA to hazardous
wastes containing certain radioactive
materials (i.e.. source, special nuclear or
byproduct material as defined by the
Atomic Energy Act of 1954, as amended
(68 Stat. 923)). This uncertainty
stemmed, to a large extent from the
exclusion of source, special nuclear and
byproduct material from the definition
of solid waste under section 1004(27) of
RCRA.
   To clarify State responsibilities with
regard to the hazadous components of
radioactive mixed  waste, the EPA
published a notice  in the Federal
Register of luly 3.1986 (51 FR 24504).
That notice recognized that States had
 not previously been authorised under
 RCRA to regulate radioactive mixed
 waste because of continuing debate
 surrounding the extent of RCRA
 jurisdiction over this category of  waste.
-------
17046
Fedml  Ragbter / Vol. S3.  No. 185 / Friday. September 23. 1988 / Notices
Through that notice. EPA clarified it*
position that the hazardous
components) of mixed waste was
subject to RCRA regulation.
Accordingly. States were required to
revise their existing hazardous waste
programs and apply for RCRA
authorization to regulate radioactive
mixed waste in accordance with the
deadlines set forth in the July 3.1988
notice. Similarly, such authority must
now be sought by States initially
submitting an application for RCRA
final authorization.
  Since publication of the July 3.1988
notice, the Agency promulgated new
deadlines for State hazardous waste
program modifications (the "Ouster
Rule." September 22.1988.51 PR 33712).
This subsequent rulemaking established
annual deadlines for States to submit
program changes in groups or clusters
when seeking Agency authorization. For
State program change* occurring after
June 1984. the groups or clusters were to
correspond to successive twelve-month
periods beginning each July 1 and
ending June 30 of the following year. In
accordance with the schedule
established by the Cluster Rule. States
which applied for final authorization
before July 3.1988 were required to
revise existing hazardous waste
programs to include the authority to
regulate the hazardous component of
radioactive mixed watte by July 1.1988
(or by July 1.1989 if a statutory
amendment is necessary). State*
Initially seeking final authorization after
July 3,1987 were required to seek
authorization for radioactive mixed
waste as part of their application for
final authorization. Any State applying
for HSWA corrective action must
concurrently seek authority for
radioactive mixed waste. The July 3.
1986 notice addressing RCRA's
applicability to TSDFs handling
radioactive mixed waste did not
however, address the issue of interim
status.
B, Clarification of the Definition ot
Byproduct Material
  At the same time that EPA's rules
governing State program* for
radioactive mixed waste were being
developed and implemented.
controversy arose over which wastes
are mixed and therefore subject to
RCRA and which wastes are pure
"byproduct material" and therefore
exempt from RCRA regulations as
provided by section 1004(27). To
delineate RCRA applicability to their
byproduct material waste streams, the
Department of Energy (DOE) Issued an
interpretive rule on May 1.1987 (52 FR
1S937). In  that rule DOE stated that the
                     term byproduct material as it applies to
                     DOE-owned wastes (i.e.. any
                     radioactive material except special
                     nuclear material yielded in or made
                     radioactive by exposure to the radiation
                     incident to the process of producing or
                     utilizing special nuclear material) refers
                     only to the actual radionuclides
                     dispersed or suspended in the waste
                     substance. That interpretation is
                     consistent with the position issued on
                     January 8,1987 by the EPA and the
                     Nuclear Regulatory Commission (NRC)
                     in a document entitled "Guidance on the
                     Definition and Identification of
                     Commercial Mixed Low-Level
                     Radioactive and Hazardous Waste and
                     Answers to Anticipated Questions."
                     Therefore, as  DOE clarified in its May 1.
                     1987 byproduct rule, any matrix
                     containing a RCRA hazardous waste as
                     defined in 40 CFR 281 and a radioactive
                     waste subject to the AEA is a
                     radioactive mixed waste. Such wastes
                     are subject to RCRA hazardous waste
                     regulations regardless of further
                     subclassification of the radioactive
                     waste constituent as high-level low-
                     level tnnsuranic. etc.

                     C Interim Status

                       As discussed previously. RCRA
                     section 300S(a) prohibit* treatment
                     storage, or disposal of hazardous waste
                     without a permit after November 19.
                     1980. However, section 3005(e) of RCRA
                     provides that facilities in existence on
                     November 19, I960 or on the date of
                     statutory or regulatory changes which
                     subject the facility to RCRA
                     requirements, may continue treatment
                     storage, or disposal under "interim
                     status" pending a final decision on its
                     permit application.1 To qualify for
                     interim status under section 3005(e), the
                     owner or operator of a TSDF in
                     existence must submit a Part A permit
                     application and meet applicable
                     notification requirements under section
                     3010 of RCRA.
                        EPA has become aware that many
                     TSDFs handling radioactive mixed
                     waste, both in authorized and
                     unauthorized States (EPA-administered
                     hazardous waste programs), have been
                      substantially confused about the
                      regulatory status of their particular mix
                      of hazardous waste. Further, these
                      owners and operators are uncertain
                      about how to qualify for interim status if
                        > However, if t facility haa previoualy had It*
                      Interim Menu tenunaMd. the facility i» barred by
                      statute from qualifying; for interim tutu* for • newly
                      titled waiw (RCRA MCOOII 3008(«H1)). If only
                      certain unit* tt ttw facility ha»e previoualy had
                      interim Main* tarmmaied. than the facility may
                      operate newiy-nfulated unilt under interim italua
                      (ice 40 CFR 270.72).
they are handling radioactive mixedv
waste.
  The July 3.1986 notice addressing
RCRA's applicability to TSDFs handling
radioactive mixed waste did not address
the issue of interim status. Given that
omission and subsequent definitional
clarifications on which radioactive
waste streams are subject to RCRA
regulation. EPA has determined that
substantial confusion about interim
status requirements existed. The
primary purpose of this notice, therefore.
is to clarify RCRA interim status
requirements with respect to TSDFs
managing radioactive mixed waste. The
requirements are discussed below.

1. Requirement That Facilitiet Be "in
Existence"

  Interim status provides temporary
authorization to continue hazardous
waste management activities at
facilities engaging in such activities at
the time that they first become subject
to RCRA regulation. Without interim
status, the activities would have to
cease until a permit application was
filed and reviewed and final permit
issued.
   One of the conditions for qualifying
for interim status under section 3005(e)
is that the facility be "in existence"
either on November 19,1980 or on the
date of the regulatory or statutory
change which first subjects the facility
to RCRA permitting requirements. Under
EPA regulations at 40 CFR 280.10 and
270.2. to be "hi existence" (i.e_ to be an
existing hazardous waste management
facility or existing facility) means that
the facility is either operating or
construction of such a facility has
 commenced on the relevant date.
   As applied to facilities handling
radioactive mixed waste in States
 unauthorized to implement a hazardous
 waste program (i.e.. without base
 program authorization) as of the date of
 this notice.  EPA believes that facilities
 in operation or under construction a*
 radioactive mixed waste treatment
 storage, or disposal facilities on July 3.
 1986 may qualify for interim status
 under section 3005(e)(l)(A)(il) of RCRA.
 The Agency interprets this provision as
 applying to such facilities in existence
 on July 3.1988 because the July 3,1986
 notice was EPA's first official
 pronouncement to the general public
 that RCRA permitting requirement* an
 applicable to radioactive mixed waste.
 In view of the level of confusion
 surrounding regulation of radioactive
 mixed waste prior to that time. EPA wi
  treat the July 3.1988 notice as the
  relevant regulatory change for
  establishing that facilities in existence
-------
                  Federal  Register / VoL 53. Na  185 / Friday. September 23.  1968 / Notice*
                                                                      17M7
on that date nay qualify for interim
status if other applicable requirement*
are met.
  Facilities treating, storing, or
disposing of radioactive mixed waste
but not other hazardous waste in a State
with base program authorization are not
subject to RCRA regulation until the
State program is revised and authorized
to issue RCRA permits for radioactive
mixed waste. The effective date of the
State's receipt of radioactive mixed
waste regulatory authorization from
EPA will therefore be the regulatory
change that subject* these TSDFs to
RCRA permitting requirements. Any
facility treating, storing, or disposing of
radioactive mixed waste, or any such
facility at which construction
commenced by the effective date of
authorization for the State's radioactive
mixed waste program revision may
qualify for interim stains if the other
requirements described below are met
However, owners and operators of
TSDFs in authorized States are subject
to ail applicable State laws. A State can
establish its own date for qualifying for
interim status but, in order to be no let*
stringent than the Federal program, that
date may not be after the effective date
of EPA's authorization to the State to
regulate radioactive mixed waste.
  Some facilities in States with base
program authorization as of July 3,1988
may already have interim status under
RCRA because they handle other RCRA
hazardous wastes. These fatalities
should submit a revised Part A permit
application reflecting their radioactive
mixed waste activities within six
month* of the State's receipt of
authorization for radioactive mixed
waste.

2. Requirements to File a Permit
Application
  To qualify for interim status under
RCRA section 3005(e) (1). the owner or
operator of an "existing" facility must
submit a Part A permit application.
Under 40 CFR 270.10(e). existing
facilities in unauthorized States mast
submit Part A of their permit application
no later than six months after the date
of "pobficanon  or regulations'* which
first require them to comply with
technical standards, or thirty days after
they first become subject to the
technical standards, whichever is first.
Although the July 3,1986 notice clarified
RCRA jurisdiction over radioactive
mixed waste, it specifically addressed
only the issue of State authorization.
Application of the time periods specified
irv40 CFR 270.10(«) to facilities located
in unauthorized States was not
addressed. Furthermore, the July 3.1986
notice was technically not a regulation.
which is the trigger for 1270.10(a) in
normal cuxuoutance*. A* a result.
owners aad operators in unauthorised
States could legitimately have been
confused as to whether (and when) they
were required to submit a Part A permit
application. Under I 27010feM2). EPA
finds that the confusion is substantial
and is attributable primarily to (1)
ambiguities surrounding the 40 CFR
parts 260-266 regulatory status of mixed
waste. 12) the narrow scope of the July 3,
19b6 nonce and (3) uncertainty regarding
DOE's final definition of byproduct
material which had direct bearing on
RCRA applicability to Federally-owned
radioactive mixed wastes and indirect
bearing on  commercial radioactive
mixed wastes.
  EPA. therefore,  is exercising its
authority today nnder f 270.1 
-------
37048            Federal Renter / Vol. 53. No.  185 / Friday. September 23. 1966 / Notices
information would be fragmented.
Moreover, the Agency hat been aware
of the magnitude of the potential
radioactive mixed watte universe for
some time since each NRC and NRC
Agreement State lincensee is a potential
handler of radioactive mixed waste.
Thus, no further notification of EPA
under { 270.70(a)(l) is required in order
for facilities treating, storing or
disposing of mixed waste to qualify for
interim status. However, TSDF owners
and operators, like generators and
transporters of radioactive mixed waste.
must obtain an EPA Identification
Number in accordance with the
procedures set forth in 40 CFR 265.11 if
they do not already have one. The
Identification Number may be obtained
by completing EPA Notification Form
8700-12 and submitting it to the EPA
Regional Office  serving the area where
the hazardous waste activity is located.

0. Joint Regulation of Radioactive
Mixed Waste
  As stated previously, a single
radioactive mixed waste stream is
subject to regulation by two separate
Federal agencies (i.e., EPA and NRC. or
EPA and DOE).  This dual regulatory
system requires handlers of waste
formerly regulated exclusively by NRC
or DOE to also comply with RCRA
regulations for hazardous  waste
management EPA is committed to
minimizing the impact of RCRA
regulations by developing a strategy for
joint regulation  of radioactive mixed
wastes that will effect program
implementation in the least burdensome
manner practicable.
  One area of the radioactive mixed
waste regulatory process which may
lend itself to streamlining occurs when
regulatory requirements for hazardous
and radioactive waste management are
duplicative. When this occurs.
compliance with regulations governing
radioactive waste management may
accomplish a level of environmental
protection that  may be commensurate
with that required under RCRA for
hazardous waste management or vice
versa. In such instances. EPA will
accept, to the extent possible.
information already submitted to the
NRC when processing the RCRA permit
Moreover. EPA and NRC  are assessing
 the feasibility of developing a joint
permitting/licensing guidance that will
 address these concerns. Suggestions
 from the regulated community regarding
 duplicative requirements and
 simplification of the licensing/permitting
 process are welcome. Comments should
 be specific and should document how
 equivalent protection of human health
 and the environment from hazardous
waste is achieved. The Agency urges
States authorized to regulate radioactive
mixed waste to adopt a comparable
practice when implementing its
hazardous waste program.

E. Consistency with the Atomic Energy
Act
  Publication of the clarification notice
addressing RCRA applicability to
radioactive mixed waste precipitated a
variety of concerns from the regulated
community, most of which reflected
confusion about the RCRA program.
However, two issues were commonly
raised, namely, (1) the appropriateness
of RCRA hazardous waste regulations
for managing waste containing
radioactive components and. (2)
compliance with RCRA would result in
violation of a basic tenet of radioactive
waste management, that of keeping
radiation exposures as low as
reasonably achievable (ALARA).
  These concerns prompted the EPA
and the NRC to jointly review their
respective regulations in an effort to
delineate the extent of inconsistencies
between EPA's hazardous waste and
NRC's radioactive waste management
requirements. No inconsistencies were
identified as a result of this comparison
although RCRA was more prescriptive
in some instances and differences in
stringency were observed. Differing or
more stringent regulations do not
necessarily constitute inconsistent
requirements. For example, the
comparison of container management
regulations (See 10 CFR Parts 01 and 71
and 40 CFR Part 264, Subpart 1} revealed
that they covered different aspects of
container management NRC regulations
provide requirements for packaging and
placement for land disposal (including
the use of fill and liquid-absorbent
materials) (See 10 CFR 61.51 and 10 CFR
40-44) while EPA regulations provide
prescriptive provisions for the design.
use. and inspection of containers at
storage facilities and describe how spills
 from storage areas are to be mitigated.
 Both agencies have regulations on
 packaging and waste transport. Here.
 the regulatory requirements were found
 to be complementary rather than
 conflicting.
   Although NRC and EPA waste
 management regulations differ in
 stringency and scope, the technical
 requirements were not found to be
 inconsistent. Section 1006(a) of RCRA
 precludes any solid or hazardous waste
 regulation by EPA or a State that is
 "inconsistent" with the requirements of
 the AEA. In such instances, the AEA
 would take precedence and the
 inconsistent RCRA requirement would
 be inapplicable.
  EPA recognizes that implementation
of the dual regulatory program for
radioactive mixed waste management
might result in instances where
compliance with both sets of regulations
is not only infeasible but undesirable.
Therefore. EPA urges the regulated
community to bring to our attention all
cases of actual inconsistency which may
form the basis for future rulemaking
and/or technical or policy guidance.
  Dated September 18. 1988.
Administrator. Environmental Protection
Agency.
(fH Doc. 48-21778 Filed 9-22-38; 8:45 am|
[OPTS-C1714; FFIU34S2-ff]

Toxic and Hazardous Substance*:
Certain Chemicals Prsmsnuf acture
Notices

AOCMCV: Environmental Protection
Agency (EPA).
ACTION: Notice.	

IUSMUHT! Section 5(a)(l) of the Toxic
Substances. Control Act (TSCA)
requires any person who intends to
manufacture or import a new chemcial
substance to submit a premanufacture
notice (PMN) to EPA at least 90 days
before manufacture or import
commences. Statutory requirements for
section 5(a)(l) premanufacture notices
are discussed in the final rule published
in the Federal Register of May 13,1983
 (48 FR 21722). This notice announces
 receipt of forty-eight such PMNs and
 provides a summary of each.
 DATES: Close of Review Periods:
 P 88-1878, 88-1879. 88-1880, November
   22,1988.
 P 88-1881. 88-1882. November 23.1988.
 P 88-1883. 88-1884, 88-1885. 88-1886, 88-
   1887. 88-1888. 88-1889. 88-1890. 88-
   1891. 88-1892. 88-1893. 88-1894. 88-
   1895. 88-1896. November 26.1988.
 P 88-1897. 88-1898. 88-1899. 88-1900. 88-
   1901. 88-1902, 88-1903. 88-1904. 88-
   1905, 88-1906. 88-1907. 88-1908. 88-
   1909. 88-1910, 88-1911. November 27.
   1988.
 P 88-1912. 88-1913. 88-1914, November
    28,1988.
 P 88-1915, 88-1916, 88-1917, 88-1918, 88-
    1919. 88-1920. 88-1921. 88-1922. 88-
    1923. 88-1924.88-1925. November 29.
    1988.
 Written comments by:
 P 88-1878. 88-1879. 88-1880. October 23.
    1988.
 P 88-1881. 88-1882. October 24.1988.
 P 88-1883. 88-1884. 88-1885.
-------
      5         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

     /                    .VASHINGTON, D C. 20460
MEMORANDUM
                                                  SOLID »VASTE

                            JUL 3 0 1987
SUBJECT:  State Pro -ram Advisory #2 -
          RCRA Authorization to Regulate Mixed Wastes
FROM:     Bruce Weddle, Director
          Permits and State Programs Division
          Office of Solid Waste

TO:       RCRA Branch Chiefs
          Regions I - X
     The purpose of State Program Advisory  (SPA)  12 is fourfold.
One, it delineates timeframes by which States .Tiust obtain mixed
waste authorization.  Two, it provides a synopsis of the informa-
tion needed to demonstrate equivalence with the Federal program
in order to obtain mixed waste authorization.  Three, it presents
information about the availability of interim status for handlers
of mixed waste.  And four, the SPA presents the Agency's position
on inconsistencies as defined by Section 1006 of  RCRA.


BACKGROUND

     On July 3, 1986, EPA published a notice in the Federal
Register (see Attachment 1) announcing that in order to ootain
and maintain authorization to administer and enforce a RCRA
Subtitle C hazardous waste program, States must apply for
authorization to regulata the hazardous components of mixed
waste as hazardous waste.  Mixed waste is defined as waste that
satisfies the definition of radioactive waste subject to the
Atomic Energy Act (AEA) and contains hazardous waste that
either (1)  is listed as a hazardous waste in Subpart D of
40 CFR Part 261 or (2) causes the waste to exhibit any of the
hazardous waste characteristics identified  in Subpart C of 40
CFR Part 261.  The hazardous component of mixed waste is
regulated by RCRA.  Conversely, the radioactive component of
mixed waste is regulated by either the Nuclear Regulatory
Commission (NRC) or the Department of Energy (DOE).
-------
     In addition,  DOE issued an interpretative  rule  on May 1,  13a7_    ^^
to clarify the definition of "byproduct  material"  as it apciiea  to
DOE-owned wastes.   The final notice stipulated  "that only  the
actual radionuclides in DOE waste streams  will  be  considered
byproduct material."  Thus,  a hazardous  waste will always  be
subject to RCRA regulation even if it is contained in a mixture
that includes radionuclides subject to the AEA.  Clarification
of the implications of the byproduct rule  was previously transmit-
ted to the Regions (see Attachment 2).


MIXED WASTE AUTHORIZATION DEADLINES

     States which received final authorization  prior to publi-
cation of the July 3, 1986 FR notice must  revise their programs
by July 1, 1988 (or July 1,  1989 if a State statutory amendment
is required) to regulate the hazardous components  of mixed waste.
This schedule is established in the "Cluster Rule" (51 FR  33712).
Extensions to these dates may be approved  by the Regional
Administrator (see 40 CFR 271.21(e) (3)).

     States initially applying for final authorization after
July 3, 1987 must include mixed waste authority in their applica-
tion for final authorization (see 40 CFR 271.3(f)).   In addition,
no State can-receive HSWA authorization for corrective action
(§3004(u)) unless the State can demonstrate that its definition
of solid waste does not exclude the hazardous  components of
mixed waste.  This is because the State must be able to apply
its corrective action authorities at mixed waste units.


PROGRAM REVISION REQUIREMENTS

     Applying for mixed waste authorization is  a simple, straight-
forward process.  The application package should include an
Attorney General's Statement, the applicable statutes and rules,
and a Program Description.

     1.  Attorney General's Statement

         The Attorney General will need to certify  in the state-
         ment that the State has  the necessary authority  to
         regulate the hazardous components of mixed waste as
         hazardous waste.  Copies of the cited statute(s) and
         rules should be included  in the State's application.
         See Item I.G., "Identification and Listing"  in the
         Model AG Statement in Chapter  3.3 of the State
         Consolidated RCRA Authorization Manual (SeRAM) for
         additional guidance.
-------
     2 .  ?». cc-3m Description

         The Program Description should address how the RCRA
         portion of the nixed waste program will be implemented
         and enforced, and describe available resources and
         costs (see 40 CFR §271.6).  The State must also demon-
         strate that staff has necessary health phvsics and
         other radiological training and has appropriate security
         clearances, if needed, or that the State agency has
         access to such people.

         If an agency other than the authorized State agency is
         implementing the RCRA portion of the mixed waste program,
         then the application should include a Memorandum of
         Understanding (MOU) between that agency and the autho-
         rized hazardous waste agency describing the roles and
         responsibilities of each (see 40 CFR §271.6(b)).

         Lastly, the Program Description should include a brief
         description of the types and an estimate of the number
         of mixed waste activities to be regulated by the State
         (see 40 CFR §271.6(g) and (a)}.  Chapter 3.2.- Program
         Description, in the SCRAM orovides additional guidance.


INTERIM STATUS'

     In authorized States, mix-d waste handlers are not subject
to RCRA regulation until the State's program is revised and
approved by EPA to include this authority.  In the interim,
however, any applicable State law applies.  Treatment, storage
and disposal facilities "in existence" on the date of the State's
authorization to regulate mixed waste may qualify for interim
status under Section 3005(e)(1) (A)(ii) (providing interim stacus
for newly regulated facilities), if they submit a Part A permit
application within 6 months of that date.  In addition, any
such facilities which are land disposal facilities will be
subject to loss of interim status, under Section 3005(e)(3),
unless these facilities submit their Part B permit application
and two required certifications (i.e. groundwater monitoring
and financial assurance) within twelve months of the effective
date of the State's authorization (i.e., within twelve months
of the date facilities are first subject to regulation under
RCRA).  Note:  Federal facilities that handle mixed waste are
not required to demonstrate financial assurance.

     With respect to facilities treating, storing or disposing
of mixed waste in unauthorized States, Headquarters is currently
developing a Federal Register notice that will clarify interim
status qualification requirements under Section 3005(e) as  they
apply to affected facilities that have not notified in accordance
with Section 3010(a) or submitted Part  \ and/or B permit applic-
ations.  We anticipate issuing the FR notice early this Fall.
-------
INCONSISTENCIES

     Section 1006 of RCRA precludes any solid or hazardous .vaste
regulation by EPA or a State that is "inconsistent"  with the
requirements of the AEA.   If an inconsistency is identified, the
inconsistent RCRA requirement would be i nappl icao le .   For example,
an inconsistency might occur where compliance with a specific RCRA
requirement would violate national security interests.   In such
instances, the AEA would take precedence and the RCRA requirement
would be waived.

     The EPA and the Nuclear Regulatory Commission conducted a
comparison of existing regulations for hazardous waste management
and low-level radioactive waste management under 40  CFR Parts
260-266, 268 and 270 and 10 CFR Part 61, respectively,  to ascertain
the extent of potential inconsistencies.  None were  identified as a
result of that effort.  The comparison did indicate  that there were
differences in regulatory stringency,  however.  Thus, in issuing
permits or otherwise implementing its mixed waste program, States
must make every effort to avoid inconsistencies.


     If you have any questions please contact Jim Michael, Chief-,
Implementation Section, State Programs Branch (WH-563B) at FTS/(202)
382-2231 or Betty Shackleford, Mixed Waste Project Manager, State
Programs Branch at FTS/(202) 475-9656.

Attachments

cc:  Elaine Stanley, OWPE
     Federal Facility Coordinators
       Regions  I - X
     Chris Grundler, Federal Facilities Task Force
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ATTACHMENT 1
        Thursday
        July 3, 1986
        Part VI



        Environmental

        Protection Agency

        Hazardous Wasts: Statt Authorization To
        Ragulatt Hazardous Components of
        Radioaetivt Mixtd Wastes; Notlct
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24504
                        Federal Register / Vol. 51. No. 128 / Thursday. |u:y 3. 1986 /  Notices
 ENVIRONMENTAL PROTECTION
 AGENCY
 (F«L-304t-3|

 State Authorization To Regular* me
 Hazardous Component! of
 Radioactive Mixed Wastes Under the
 Resource Conservation and Recovery
 Act

 ACCNCr: Environmental Prctec'ion
 \i*f\r\
 ACTION: \otice.

 SUMMANV: The Environmental Protection
 Agenc> (EPA) is today publishing a
 noi.ce that in order to obtain and
 maintain authorization to administer
 and enforce  a hazardous waste  program
 pursuant to Subtitle C of the Resource
 Conservation and Recovery Act
 (RCRA). States must have authority to
 regulate the  hazardous components of
 'radioactive mixed wastes'.
 Radioactive mixed wastes ' are wastes
 that contain  hazardous wastes sub|eu
 to RCRA and radioactive wastes subject
 to the Atomic Energy Act (AEA).
OATf: States which have received EPA
authorization pnor to the publicity date
of this Notice must, withm'one year of
 the publication date of this notice (two
years if a State statutory- amendment is
required) (i.e.. by |uly 3.'l9«T and July 3.
1968). demonstrate authonty to  regulate
the hazardous components of
 radioactive mixed  wastes. States
 initially applying for final authorization
 after July 3.1967 must incorporate this
provision in  their application  for final
authorization.
PON njNTMtM INFORMATION CONTACT:
Demse Hawkins. Office of Solid Waste
(\\H-563-B). U.S. Environmental
Pro'ection Agency. 401 M Street SW..
 Uashmgton.'DC 20460. 1202} 3M-::iO.
 SU»»IIMINTAMV INPOMMATON:

 A. Authorization of State Hazardous
 Waste Programs
  Section 3006(b) of RCRA provides thai
 Suies may apply to EPA for
 authorization to  administer and enforce
 a hazardous waste program pursuant to
 Subt:;le C of RCRA. Authorized State
 pr jgrams are earned out ;n lieu of the
 Foderal program. However. EPA is
 authorized to implement the Hazardous
                                        and Solid Waste Amendments to RCRA
                                        jHSWAI (Pub. L 98-6161 in autnonzed
                                        States until those States revise their
                                        programs to incorporate the HSWA
                                        requirements and receive EPA
                                        authonzation to implement HSWA.
                                        Requirements for obtaining
                                        authorization are set forth in 40 CFR
                                        Part :n. To date. 41 States have
                                        received final authonzation (not
                                        including HSWA).
                                        B. Regulation of Radioactive Wastes
                                          Section 1004(27] of RCRA excludes
                                        from the definition of "solid waste".
                                        'source, special nuclear or byproduct
                                        material as defined by the Atomic
                                        Energy Act of 1954. as amended (AEA)
                                        (66 Slat. 923)." Since "hazardous waste"
                                        is defined by section 1004(5) as a subset
                                        of 'solid waste". "source, special
                                        nuclear and byproduct material" are
                                        exempt  from the definition of hazardous
                                        waste and thus from the Subtitle C
                                        program.
                                          While source, special nuclear and
                                        byproduct material are clearly exempt
                                        from RCRA. the extent of the statute s
                                        applicability to wastes containing both
                                        hazardous waste and source, special
                                        nuclear or byproduct material has been
                                        les evident. The question of which
                                        wastes are encompassed by the term
                                        "byproduct material" has also been the
                                        subject of some controversy. We note
                                        that the definition of byproduct material
                                        is currently the subject of rulemakmg by
                                        the Department of Energy (DOE). (30 FR
                                        45738. November 1.1965).
                                          Given the lack of clanty on this issue.
                                        EPA did not previously require as a
                                        condition of State authorization that the
                                        State have regulatory authority over the
                                        hazardous components of radioactive
                                        mixed wastes. In  authorizing States.
                                        EPA did not inquire into State authority
                                        over the hazardous components of
                                        radioactive mixed wastes and made no
                                        determination of whether States had
                                        authonty over such wastes.
                                        Accordingly, the Agency has taken the
                                        position that currently authorized State
                                        programs do not apply to radioactive
                                        mixed wastes.
                                          Thus, radioactive mixed wastes are
                                        not currently lubiect to Subtitle C
                                        regulations in authonzed States.' EPA
                                        has now determined that wastes
containing both hazardous v.as-» >-;
radioactive waste are ju:;ec: •; •-?
RCRA regulation.
  Today, we are heresy puc.is.- -;
notice that, pursuant to 40 CFR  Z~: 9
(which requires State programs -o
regulate all wastes contro'iled u.-sj- ;o
CFR Pan 261), Radioactive T.IXBJ A =< -<
are to be part of authorized Stare
programs. States that already ha\'. EP A i
      minorities m lutnonxsa Sum EPA -1.1
UM ill HSWA authorities ig tuppiemrn* in
luihonxed Suit t •uihomy ever RCRA-rer.ij'"!
unit*. Undtr I JOdWu). EPA can •oimli ntue a
permit will) tht Suit and impost eerrectr r  «:• —
requirements an httaraous watte manjftrtni
units tnd iclid weete ntntftmtm jm-i .iwmt.
facilities that contain unut aupiect 10 OCR \
AJthoufft fiaxardous eompontntt :f :isio«rM -
mued wants art not HORA-r»fui..»a j/ij*»
luihonxtd Suit RCRA Brofft-n r.tfiont.-. <
mi»td wtiit will bt eenndtftd 10 bt a  10:  o
wttit  for purpew* of camctivt action 4- >u. i
*4«lt m«JU(tmtni uniti. Tht Ffdtral dtf:r  : - •
"•olid waait  it to bt uatd m d«urtimm| »i -•
unm art awtnu t. txcauM Sttit dtrmitioni »«-,
not tcrunntstd. Thtrtfert. m ordtr 10 obtain
auihontation for cerrtctivt action Sut*< * .»•
obtain auitionxinon for their atf'.nmon of 10 ".
waait vhick may not txclud* nazardout
component! of radioactive -mien »«»IM 8f,.i-
radiotctive mued want n connderta a ion. •«,
under tht Fedtrai RCRA prof ram  jr. tt ;or-< •  • j
radioactive mued wattes are iwmu ^ ma 4*c
lueiect to C3ir«ctive action  • 'nere •« «no-"«- .- •
r*4mr:nf a DCRA permit i\ -he '*c.:ui SCR ^
enforcement activities alto 
  ' EPA n not promuifaiint, a -»«u.«i.on •::„.
However m !'|.1t of the A|enc\ i are\ on 3*
»e believe it  • appropriate to prev.de 'fie •  -•
allowed By «oCFH  I". ::;»i::: forS-i'f s-oi-,-
•nodificationt to confora to '»iumon -•t-t-\
Nntt mat EPA haa prepottd to a.reid 40 CF?
271.21 to ailow States vint;i |uh l of ««ck .<:••- >o
incorporate cnanits to me Feder>t04  Unu  c -J'c- -;
ipproacn for radioact-ve mure »«itri •'. *~i •••-
:*e reMSioni to I 1*\ 21 art firu .v jr«r .   :
-------
                        Ftdtrai Reyitif / Vol. SI. No. 128 / Thursday  July 3. 1986 /  Notices
initially apptyini for final authorization
ont y««r after the publication date of
this nonet must makt inn
demonstration in ihur initial*
application.
  tn most cases. tiv.s *;:! require ar.iy an
mterprem e suierrent 3v -r.e State
Attorney General, since most States
have the same exception to the
definition of 'solid waste  as that
contained in section 1004!2~] of RCRA
Some States, however, may require
statutory amendments m order to
regulate the hazardous components of
radioactive mixed wastes. Sucn States.
if already authorized, must reuse their
programs within two yearn of iu,e
publication date of this notice S:«:es
mit-alU  applying that need a statutory
amendment will have to obtain tne
amendment before submitting nn
application  for final autnonza-ion
  In order to demonstrate refutation of
tne hazardous components of
radioactive mixed wastes. Sta'M should
submit to the appropriate Regional
Administrator a copy of all applicable
statutory and regulatory provisions, plus
a statement by the State Attorney
General to the effect mat the State s
hazardous wane program appnes to
wastes containing both hazardous  *aste
and radioactive waste as defined b\ rne
AEA. If an aaency otr.er than the
authorized hazardous waste aaencv Mill
implement the radioactive mixed waves
program, the authorization application
•rust include a description of tne
agency s  functions nee 40 C-R :*". Sibi)
and a .Memorandum of Understanding
between  that agency and the authorized
hazardous waste agency describing trie
rotes and responsibilities of each.
  The DOE has proposed an interpret r
definition of the t»rm "byproduct
material" 153 FR 45r3o  November  l.
19831. and is now evaluating public
cornnent Pending ciartf-catian of tnts
issue, this matter will be addressed on a
case-b\-case basis.
  v\e also note tna: section 1006 of
RCRA precludes any regulation  b\ EPA
or a State wmch :s inconsister.t wnn 'p.e
requ:rerr.en's of the Atomic Enetgv Ac;
EPA «.id'-e Sia'e r-ia\.  •-»• •:••:
cas«?-o\-case ^aS.$ .se -re *.	
S 1006 .0 modif\ -azarsc.s .v-»-
requirements to adc.-eu -ac.-.a,--
r.ixed wastes ac'.:\'t:#j c»»j -:
•ssuance of EPA s re«u aiior -.\,-..
set forth procedures :c: accrcss.
inconsistency ,«sue  In
the Nuciear Reauutcr\
[NRCl. and DOE wi.i DB *ork r;
together to aeveiop gu.car.ce
  Notwithstanding an\ nine' ~r;   <
otlaw all requ'terrents of :r.e A£.\
all E\ccuti\e Orders concur—-a :.-p
handl.p.a of restricted data *nc r......
S9curt»\  information. i.-.c!a-..-.a  rcr
know r^quirr-rpnts. sr.oii ir aco..,-
to -nv gr.mt of access to c:_i-i,f ed
inforr-.a'.ion under the prj\i$.3r.< oi
RCRA
  0«:fd  !un« 30. :986
| Wintion Porter.
 *Si'i:zrr •ij-- .- j;~v • .•• s
£*'*!»'<••'•'.  ftmSO'it
;FR Doe  a»-;s^o r.:.a --:-« 1:  :«pn
      cooc <
-------
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        /.ASr^lMTON DC 20-160
                                                         OFFICE O F

                                                         -EHAl. COUNSEL.
MEMORANDUM
SUBJECT:  Regulation of Radioactive "Mixed"  Waste Under RCRA
FROM:     Joseph
          Attorney (LE-13^5)

TO:       Marcia Williams, Director
          Office of Solid Waste (WH-562)
THRU:     Mark A.  Greenwood
          Assistant General Counsel
          Resource Conservation and Recovery
            Act Branch (LE-132S)

     Attached for Dr. Porter's signature is a draft letter
transmitting to the Department of Energy ("DOE")  draft revisions
to EPA's RCRA regulations.  The revisions would specify proce-
dures for RCRA regulation of DOE facilities operated under
authority of the Atomic Energy Act ("AEA").  In accordance
with previous discussions with you and your staff, the trans-
mittal letter would advise DOE that in authorized States,  with
respect to radioactive "mixed wastes," it was under no obligation
to submit a permit application or certify compliance with
groundwater monitoring requirements on November 8, 1985.

     The view that mixed waste is not currently subject to
authorized States' RCRA programs may generate considerable
controversy.  Given the confusion surrounding the subject,
we thought it would be useful to offer the following summary
and analysis of the mixed waste issue for your consideration in
reviewing the draft letter to DOE.  We also recommend that EPA
publish a notice clarifying that RCRA does apply  to mixed
waste, and requiring authorized States to amend their programs
accordingly.

Background:

     DOE originally took  the position that its facilities
were not subject to RCRA  at all.  EPA and the Department of
Justice's Office of Legal Counsel did not agree with DOE's
absolutist position, which was ultimately rejected by the
-------
                              -2-
court in LEAF v,. Ho del, 586 F.  Supp.  1163  (E.D.  Tenn.  1984).
After the court decision,  DOE abandoned its  claim  of  total
exemption.

     However, the LEAF decision did not address  the regulation
of "mixed wastes."  Section 1004(27)  of RCRA excludes  from  the
definition of solid waste (and thus hazardous waste)  "source,
special nuclear and byproduct material, as defined by  the
Atomic Energy Act."  While these materials are clearly exempt
from RCRA, the status of mixtures containing both  those
materials and hazardous wastes was less evident.  In  a
February 21,  1984 memorandum to Ernesta Barnes (Attachment  I),
then-Assistant Administrator Lee Thomas declared:

     EPA1 s authority to regulate these "mixed" wastes  under
     RCRA is not entirely clear, and the universe  and  genera-
     tors of these wastes have not been fully identified.
     We are working to determine EPA's legal authority over
     these wastes and appropriate and effective measures for
     managing them.  Once a final determination about these
     issues has been reached, EPA will announce it publicly.
     If EPA determines that these wastes,  which are  currently
     regulated under the AEA, are subject to regulation under
     the federal RCRA program, authorized states will have the
     time frame provided in 40 CFR 271.21  (e) to amend their
     programs to become equivalent.  Until that time,  EPA will
     not require the States to regulate any waste  stream that
     has both hazardous and source, special nuclear,  or bypro-
     duct components as a requirement of authorization.

     In the aftermath of the LEAF decision,  EPA and  DOE
informally agreed that "mixed wastes" were subject to RCRA.
However, questions remained on which wastes are "byproduct
material," and thus exempt from RCRA, and which wastes,  though
containing byproduct material are not _in their entirety byproduct
material,  and thus are subject to RCRA.  DOE agreed to prepare
a rule which would clarify the definition of byproduct material
in this regard;  drafts were circulated as early as mid-1984,
and a rule was proposed November 1, 1985 (50 Fed.  Reg. 45736).

     EPA has not yet issued a public pronouncement that mixed
waste is in fact subject to RCRA.  However,  in a May  1,  1985
memorandum to the Regional Hazardous Waste Division Directors
(Attachment II), John Skinner declared that EPA and DOE  had
agreed that RCRA applies to "certain radioactive mixed wastes,"
and recommended that until new regulations are  promulgated,
EPA should issue RCRA permits (in non-authorized States) for
"those mixed wastes which are clearly  RCRA wastes, i.e.
where DOE agrees that a particular mixed waste  is subj ect  to
RCRA."  Nonetheless, despite the implied assertion of RCRA
authority over mixed wastes, the Skinner memo declared  that
States cannot yet receive RCRA authorization  to regulate mixed
-------
                              -3-

wastes, and .would not be able to do so until EPA publishes  a
Federal Register notice describing our interpretation of  the
radioactive waste exclusion.  In addition;  as Skinner recognized,
EPA. is unable to issue RCRA permits in authorized States.
Thus, under the approach set forth in the Skinner memorandum,
no RCRA permits regulating mixed wastes could be issued  in
authorized States.  Mr. Skinner reaffirmed  this  position  in an
August 30, 1985 memorandum to James H. Scarborough,  a Waste
Management Division Branch Chief in Region  IV (Attachment  III).

     The view that authorized State RCRA programs do not
extend to mixed waste is based on the theory that when EPA
authorized those programs, "EPA had no interpretation on  the
radioactive waste exemption [so] there is no way that EPA
could have reviewed the State programs for  equivalence."
See Attachment III.  Accordingly, State regulation of mixed
waste, even if framed in terms identical to the RCRA statute,  j_/
is deemed "beyond the scope" of the RCRA program.  While  this
theory makes sense with respect to States that were authorized
before EPA concluded that RCRA extended to  mixed waste,  it  is
less compelling with respect to States that applied for authori-
zation after EPA reached that conclusion, and after the Agency
decided that its own permits would cover mixed wastes.  While
some believe that RCRA State authorization over mixed waste
should await regulatory clarification of the mixed wastes
universe, it would seem that if mixed wastes are subject to EPA
RCRA permitting, they should also be covered by authorized
State programs.  After all, the exact parameters of many of the
waste streams regulated under RCRA are not clear, but authorized
States are nevertheless required to regulate them.  Thus,
although the exact definition of mixed waste may still be
unresolved, it would seem appropriate for the Agency to publish
a Federal Register notice declaring that mixed wastes, i.e.,
wastes containing both source, special nuclear or byproduct
material and hazardous wastes, are subject  to RCRA and that
State programs must be revised accordingly. 2/

     You should also be aware that in discussions with the
regulated community, EPA did not advise owner/operators that
there were no RCRA requirements with respect to mixed wastes
in authorized States.  To the contrary, as late as May 22,
1985, U.S. Ecology was advised of the need  to submit a Part B
permit application by November 8, 1985 with respect  to any
]_/  All but a few states provide an exception identical to that
    contained in section 1004(27) of RCRA.

2/  For the reason set forth in footnote  1 , only a few states
    would actually have to revise their programs; most would
only need to certify to EPA that mixed wastes are covered.
-------
                              -4-

hazardous waste which is not source,  special  nuclear,  or
byproduct material.   Similarly,  we never  advised  Congressional
staff of our position on authorized State Regulation of  mixed
waste.  It is possible that knowledge of  that position would
have defused the effort to provide legislative relief to U.S.
Ecology and others similarly situated from  the loss  of interim
status provision,  since most relevant facilities  are located
in states with authorized RCRA State programs.

     You may wish to consider the  foregoing in determining
whether to affirm the position taken in the attached Skinner
memoranda, which is  reflected in the draft  transmittal letter
to DOE.  While we are comfortable  with that position from a
legal standpoint,  at least with respect to  States which  were
authorized before May 1, 1985 (the date of  the first EPA memo-
randum concluding that RCRA does apply to mixed waste),  we
believe that solid arguments may be advanced in support of a
contrary view.  We will be glad to discuss  this matter with you
further at your request.
Attachments

cc: Gene Lucero
                                                                    i
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   FEDERAL FACILITIES
RCRA OPERATING GUIDANCE
-------
                                FEDERAL FACILITIES
                            RCRA OPERATING GUIDANCE


5.0          FEDERAL FACILITIES/ISSUES


5.1          PROGRAM OBJECTIVE


       The objective of EPA and State activity at Federal facilities is to ensure that these

facilities afford the same degree of environmental protection as is required of other hazardous

waste handlers.


5.2          RELATION TO FY 1989 RCRA IMPLEMENTATION PLAN


       Greater emphasis on:


                    The timely settlement of compliance agreements and final orders at Federal
                    facilities; and

             •      The integration of RCRA and CERCLA at Federal  facilities.


       Continued emphasis on:


             •      The application of EPA's timely and appropriate enforcement criteria at
                    Federal facilities;

             •      Use of the A-106 process; and

             •      The issuance of permits to facilities treating, storing or disposing of
                    hazardous waste.


       New emphasis  on:


             •      The issuance of actions against contract operators of government owned
                    facilities; and

                    The calculation of penalties for violations of RCRA requirements.
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5.3           OVERVIEW OF ACTIVITIES

Application of EPA's Timely and Appropriate Enforcement Criteria

       The enforcement priorities in Section 3 apply to Federal facilities. Authorized States have
the lead on enforcement for Federal handlers.  States should apply the same criteria, mechanisms
and processes for proceeding against a private handler in non-compliance with RCRA
requirements to Federal facilities in non-compliance.

       EPA's process for proceeding against a Federal facility is outlined in the January 25, 1988
memorandum entitled "Enforcement Actions Under  RCRA and CERCLA at Federal Facilities."
EPA will take action at a Federal facility when a State refers the case to EPA for action and
provides justification for the referral or when a State fails to take action  in a timely manner as
described in EPA's Enforcement Response Policy.

Penalties

       In consideration of the inconsistent case law  on the issue of sovereign immunity  from
civil penalties, EPA and the States are not required to assess and collect penalties at Federal
facilities in violation of RCRA requirements. However, EPA Headquarters still considers the
penalty process a useful tool in deterring RCRA violations at Federal facilities and for ensuring
compliance is achieved. EPA Headquarters recommends that the Regions calculate the penalty
amount that would be assessed for violations of RCRA requirements if there was clear authority
to assess such penalties at a Federal facility.  Regions would then notify the Federal facility of
this penalty amount in  the initial formal enforcement action taken against the Federal facility
(e.g., EPA  Notice of Noncompliance). The dollar figures  should be based on EPA's standard
procedures for calculating penalties.  Consistent with Federal Facilities Compliance Strategy, if a
press release is issued by the Region announcing the initial formal enforcement action, it may
also contain the penalty figure with the appropriate  caveats.  At the end of the fiscal year, the
penalty information will be used in a report on Federal facility compliance with RCRA.

Elevation Process

       Headquarters is placing a high priority on the timely resolution of compliance issues at
Federal facilities. The negotiation of Federal Facility Compliance Agreements (FFCA) should not
exceed 120 days.  If issues are not resolved within this time period as outlined in the March 24,
1988 memorandum on  the "Elevation Process for Achieving Federal Facility Compliance Under
-------
RCRA," the unresolved disputes should be elevated to EPA Headquarters.  The 120 day
negotiation deadline and subsequent elevation of unresolved issues should be clearly outlined in
the Notice of Noncompliance. The Regions should also encourage the States to resolve
compliance issues at Federal facilities in the same period of time and notify Federal agencies of
negotiation deadlines up front.  The Federal Facilities Hazardous Waste Compliance Office
(FFHWCO) will prepare quarterly reports on the status of enforcement response at Federal
facilities.

Actions Against Contract-Operators  of Government-Owned Facilities

       Headquarters will continue to encourage and support the issuance of actions against
contract-operators of government-owned facilities as a viable enforcement option for achieving
compliance at Federal facilities.  The FFHWCO will be providing more guidance on this issue
during FY 1989.

Integration of RCRA and CERCLA at Federal Facilities

       Federal facilities that treat, store or dispose of hazardous  waste will need to obtain RCRA
permits.  The Regions and States should continue to develop permits (including post-closure
permits) for Federal facilities in accordance with the priorities established in Section 2.3.  These
permitting activities may include evaluating corrective action  needs, developing schedules of
compliance, targeting public involvement, and approving closure plans.

       Many Federal facilities subject to RCRA corrective action are also being evaluated and
listed on  the National Priorities List when appropriate as discussed in the Federal Facility Listing
Policy (54 FR 10520).  At such facilities, RCRA corrective action needs must be coordinated with
Superfund activities. The preferred approach to address Federal facility NPL sites is to use
CERCLA Section 120 Interagency Agreements. The Regions  should develop a strategy  for
integrating the RCRA and CERCLA cleanup authorities at each of their priority Federal
facilities.  When developing a plan for action, the following factors should be considered:  NPL
status of  the Federal facility, status of the RCRA permit, the  type of release (e.g., hazardous
waste, radioactive, or mixed waste), and the level of state participation at the facility.  There are
several different statutory mechanisms that EPA and the States can use as a basis for developing a
comprehensive strategy for addressing RCRA corrective action and CERCLA remedial action at
Federal facilities.  These mechanisms include RCRA corrective action orders under Sections
3008(h), 7003 or 3013,  the corrective action provisions of a RCRA permit, administrative orders
under CERCLA Sections 104 and 106, and Federal Facility Agreements under CERCLA Section
-------
120. The January 25, 1988 memorandum on "Enforcement Actions Under RCRA and CERCLA
at Federal Facilities" describes each of these tools in more  detail. Model language for Federal
Facility Agreements under CERCLA Section 120 with both DOE and DoD is also available.  It is
very important that the RCRA and CERCLA programs communicate and coordinate their
activities.  States should be asked to participate in developing the facility-specific strategies for
integrating RCRA and CERCLA.  The FFHWCO will be providing more guidance on this issue
during FY 1989.

       For Federal facilities that will not be listed on the NPL and may not be seeking a RCRA
permit, the Regions and the States should determine the need to take action at the facility based
on the threat it presents to human health and the environment. The appropriate factors and
mechanisms to consider in developing a strategy for such facilities are the same as those for
facilities seeking RCRA permits listed on the NPL. The determination of need for
corrective/remedial action should be in accordance with Section 4, and should ensure the worst
sites are addressed first.

A-106

       Regions and States should continue  to review and comment on the A-106 funding levels
for Federal agency proposed pollution abatement projects. The Regions and States should
concentrate first on a review of compliance "Class I" projects (those projects that have either a
signed compliance agreement or consent order in place to correct deficiencies cited during an
inspection; or those projects which are required immediately because a statutory or regulatory
deadline has passed).   Secondly, within time and resource constraints, review the Class II and
Class III projects. Regions and States can seek guidance from the Regional Federal Facilities
Coordinator.  During the January-March review period, Regional program staff should
coordinate their comments with their program counterparts in delegated and authorized States.

DoD Chemical Demilitarization Facilities

       Regions 4, 6,  and  10 are expected to continue cooperating with the Army to develop
RCRA incineration permits for their chemical agent demilitarization sites. The  Regions will use
the initial RCRA permit of this type (issued in FY 1989) as a model. All Regions (and States) in
which stockpiles of chemical warfare agents are located  will participate in the Intergovernmental
Consultation and Coordination Boards (ICCBs) that oversee the demilitarization program.
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DOE - NRC Mixed Waste

       Under the Federal program, all RCRA requirements are applicable to mixed waste
handlers.  Regions and States are to continue to address mixed waste handlers based on the
environmental benefits expected to be achieved (see Section 1). Until an authorized State revises
its regulations and/or statutes, and until it seeks and obtains authority to regulate mixed waste,
mixed waste is not hazardous in that state.  Authorization applications from States not needing a
statutory change for mixed waste were due September 1, 1988. States needing a statutory change
have an additional year to submit such applications. Many States have applied for and received a
six-month extension of the applicable deadline. Because of this, regulation of mixed wastes
continues to be fragmented. Regions must move aggressively and encourage States to comply
with these deadlines to mitigate confusion and continued fragmented implementation of the
RCRA program as it applies to mixed waste.

       On September 23, 1988, EPA published a Federal Register notice extending the deadline
for owner-operators at TSDFs in unauthorized States to submit Part A of the permit application
in order to qualify for  the interim status for mixed waste activities.  The deadline for receipt of
those Part A applications is March  23,  1989. Further, in conjunction with the Nuclear
Regulatory Commission (NRC), notification of potential RCRA applicability and a copy of the
September 23, 1988 notice (53 FR 37045) were sent to each NRC or Agreement State licensee.
Headquarters anticipates that this extension will result in a substantial increase in the number of
Permit applications received by the Regional offices. These applications should be addressed in
accordance with established priorities.  Owners and operators of facilities in authorized States
must comply with State requirements regarding interim status.

       The Low-Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA) requires
States to provide for disposal of commercially  generated low-level radioactive waste either
independently or in compacts with other States. Such capacity must be available by January 1,
1993.  States failing to  meet this deadline will be subject to substantial penalties.  While the exact
number of future commercial low-level waste  disposal facilities is uncertain (a final number will
be between 8 and 15), NRC and DOE have determined that low-level waste disposal facilities
must also  provide for mixed waste  disposal in order to fulfill the requirement established by the
LLRWPAA.  At this time, Texas and Nebraska have indicated they will have mixed waste
disposal capacity. Regions  and States should begin identifying the resource implications of
permitting mixed waste disposal facilities by January 1, 1993.  Headquarters has developed two
guidance documents that focus on disposal facility siting and design. (See OSWER Directives
numbered 9480.00-14 and 9487.00-8, respectively.)  The goal of both Headquarters and these
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documents is for RCRA compliance not to become an impediment to States meeting this
milestone.

       Headquarters is currently developing a number of second generation guidance documents
in response to needs identified by Regions and States.  In FY 1989, guidance on mixed waste
characterization and verification, storage, inspection, and joint licensing/permitting will be
available.  Additionally, Headquarters is developing a mixed waste training course.  A second
workshop is also planned for late summer which will focus on issues raised at the National Mixed
Waste Workshop held in 1988.

       Lastly, Regions should  encourage States to seek authorization for those provisions which
may impact  the regulation of mixed waste (e.g., permit modification rule,  Christmas Tree Rule,
Subpart X) concurrently with mixed waste authorization, if possible.  This may be especially
critical for states with major DOE facilities.

5.4           MAJOR ACTIVITIES

       Headquarters:

              •      Prepare  quarterly reports on the status of enforcement response at Federal
                     facilities in significant noncompliance.
              •      Compile an end-of-year report on Federal facility compliance with RCRA.
                     Resolve noncompliance issues that are elevated to Headquarters in
                     accordance with the "elevation policy" of March  24, 1988.
              •      Continue to provide Regional Offices with guidance on RCRA/CERCLA
                     integration at Federal facilities.
              •      Distribute A-106 draft reports to Regional Offices  for comments;
                     distribute draft OMB report to Regional Offices for comment; distribute
                     final OMB report, as requested.
       Regions and States:
              •      Apply timely and appropriate enforcement criteria  to Federal facilities.
              •      Elevate  compliance issues that are not resolved in a timely fashion.
              •      Continue to review and comment on draft A-106 reports and EPA's draft
                     OMB report.
              •      Issue actions against contract-operators of government-owned facilities
                     where appropriate.
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                    Calculate penalty amounts for Federal facilities in violation of RCRA
                    requirements and notify Federal facilities of these amounts
                    (recommended).
5.5           LIST OF NEW AND PROPOSED REGULATIONS


      Not Applicable.


5.6           RELEVANT GUIDANCE DOCUMENTS
                    Enforcement Actions Under RCRA and CERCLA at Federal Facilities.
                    (January 25, 1988)

                    Elevation Process for Achieving Federal Facility Compliance Under
                    RCRA. (March 24,  1988)

                    Agreement with the  Department of ENergy--Model Provisions for
                    CERCLA Federal Facility Agreements.  (May 27, 1988)

                    Agreement with the  Department of Defense--Model Provisions for
                    CERCLA Federal Facility Agreements.  (June 17, 1988)

                    Enforcement Actions at Government-Owned Contractor-Operated
                    Facilities. (September 8, 1988)

                    Federal Facilities Compliance Strategy. (November, 1988)
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   CHAPTER 7



DATA MANAGEMENT
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                                      CHAPTER?
                                  DATA MANAGEMENT


7A.    Superfund Comprehensive Accomplishments Plan/Superfund Project Management System
      Definitions and Methodologies

7B.    CERCLIS Guidance
                                                                               1/90
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                        FEDERAL FACILITY DEFINITIONS
INTRODUCTION
       Definitions for Federal Facility activities are generally the same as those used for PRP-
financed actions. The Federal Facility activity definitions have been divided into three
categories: Pre-remedial, Remedial and Enforcement. The SPMS measure, "NPL sites addressed"
includes remedial, removal, enforcement and Federal Facilities activities.  The definition can be
found in the Remedial category.

PRE-REMEDIAL

ACTIVITY:   PA Completions

       DEFINITION: A Preliminary Assessment is the first stage of site assessment. Geological
       and hydrological data and data concerning site practices are reviewed to complete the PA
       report.  Federal agencies are required to conduct PAs at their facilities.

       DEFINITION OF ACCOMPLISHMENT:  A PA is complete when the PA  report is
       reviewed and the PA completion date is entered into CERCLIS.

       CHANGES IN DEFINITION FY89-FY90:

       SPECIAL PLANNING REQUIREMENTS:

ACTIVITY:   SI Completions

       DEFINITION: The site inspection involves collecting field data for the purpose of
       characterizing the magnitude and severity of the hazards posed by the facility. An SI
       should provide adequate data for EPA (using FIT resources) to determine the site's
       Hazard Ranking System (HRS) score. Federal agencies are required to conduct Sis at their
       facilities.

       DEFINITION OF ACCOMPLISHMENT:  An SI is complete when EPA reviews the SI
       report, a draft HRS score has been derived, and the completion date is entered into
       CERCLIS.

       CHANGES IN DEFINITION FY89-FY90:

       SPECIAL PLANNING REQUIREMENTS: A projection must be made in CERHELP of
       the FIT resources needed for HRS development.


REMEDIAL

       The following Federal  Facility remedial activities are tracked through SPMS and SCAP.
The definitions encompass first, subsequent, and final activities.

ACTIVITY:   Federal Facility RI/FS Starts

       DEFINITION: An RI/FS is the development of a carefully scoped solution or part of a
       solution to a contamination problem.  Federal facility RI/FS are conducted by the Federal
       entity. The Federal agency is required to start an RI/FS within six months of site listing
       on the NPL.
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      DEFINITION OF ACCOMPLISHMENT:  The start date is either 1) A signed FFA/JAG
      or 2) Publication of timetables and deadlines in consultation with the state for expeditious
      completion of the RI/FS. Subsequent RI/FS start is defined as the receipt of the RI/FS
      workplan within the context of the FFA/IAG.

      CHANGES IN DEFINITION FY89-FY9Q: Subsequent RI/FS start definition was added.

      SPECIAL PLANNING REQUIREMENTS:  First and subsequent RI/FS starts are a
      combined SCAP target.

ACTIVITY:   Federal Facility RI/FS Completion (ROD)

      DEFINITION:  The ROD is the document which details the selection of remedy.  The
      Federal entity and EPA jointly select the  remedy at the facility.

      DEFINITION OF ACCOMPLISHMENT:  The date the initial, subsequent, or final ROD
      is signed by the Regional Administrator or the Assistant Administrator for OSWER is the
      completion date. This date must be entered in CERCLIS.

      CHANGES IN DEFINITION FY89-FY90:

      SPECIAL PLANNING REQUIREMENTS:  First, subsequent and final RODs are
      combined SPMS and SCAP targets.

ACTIVITY:   RD Starts

      DEFINITION:  An RD is the process of developing plans and  specifications for the
      selected remedy. The Federal agency and/or its contractor performs the RD.

      DEFINITION OF ACCOMPLISHMENT:  The RD start is defined as the date the RD
      workplan is received by EPA, as recorded in CERCLIS, within the context of the IAG.

      CHANGES IN DEFINITION FY89-FY90: The  definition is the date of the receipt of the
      workplan instead of award of RD contract.

      SPECIAL PLANNING REQUIREMENTS:  First, subsequent, and final RDs are a
      combined SCAP target.

ACTIVITY:   RA Starts

      DEFINITION:   An RA represents construction activities to address a release or potential
      release of a hazardous substance at a site. The Federal agency or its contractor performs
      the RA at the Federal Facility.

      DEFINITION OF ACCOMPLISHMENT:  An RA start is defined as the date, as  recorded
      in CERCLIS, that EPA receives the RA workplan  within the context of an IAG.

      CHANGES IN DEFINITION FY89-FY90: The  definition is the receipt of the workplan
      instead of the approval of the workplan.

      SPECIAL  PLANNING REQUIREMENTS:  Separate projections are made for first,
      subsequent and final RA starts.

ACTIVITY:   RA Starts Post SARA at NPL Sites

      DEFINITION:  A Post-SARA RA start is defined  as the initiation of on-site construction
      activities after October 16,  1986.
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      DEFINITION OF ACCOMPLISHMENT: Credit is given when substantial and continuous
      on-site work has begun at sites where EPA has concurred on the ROD and an IAG/FFA
      is in place. The date substantial and continuous on-site work begins must be recorded
      and documented in CERCLIS.

      CHANGES IN DEFINITION FY89-FY90:

      SPECIAL PLANNING REQUIREMENTS:


ACTIVITY:   Percent NPL Sites Addressed

      DEFINITION: The number of proposed or final NPL sites where a removal action,
      RI/FS, enforcement action (Section 106  referral or unilateral order) or RCRA correction
      action has taken place divided by the total number of sites on the NPL.

      DEFINITION OF ACCOMPLISHMENT: See Definition.

      CHANGES IN DEFINITIONS FY89-90: New Definition for FY90.

      SPECIAL PLANNING REQUIREMENTS:  RI/FS starts include Fund-financed, Federal
      Facility, State Enforcement (with or without EPA involvement), and State financed
      projects. CERCLIS will automatically review the site specific records, calculate the
      percentage and place it in the CERHELP Targets and Accomplishments file.


ENFORCEMENT

      ACTIVITY:   Signed Federal Facility Aereement/Interaeencv Agreements at NPL Sites

      DEFINITION: Under §120 of SARA, Federal Agencies are required to enter into a
      Federal Facility Agreement/Interagency Agreement with EPA within 6 months of EPA
      review of RI/FS regarding: 1)  A schedule for completion of the remedy; and 2)
      Arrangements for Operations and Management (O&M) at the facility.  OSWER policy is
      to enter into an IAG for the RI/FS and RD/RA phases.

      DEFINITION OF ACCOMPLISHMENT: Credit is given for any of the following: 1)  A
      signed §120 FFA/IAG for an RI/FS/RD/RA or RD/RA only; 2) Issuance of a §3008(h)
      Corrective Action Order that addresses all releases; 3) Referral of a Section 106
      Administrative Order to the Department of Justice for concurrence; 4) Issuance of a
      RCRA permit addressing all releases and all CERCLA requirements; or 5) A formal
      referral has been made to the AA SWER for dispute resolution.  A site can only receive
      credit once under this measure.

      CHANGES IN DEFINITION FY89-FY90:

      SPECIAL PLANNING REQUIREMENTS:  Issuance of a Section 3008(h) Order, issuance
      of a RCRA permit  and formal referral to OSWER are not currently tracked  in CERCLIS.
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                    FEDERAL FACILITY METHODOLOGIES

REMEDIAL INVESTIGATION/FEASIBILITY STUDIES (RI/FS)

      Federal Facility RI/FS Start

      METHODOLOGY: The initial national and regional targets for Federal Facility RI/FS
      starts are based on projected RI/FS starts for FY91 in CERCLIS.

      DIFFERENCE FY90-FY91: New methodology for FY91.


      Federal Facility RI/FS Completion (RQD^

      METHODOLOGY: The national and regional candidate list for Federal Facility RODs is
      based on projected Federal Facility RODs in the CERCLIS records as reported by the
      regions.

      DIFFERENCE FY90-FY91:


REMEDIAL DESIGN (RD)

      Federal Facility RD Starts

      METHODOLOGY: The initial national and regional targets for Federal Facility RD starts
      are based on projected RD starts for FY91 in CERCLIS.

      DIFFERENCE FY90-FY91: New methodology for FY91.


REMEDIAL ACTION (RA)

      Federal Facility RA Starts

      METHODOLOGY: The initial national and regional targets for Federal Facility RA starts
      are based on projected RA starts for FY91 in CERCLIS.

      DIFFERENCE FY90-FY91: New methodology for FY91.

      RA Starts Post-SARA at NPL Sites

      METHODOLOGY: The national and regional candidate list for Federal Facility RA starts
      post-SARA at NPL sites is based on projected sites in CERCLIS.

      DIFFERENCE FY90-FY91:


ENFORCEMENT

      Signed Federal Facility Agreement/Interaeencv Agreements at NPL Sites

      METHODOLOGY: The national and regional methodology for Interagency Agreements
      at NPL sites is based on the number of proposed or final NPL Federal Facilities in each
      region without a signed FFA/IAG.

      DIFFERENCE FY90-FY91:
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FEDERAL FACILITIES

       The primary focus of the program is on Federal Facilities currently on or proposed to the
NPL and entering in Section 120 Federal Facility Agreements/Interagency Agreements
(FFA/IAG) with these facilities. The first priority for FY90 is to continue to oversee work at
facilities with §120 FFA/IAGs signed in FY89.  The second priority is to complete §120
FFA/IAG negotiations at facilities which were targeted in FY89 but slipped to FY90 and  the
third priority is to enter into §120 FFA/IAGs  that were not targeted for §120 FFA/IAGs in
FY89.  All proposed and final Federal Facilities, including Update 9 sites, should have signed
§120 FFA/IAGs by the end of FY90, except for several Federal Facilities which will be targeted
inFY91.

       Many of the Federal Facilities will have  significant RCRA/CERCLA integration issues.
Regions, in conjunction with states, need to address these issues relative to the scope of the
FFA/IAG early in the negotiations process.  Both RCRA and CERCLA program staff, as  well as
the Office of Regional Counsel, need to be involved in these discussions.

       Federal Facilities are defined as "Facilities owned or operated by a department, agency,
instrumentality of the United States." The Federal Facilities Hazardous Waste Compliance Docket
contains the primary universe of Federal Facilities that are being assessed for inclusion on the
National Priorities List.  The bulk of these Facilities on the Docket that have been or will  be
placed on the NPL are Facilities owned by the Departments of Defense and Energy. Over time,
Facilities and lands owned by the Bureau of Land Management (BLM) within the Department of
Interior will probably score high enough for inclusion on the NPL. To date, the Docket does not
contain Facilities that fall within the "Formerly-Owned" category.  HQ is currently analyzing
these Facilities relative to the  requirements of CERCLA §120.

       EPA's policy is to enter into §120 lAGs with all Federal Facilities proposed to or on the
NPL.  The scope of  these lAGs is to include the RI/FS phase as well as the RD/RA  phase.
Where appropriate, and in conjunction with the  RCRA program offices, these lAGs can be used
to justify RCRA so that only one set of requirements is applied to avoid redundant and
duplicative efforts.  In some cases, however, a combined RCRA/CERCLA permit/IAG approach
may be taken when the situations warrant such an approach, e.g., at DOE Weapons Facilities, or
when  the State or EPA RCRA program has compelling interests at units  on a Facility.  Pre-
planning, coordination among appropriate offices, and  definitive "scoping" of a Federal Facility
necessary factors for successful remediation.

       Regions should follow the Federal Facility negotiation policy for addressing Federal
Facilities. In essence, the policy is as follows:

              •     Establish 90 day  IAG negotiation periods based on the quarterly SCAP
                    IAG targets.  These schedules are to be forwarded to HQ two weeks prior
                    to each quarter.

              •     Address the RCRA/CERCLA issues prior to the negotiation period in
                    conjunction with the State and RCRA program offices.

              •     Issue a Federal Facility  notice letter to the Federal Facility establishing the
                    negotiation time frame.

                    Conduct three-party negotiations. The 90 day period may be extended 30
                    days if settlement is close.

                    If issues still remain after the 90/120 day period, the IAG is to be elevated
                    to HQ (FFHWCO) for dispute resolution. Along with the elevation, the
                    region should recommend either a 106 AO or two-party agreement  should
                    HQ resolution fail. If settlement is not reached, either the 106 AO  will be
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                     referred to DOJ or the region will enter into a two-party agreement,
                     depending on which is appropriate.

       In situations where a Federal agency is a PRP at a private site, they are to be treated the
same as a private party.  Cash-outs with premiums with the Federal agency may expedite RI/FS
and RD/RA negotiations.  Similarly, at formerly-owned sites with multiple PRPs, the Federal
agency is to be treated the same as a private party. At formerly-owned sites where the Federal
agency is taking sole responsibility for the RI/FS and RD/RA, the regions may use a §120 IAG
approach.
i
                                                                                                i
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                   FY90 BUDGET CATEGORY:  FEDERAL FACILITIES

       The Federal facility budget in FY90 is $7,OOOK. nationally.  This money is used to fund
the Case Budget activities listed below at Federal facility sites. It is imperative to code the site
(C135) a 'Y', indicating that it is a Federal Facility.  In addition, the value leads are 'FP for
events (C2117) and 'FE' for activities (C1707).

IAG Negotiation

       In FY90 S2.750K is available nationally to fund IAG negotiations. The activity code in
CERCLIS (C1732)  is 'IN.'  The valid lead (C1707) is 'FE.'  The average pricing factors is $50K
annually.

RI/FS and RD/RA Oversight

       RI/FS and RD/RA oversight costs at Federal Facilities are associated with the appropriate
operable unit.  It is imperative  that the Case Budget request corresponds to the operable unit for
which the event is  planned. Oversight at the First Operable Unit is priced at $20K per quarter.
The cost of the oversight at the second operable unit is $12K per quater.  The oversight at the
third or subsequent operable unit is priced quarterly at $8K.

Federal Facility Docket

       All requests for implementation and maintenance of the Federal Agency Hazardous Waste
Compliance Docket may be made non-site specifically in CERHELP (C402). Funding requests
for docket activities should be entered as 'FD' for Federal  Facility docket. The lead in
CERHELP (C404)  must be 'FF.'
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RESERVED FOR CERCLIS GUIDANCE
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           CHAPTER 8
DOD GUIDANCE/PROGRAM DESCRIPTION
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                                 DISCLAIMER


THE POUCIES AND GUIDANCE IN THIS CHAPTER WERE PRODUCED BY THE DEPARTMENT OF
DEFENSE AND DO NOT NECESSARILY REFLECT THE VIEWS OR POLICIES OF EPA.
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                                       CHAPTERS
                          DOD GUIDANCE/PROGRAM DESCRIPTION


Defense Environmental Restoration Program Description

Defense Priority Model (54 Federal Register. October 20, 1989)

Defense and State Memorandum of Agreement

DoD Directive -- Hazardous Material Pollution Prevention

Management Guidance for Execution of the FY 1990/91 Defense Environmental Restoration Program
(DERP)

Memorandum on DoD's Policy on NPL Site Agreements

Memorandum on Agreements for NPL Sites - Interim Guidance Material
                                                                                  1/90
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DEFENSE ENVIRONMENTAL RESTORATION PROGRAM
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                           TABLE OF CONTENTS



Section                                                               Page



1.0   INTRODUCTION	  1



2.0   INSTALLATION RESTORATION PROGRAM 	  2



     2.1    IRP PRIORITIES	  2



3.0   FORMERLY USED PROPERTIES	  3



4.0   OTHER HAZARDOUS WASTE (OHW) PROGRAM	  3



5.0   INTERAGENCY AGREEMENTS	  4
i
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                 DEFENSE ENVIRONMENTAL RESTORATION PROGRAM1

                                 1.0    INTRODUCTION

       The Defense Environmental Restoration Program (DERP) was established in 1984 to
expand existing efforts to clean up contamination from hazardous waste sites.

       The Superfund Amendments and Reauthorization Act of 1986 (SARA) provided
continuing authority for the Secretary of Defense to carry out this program in consultation with
the Environmental Protection Agency (EPA).  Executive Order 12580 on Superfund
Implementation, signed by the President on January 23, 1987, delegated authority to the Secretary
of Defense for carrying out  the department's Environmental Restoration Program within the
overall framework of SARA and the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA). Funding for the DERP is provided by the Defense
Appropriations  Act.

       The DERP consists of three major elements:

                    Installation Restoration Program (IRP) - to identify, investigate, and clean
                    up  contamination from hazardous substances and wastes on installations
                    and at formerly used properties
              •     Other Hazardous Waste (OHW) Program - to fund studies and the purchase
                    of equipment to minimize the generation of hazardous wastes.  This
                    element also includes research, development, and demonstration of
                    technology related to hazardous waste
              •     Building Demolition and Debris  Removal (BDDR) - to demolish and
                    remove  unsafe buildings, structures, and debris at installations and at
                    formerly used properties

       The DERP is managed centrally by the Office of the Secretary of Defense and is carried
out by the Department of Defense (DoD) Components (military services and the Defense
Logistics Agency). The Deputy Assistant Secretary of Defense (Environment) provides policy
direction and oversight for the program. Each component retains the lead for activities at  its
installations.
       Based on the Defense Environmental Restoration Program Annual Report to Congress for
       Fiscal Year 1988. March  1989.
                                            1
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                     2.0    INSTALLATION RESTORATION PROGRAM


       The IRP is carried out consistent with procedures of the National Oil and Hazardous

Substances Pollution Contingency Plan (NCP) (40 CFR 300).  The basic steps of the program
follow:


                     Preliminary assessment/site inspection (PA/SI) - an installationwide study
                     to determine whether there are sites on the installation that may pose
                     hazards to public health or the environment

               •      Remedial investigation/feasibility study (RI/FS) - a comprehensive
                     investigation of sites identified in the PA/SI to determine the nature and
                     extent of contamination and the appropriate remedial actions

               •      Remedial design/remedial action (RD/RA) - design and implementation of
                     the  selected remedial actions to address problems at the site


       The number of installations included in the IRP has been increasing steadily since the
program's inception.  Emphasis was initially placed on large industrial facilities with the highest
probability for contamination, consistent with the department's "worst first" policy.  Efforts have

expanded yearly to include smaller installations with lower hazard potential. In addition,

installation re-assessments initiated to satisfy SARA requirements have identified and will

continue to identify additional sites not  previously included  in the program.


2.1           IRP PRIORITIES


       To effectively manage  the IRP, DoD must set priorities to ensure that sites are addressed

on a worst first basis, nationwide.  DoD currently uses a three-tiered system based on risk. In
this system, sites are assigned priorities according to the following levels:


               •      Priority A - sites that have been proposed or final listed on EPA's National
                     Priorities List (NPL), and other  sites that pose an imminent or substantial
                     danger to the public or the environment

               •      Priority B - sites  not posing as high a potential risk as Priority A and sites
                     not listed or proposed for listing on the NPL, but undergoing investigation
                     or remedial activity

               •      Priority C - all sites not classified as Priority A or B and non-site specific
                     activities that directly support the IRP


       Anticipating increased  competition for limited  resources as the DERP matures and sites

move into the more costly cleanup step, DoD developed a model  to assess the relative risk sites
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present. This model will assist in setting priorities for cleanups by using data gathered during the
investigative steps of the IRP.  DoD has worked with EPA and state organizations to refine the
model. It  was piloted in fiscal year (FY) 1989, and will be implemented in the FY 1990 program.

                          3.0   FORMERLY USED PROPERTIES

       The U.S. Army Corps of Engineers (COE) is the DoD executive agent for the
implementation of Environmental  Restoration Program operations at formerly used properties.
As executive agent, COE is responsible for hazardous waste cleanup activities, building
demolition and debris removal, and unexploded ordnance removals on lands formerly owned or
used by any of the DoD components. The investigation and cleanup procedures at formerly used
sites are similar to those at currently owned installations.  Before a site is considered eligible for
restoration by DoD, the origin of the contamination, land transfer, and current ownership must
be determined.

       Inventory efforts have identified 7,118 formerly used properties with potential for
inclusion in the program.  Inventory investigations at 2,815 of those properties have been
initiated, 1,966 are under way, and 849 have  been completed. Of these 849, 168 properties have
been funded by DoD for building  demolition and debris removal or cleanup of hazardous or toxic
contaminants.  Investigative or cleanup work  has either been completed or is ongoing at these
locations.

       This work includes 94 building demolitions and debris removals for unsafe buildings or
structures  on formerly owned or used properties, and 74 projects to clean up hazardous or toxic
contamination, including contamination from underground storage tanks formerly used for fuels
or solvents, or contamination from leaking polychlorinated biphenyl (PCB) transformers.
Included in the  74 are three projects for detection and removal of unexploded ordnance from
former target ranges or impact areas. In FY  1988, $29.5 million was spent on activities at former
sites.

                  4.0   OTHER  HAZARDOUS WASTE (OHW) PROGRAM

       The Other Hazardous Waste (OHW) Program, a second element of the DERP, examines
current operations to find cost-effective approaches to  DoD's waste management activities and to
prevent pollution at the point of generation.  Funds are provided for promoting DoD's initiative
for total quality management of hazardous waste.  This effort includes research, development,
and demonstration of pollution prevention and hazardous waste management technology,
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including unexploded ordnance detection and range clearance; investigation of alternative
products, specifications, acquisition, and operating practices; procurement of hazardous waste
reduction equipment; information exchange; and other environmental restoration and pollution
prevention activities. In March 1988, DoD published a report to Congress on the status of
hazardous waste minimization activities.  The report describes each DoD component's actions,
progress, and goals, and provides examples of accomplishments.  In FY 1988,  $26.1 million in
DERP funds was provided for these projects.

                           5.0   INTER AGENCY AGREEMENTS

       During FY 1988, efforts to establish federal facility agreements under SARA Section 120
increased. These interagency agreements (lAGs) were given a high priority because they establish
comprehensive installation-specific arrangements for proceeding with DoD's waste cleanup
activities under applicable federal and state laws. They also fully integrate the responsibilities of
EPA and state regulatory agencies. It is DoD's goal to have agreements in place for  all
installations with sites that are final listed on the NPL or are proposed for listing. Considerable
supporting efforts by the Office of the Deputy Assistant Secretary of Defense (Environment) and
DoD component headquarters offices occurred in parallel with the installation-specific
negotiations this year.  This effort was designed  to place the agreement's process on  a firm
foundation that would enable the  DoD components to enter into consistent, workable agreements
nationwide.  Extensive  field negotiations also took place.

       The most significant accomplishment of the agreement support effort  was the
development with EPA of model language that will serve as the nucleus for site-specific lAGs.
The model language resolved the most contentious national policy issues between DoD and EPA
when it was agreed  to in June  1988 after 6 months of negotiation. It lays out the core of a
cleanup management framework that allows for incorporation  of state concerns.  The Office of
the Deputy Assistant Secretary of Defense (Environment) issued guidance to the DoD components
in September 1988 regarding the state role in DoD cleanup activities through lAGs.  DoD also
opened up a dialogue on this topic with a state workgroup, which will lead to additional
guidance.  Workgroup efforts will continue in FY 1989. The DoD components held workshops
for their field personnel on the IAG model language and other aspects of working out federal
facility agreements, and issued additional guidance to direct field activities' efforts.

       The first IAG was signed in FY 1987 for Twin Cities Army Ammunition Plant,
Minnesota. By the  end of FY 1988, negotiations were under way at 23 other  installations.
Because the agreements now being developed are more comprehensive than required under SARA
-------
(for example, they may cover RI/FS activities for NPL and non-NPL sites on an installation),
their negotiation has proven resource intensive for all parties.
-------
43104
Federal Register /  Vol. 54, No.  202 / Friday. October 20,  1989 / Notices
SUMMARY: Under the provisions of the
Paperwork Reduction Act of 1980 (44
U.S.C. chapter 35), the Federal
Acquisition-Regulation (FAR)
Secretariat has submitted to the Office
of management and Budget (OMB) a
request to review and approve an
extension of a currently approved
information collection requirement
concerning OMB Report Control Number
9000-0028, Change Order Accounting.

ADDRESS: Send comments to Ms.
Eyvette Flynn, FAR Desk Officer, OMB,
Room 3235, NEOB, Washington, DC
20503.

FOR FURTHER INFORMATION CONTACT:
Ms. Linda Klein, Office of Federal
Acquisition Policy, (202) 523-3775.

SUPPLEMENTARY INFORMATION:

a. Purpose

  FAR clause 52.243-6, Change Order
Accounting, requires that, wherever the
estimated cost of a change or series of
related changes exceed $100,000, the
contracting officer may require the
contractor to maintain separate
accounts for each change or series of
related changes. The account shall
record all incurred segregable, direct
costs (less allocable credits) of work,
both changed and unchanged, allocable
to the change. These accounts are to be
maintained until the parties agree to an
equitable adjustment for the changes or
until the matter is conclusively disposed
of under the Disputes clause. This
requirement is necessary in order to be
able to account properly for costs
associated with changes in  supply and
research and development contracts
that are technically complex and incur
numerous changes.

b. Annual Reporting Burden

  The annual reporting burden is
estimated as follows: Respondents,
8,750; responses per respondent, 18; total
reporting hours, 13,230. The annual
recordkeeping burden is estimated as
follows: recordkeepers 8,750; hours per
recordkeeper 1.5; total recordkeeping
hours, 13,125. Total burden  hours 26,355.
  Obtaining Copies of Proposals:
Requesters may obtain copies from the
FAR Secretariat (VRS), Room 4041, GSA
Building, Washington, DC 20405,
telephone (202) 523-4755. Please cite
OMB Control No. 9000-0026. Change
Order Accounting.
  Dated: October 12,1989.
MargmrtJA-WUlU,
FAR Secretariat.
(FR Doc. 88-24729 Filed 10-19-89; 8:45 am]
                   DEPARTMENT OP DEFENSE
                   Office of the Secretary
                            Priority Model; Defense
                    Environmental Restoration Program
                    ACTION: Notice of plans to implement.

                    SUMMARY: The Department of Defense
                    has developed a Defense Priority Model
                    (DPM) which will be used to prioritize
                    remedial actions at hazardous waste
                    sites identified in the DoD Installation
                    Restoration Program (IRP). The IRP is
                    DoD's program to implement its
                    responsibilities for addressing
                    contamination associated with past
                    activities under 10 USC 2701-2707, the
                    Comprehensive Evironmental Response,
                    Compensation and Liability Act of 1980
                    (CERCLA), as amended the Resource
                    Conservation and Recovery Act and
                    counterpart State programs. DoD
                    proposed to use the new prioritization
                    method in a Federal Register Notice (52
                    FR 44204-44206, November 18, 1987) and
                    solicited comments from interested
                    parties. Comments were received from
                    three States and the U.S. Environmental
                    Protection Agency (EPA). This notice
                    summarizes the major comments,
                    advises that the DoD has revised the
                    model in response to the States' and
                    EPA's concerns and discusses DoD
                    plans to use the model.
                    FOR FURTHER INFORMATION CONTACT:
                    Ms Marcia W. Read, Office of the
                    Deputy Assistant Secretary of Defense
                    (Environment), 206 N. Washington,  St.,
                    Suite 100, Alexandria, VA 22314-2528,
                    telephone (202) 325-2211.
                    SUPPLEMENTARY INFORMATION: The
                    Defense Priority Model (DPM) is a waste
                    site scoring model that evaluates
                    relative risk based on information
                    gathered during the Preliminary
                    Assessment/Site Inspection (PA/SI) and
                    the Remedial Investigation/Feasibility
                    Study (RI/FS). DoD will use the scores
                    to assist in identifying those sites on its
                    installations which should receive
                    priority for Remedial Design/Remedial
                    Action (RD/RA). The DPM will help
                    assure that sites are addressed on a
                    "worst first" basis nationwide with
                    funding available from the Defense
                    Environmental Restoration Account.

                    I. Discussion
                     In 1976, the DoD realized that
                    contamination from industrial activities
                    and past waste disposal practices
                    existed on some of its installations. In
                    order to determine the extent of this
                    problem and to control contamination,
                    the DoD initiated the Installation
                    Restoration Program (IRP). The IRP
                    provides for evaluation of all DoD
                    installations to identify contamination
                    and to remediate potential threats to
human health and the environment
resulting from contamination. Because
of the large number of sites DoD-wide
and extensive investigations and
planning that precede cleanup, it is not
technically or economically feasible to
undertake remedial actions at all sites
simultaneously. The DoD does, however,
upon discovery, immediately initiate
response actions at sites which pose an
imminent and subtantial endangerment
to public health or the environment. DoD
policy is to remediate those sites which
pose the greatest potential for damage
first.
  To assist DoD and individual military
service program managers in assessing
the relative risk presented by sites on
DoD installations, the DoD has
developed the DPM. Technical
personnel in the military services will
apply the DPM to site data to produce a
score. This score, along with other
pertinent information such as regulatory
considerations, community impacts, and
programs efficiencies will be used to
detemine the relative priority of a  site
for RD/RA.

II. Comments on the Defense Priority
Model
  Comments on the DPM were received
from the U.S. EPA and three States.
Specific responses have been provided
directly to each commentor. The major
comments and a summary of DoD's
reply are presented below.
  All commentors expressed concern
that the DPM, as structured, did not
account for two important exposure
pathways, those involving air releases
and those involving direct contact with
contaminated soils. DoD responded to
these concerns by incorporating an air/
soil pathway into the DPM. This new
pathway is explained in the following
section (ID. Pathway Subscores).
  The U.S. EPA commented that the
DPM may not discriminate well among
sites with observed releases. DoD
believes that the DPM does discriminate
between sites with observed releases
with respect to their contaminant hazard
and receptor subscores. That is, the type
and concentration of contaminants (the
hazard subscore) and the population
potentially at risk (receptor subscore)
aid in discriminating among releasing
sites. Also, if containment features have
been added to the site since the
observed release occurred, the
pathways subscore can be reduced to
account for the assessed effectiveness of
the containment feature in preventing
future releases.
  The U.S. EPA commented that the
DPM does not take full advantage  of
data generated during the Remedial
-------
                   Federal Register /  Vol.  54. No.  202 / Friday. October 20.  1989 / Notices	43105
Investigation/Feasibility Study (RI/FS),
including documented evidence of
human exposure, waste quantity and
contaminant mobility. DoD believes that
the ground water pathway scoring does
require extensive use of RI/FS findings.
Data items such as depth to seasonal
high ground water table from the base of
the waste, infiltration potential and
permeability of the unsaturated zone are
scored. Regarding documented evidence
of human exposure, DoD advised that
the DPM is intended to be applied  to
any DoD contaminated site where
remedial action is planned. For many of
these sites (the non-National Priorities
List sites), no formal risk assessments
are not required, so detailed risk
exposure information will not
necessarily be available for use in DPM
scoring. The DPM was designed
accordingly.
  Regarding the issues of waste quantity
and contaminant mobility, DoD
responded that the DPM was designed
with simplicity and conservatism in
mind. Waste quantity was deliberately
excluded from the model because an
informal analysis revealed that scores
were very sensitive to waste quantity
and that individual scorers differed
greatly in their estimates of quantity.
Accurate quantity estimates are very
difficult to make at most sites and  for
that reason we believe a better
approach is to utilize measured
contaminant concentration levels.  Each
site is scored as an infinite source.
  Contaminant mobility is not directly
included as a scoring factor because
DoD believes that currently available
estimators of contaminant mobility are
not appropriate for universal
application. Mobility in hydrologic
media is highly dependent on the
chemical form of the contaminant  and
on the geochemicai environment
Contaminant mobility is considered
indirectly in the DPM. in that the
pathways subscore is highest where
contaminants have actually been
detected. This demonstrates that
contaminants are, in fact, mobile in
those media.
   EPA commented that the model's
three mile maximum distance for
receptor evaluation for the surface
water pathway may not be sufficient
since significant contamination has been
found more than three miles
downstream of Superfund sites. DoD
responded by extending the receptor
evaluation distance to five miles
downstream of a site.
   EPA commented that they were.
concerned that the DPM does-not
consider ground watsi use of deep .
aquifers. DoD responded that on*
scoring item (Ground Water Use of the
Uppermost Aquifer) is concerned only
with uses of the uppermost aquifer. This
is justified because the uppermost
aquifer is usually more susceptible than
other aquifers to ground water
contamination. However, all potentially
susceptible aquifers are considered.
regardless of depth, in the scoring items
concerned with ground water travel lime
to water supply wells and with the
population potentially at risk from
ground water contamination. These
latter items receive more weight in the
scoring than does the item concerned
solely with the uppermost aquifer.
  One State expressed a concern that
use of the DPM was inconsistent with
CERCLA, the Superfund Amendments
and Reauthorization Act (SARA) and
EPA guidelines and that the EPA Hazard
Ranking System (HRS) should be
utilized instead of the DPM. DoD
responded that the Department
recognizes that the DPM cannot
supplant any legal obligation under
CERCLA or the Defense Environmental
Restoration Program, and that DoD
intends to meet SARA mandated
schedules at its National Priorities List
(NPL) sites. However, with hundreds of
installations and thousands of sites
nationwide, DoD must have a
systematic process to insure its worst
sites receive priority attention. This is
the purpose for the development of the
DPM.
  DoD further responded that the
purposes of the DPM and HRS are
different and that the DPM will not be
used as a substitute for the HRS. The
DoD anticipates that EPA will continue
to apply the HRS to DoD facilities in
order to determine whether sites should
be proposed for the NPL In general, the
HRS is applied to sites for which
relatively little information is available,
e.g., after a PA/SI is conducted The
DPM. however, will be applied to a site
after an RI/FS has been conducted and
a laqje amount of data are available to
characterize conditions at the site. DoD
believes the relative priority of IRP sites
planned for cleanup can best be
assessed with RI/FS data in hand. In
addition, in the event that resource
constraints prohibit DoD from funding
all required Remedial Actions in a given
year, DoD will have a rational system
for identifying those sites which should
be funded first based on public health
and environmental needs.
  Another State commentor questioned
the rationale for applying the model-
after, RI/FS work has been completed-
The commentator pointed out tut the
RI/FS process provides the decision on.
whether or not to proceed with site
cleanup and what cleanup procaa»and> .
degree of cleanup will be used. DoD
responded that the DPM is not intended •
to be used as a yes/no decision tool but
will assist in prioritizing required
cleanups.

III. Pathway Subscores
  The pathway subscores used in the
DPM were explained in the initital
Federal Register Notice (52 FR 44204-
44206, November 18,1987). Subsequent
to that notice and in response to
concerns raised by certain States and
EPA, DoD has incorporated an air/soil
pathway into the model. An explanation
of the pathways currently in the model
follows:
  The pathway subscore of DPM rates
the potential for contaminants from a
waste site to enter surface water,
ground water and air or soil. If
contaminants from a site have already
been detected in one of these pathways.
a maximum score of 100 is assigned to
that pathway. If no contamination has
been detected, the potential for
contamination from the site is calculated
separately for the surface water, ground
water and air/soil pathways.
  The surface water pathway subscore
calculation starts as a weighted sum of
pathway characteristics based on:
—Distance to nearest surface water
—Net precipitation
—Surface erosion potential
—Rainfall intensity
—Surface permeability
—Flooding potential
  The ground water pathway subscore
calculation is parallel to the surface
water subscore calculation, but different
characteristics are summed before the
containment factor multiplier is applied.
The characteristics are:
—Depth to seasonal high ground water
  from the waste or contaminated zone
—Permeability of the unsaturated zone
—Potential for discrete features in the
  unsaturated zone to "short-circuit" the
  pathway to the watertable.
—Infiltration potential based on net
  precipitation and physical state of the
  waste
  The newly added air/soil pathway
 calculation is similar to the ground
 water and surface water calculation.
 The air/soil pathway characteristics are:
 —Average soil temperature
 —Net precipitation
 —Wind velocity
 —Soil porosity
 —Days per year with greater than 2LS
   mm precipitation
 —Site activity
   For each pathway, the characteristics
 are summed and « containment
 effectiveness  factor which characterize*
-------
4M06
Register j VdL -S*.  No. JC J ftjdaa/. October 3D. IBM /
present waste MaJaamaestts thai
applied.

IV. Future BoO Adfans
  The Department of Defense has
responded to the major UJHUJHIS of 1he
U.S.
mnrtifinrlAr mnrlnlihj innnqmraang
air/sad paisswsja^ei
distaaceLJIaOfdHB to
to assist ia priar%tiria| altos for
Remedial Oea«sV&eaadial Actioa
startup A Fuoal Year MOD.
  Copies 0f the revised OPM User'*
MaosAl «aa he obtained ^ytMofiaj to
Ms. Marcia Read, Office of the Deputy
Assistant Secretary «f/Defeaae
Suite 100. Aiexandna, VAi2314-2S3fl.
The Departzaeat -ako plans to final amr
to wack deseJy vaA the U.S. fiPA^od
the .Stales to jMM-iadiraMy K view «ad
impnave Ihe Jnodaiis -capability -toeank
sitesiiaaed en thnir impart na tmMir
health and^avkwuseat
  Scted: Otadbert?, W89.
L.M.«ymm,
Alternate OSD federal Ihgrster Liaison
Offtoer, OepirtmmtiifVejhue.
fC*DtDjgM* JI^LJIt9?UV^SMsnJi *VCX_1&_kJlBV •frAJ* -ovWi
[r I> I9(M#« vl^VVdW TUcQ XV—ii^^Oo, QiVU cuilj
MUJNO CODE sniMii-a


DEPARTMENT OFCDUGAXKNI

Educational Reaaarohand
Improvemant National Aduiaory
Council; Meeting

AQENOT. AatiDsal Adviaory <0bimcsi an
E4ac*fion4l Aejearcfaand munvwtnenj
ACTION: fufi 'QoaioH «
NaMend Admery OeunM «n
Educational
SUMMARY: Thiajwtice aetalorfhiLe
schedule and ajenda oT a fotthcflming
meeting of the 'National Advisory
Council on Educational Research and
Improvement This notice also describes
ihe functions of -die Council. Notice af
this meeting is required under section
10(a)(2) of ft* Federal Advisory
Committee Act.
DATE: November -9 end 10, *989.
ADDRESS: The Council will meet on
Novemberflfrom 11:00 a.m. to 5:00 p.m.
at the EffioTt Lyman Koom, Longfellow
Hall, Harvard Graduate "School of
Education, Appian Way, Cambridge,
Massachusetts. The Council will
continue its meeting on November lOin
University Room A. Royal Sortesta
Hotel, 5 Cambridge Parkway,
Cambridge, Mass, from 10:30 t-m.l0&00
p.m.
row nirmmn iMrnaamTnarniirafT
Marjr Grace Lecier, ikaabrMe Cnaotac.
           4504.
                     iaswisyannaiiieiiThe
                   i *otrtnorUiCQ T>y fioction ^tO§ ^f
           the *l W2 BQ uctftioit AfflMTufancntSf Pobniu
           LjVwvEr^fiVt 9S "flrncActeu *jy AixcTTtyicr
           EducaUen ftmeiiAiueals of ttW^Mi. 1.
           99^96.»U«.Cj2^.T1wt:
-------
  yuinno
TO:       State Waste Program Directors
          State Superfund Program Managers
          State Assistant Attorneys  General
                                     /,. /
FROM:     William C.  Child,  President6^1 v
          ASTSWMO

  RE:     Final Department of Defense -  State  Memorandum of
          Agreement (DSMOA)

DATE:     July 13,  1989
Enclosed is a final version of the model  Department  of  Defense - state
Memorandum of Agreement (DSMOA),  developed  by  the  Association of state
and Territorial Solid Waste Management officials  (ASTSWMO)  and the
Department of Defense (DoD) with  assistance from  representatives of
the National Association of Attorneys General  (NAAG)  and  the National
Governors'  Association (NGA).   The model  DSMOA is  the result of eight
months of negotiations between ASTSWMO, NAAG,  NGA and the DoD.  The
ASTSWMO Board of Directors by a vote of eleven to  three has accepted
and endorsed the model DSMOA as a reasonable mechanism  to facilitate
state/DoD interaction during the  cleanup  of hazardous waste
contamination at DoD installations.

When executed between States and  DoD, the model DSMOA provides for
States to be paid for their review and other services provided during
cleanup activities at DoD installations for both  National Priorities
List (NPL)  and non-NPL sites.   The model  DSMOA clearly  sets out the
types of review and 6ther services the states  will likely conduct at
both NPL and non-NPL sites.  An executed  DSMOA would also formalize  a
state's role in leveloping and using the  DoD's priority model, r--   ie
for designating lead agencies in  each State, establish  a  dispute
resolution process,  and set up a  process  for reopening  or terminating
the DSMOA.

while no organization can bind individual state decisions,  ASTSWMO has
negotiated what we believe is a sound document which would  apply  to
most States.  Each state has an opportunity to decide whether  it  :s
advantageous to enter into a DSMOA for the  DoD installations  in tr.i-
State.   DoD anticipates that,  unlike the  lAGs  for NPL sites,  each
State would not negotiate different DSMOA provisions.   It is  the  r. --
of both organizations that the model DSMOA  will be seen as  a  user'...
-------
document by a majority of States.  The Department of Defense has
reviewed and approved the enclosed model DSMOA.  We are encouraged by
this opportunity to work cooperatively with the DoD.

There are a few aspects of the model CSMCA which should receive
special attention.

First,  and most importantly,  the model DSMOA provides that a State is
eligible to receive up to one percent of the entire cost of all DoD
installation cleanups in a State that is funded by the Defense
Environmental Restoration Account (DERA) for costs the State incurs as
a result of the review and other services associated with the
cleanups.   The application of this approach is best understood
through an example:

     State X has three DoD installations with a total of four sites.
Three of the sites  are on the NPL.   The following is a list of the
sites and the anticipated cleanup costs.

     Installation A (NPL)                    15,000,000
     Installation B                           5,000,000
     Installation C
          Site 1 (NPL)                       10,000,000
          Site 2 (NPL)                       20,000,000

          TOTAL ESTIMATED CLEANUP COSTS:    $50,000,000

     Under the model DSMOA (Section I, paragraph D) the following
maximum funding would be available to state X.

     1.    Total funds available to state
          for the life of all of the
          cleanups                               $500,000

     2.    Maximum funds available in
          first year of DSMOA                   $125,000

     3.    Minimum funds available in first
          year of DSMOA                          $50,000
                     to
The model DSMOA thus allows a State to  "front end load" its work  at
the sites during the RI/FS period as the State finds it necessary.
The total cleanup cost estimates may be revised annually and the  total
funding available to the State adjusted accordingly.  A safeguard is
built in for the relatively unusual situation where the cost of a
cleanup is reduced after completion of  the RI/FS.   (See Section I,
paragraph F.)   The  process in this* case will be as  in the  following
example:

     1.    Original  cleanup estimate                $10,000,000

     2.    State expenditure ceiling  (9  1%)           $100,000

     3.    Actual State expenditure during RI/FS       $65,000
i
-------
           Post  RI/FS cleanup estimate              54,000,000

           Additional funding available to
           State  for use during remedial
           design and remedy implementation
           (1/4  of 1 percent of cleanup costs)         310,000
 Under  -he model DSMOA, States would be eligible for payment or
 reimbursement of the actual cost of state work which is covered in
 Section  I, paragraph B, not to exceed one percent of the total DoD
 costs  for all sites in the State during the lifetime of the cleanups.
 Note that this would allow a State to deal with a situation where
 actual costs at one site exceed one percent of the cleanup costs for
 that single site.

 Given  current program cost projections, through the DSMOA mechanism,
 it is  expected to make the states eligible to receive between $100 -
 S150 million for their activities at DoD installations.  states may
 also recover previous costs incurred between October 17, 1986 through
 the effective date of the DSMOA, again as long as the total state
 costs  are within the one percent figure.

 ASTSWMO  state representatives have carefully analyzed the adequacy of
 the funding provided under the DSMCA and several have determined that
 the funding level should be adequate to cover reasonably anticipated
 state  costs.   The flexibility of moving funds from one site to
 another  and from one year to another was viewed as crucial to the
 workability of the approach laid out in the model DSMOA.  From the DoD
 perspective, it was important to establish a predictable funding level
 that could fit into the DoD budgeting process.  If you have questions
 on how the funding process works please feel free to call Bharat
 Machur (ID, Chair, ASTSWMO Federal Facilities Task Force at 217-782-
 6760.

 A second important aspect of the model DSMOA is that it will utilize
 cooperative agreements to transfer the DoD funds to states.  It is
 anticipated that advance payment and/or reimbursement will be
 available under the cooperative agreement approach.

 A third key element of the model DSMOA is the funding levels only
 cover routine state activities related to a DoD cleanup funded under
 DERA.   Emergency removals and special arrangements where the state may
 conduct more of the work at a site are handled separately in section
 I, paragraphs H and I.            '

A fourth key element of the model DSMOA addresses funding priorities.
Currently DoD has adequate funding to meet all of its cleanup
 commitments.  However, it is anticipated the cost of cleanup work
will,  at some point, exceed the funding appropriated by Congress.   At
 which time,  priorities will have to be established.  The priority
 system could take into account not only which sites should be cleaned
-------
 up  first,  out  also the speed of cleanup  activities.  Priorities will
 ?.pply  to  RD/RA work rather than RI/F5 WOFK since the DoD priority
 rrdel  will  be  applied after tne RI/FS is completed.

 A suo-group of tne ASTSWMO Federal Faci.ity Task Force is currently
 wording with DoD  to assist in the design of t:ie priority system as
 well as the State role in implementing tne system.   The DSMOA
 recccni-35  tne role of a DoD priority system and requires DoD to
 :?nsider  information provided oy the States related to establishing
 priorities.

 Finally,  the model D3MOA establishes a dispute resolution process to
 resolve differences at all sites not covered by an IAG.

 During the meeting of tne ASTSWMO Board of Directors on April 23, 1989
 there was consensus that the approach proposed in the model DSMOA is a
 significant breakthrougn en the contentious issue of the
 responsibility of federal facilities to pay State review and other
 services  costs.  Further, entering into DSMOAs with DoD may help
 establish a better working relationship with DoD installations in your
 State.   DoD has agreed to, a*- t1-  end of a two year period, after
 initial DSMOAs are in place,  to .esume discussions with ASTSWMO to
 evaluate  the appropriateness and effectiveness of the DSMOA.  A list
 of the ASTSWMO Federal Facilities Tasx. Force participants is attached.
 You should feel free to contact any of the participants if you have
 additional questions.

 In conclusion,  the DoD is extending to state Agency Directors a
personal  invitation to enter into a DSMCA witn the Depaiiment under
 separate cover.  It has also instructed the military components to
nave tneir installations cooperate with the states to get the
 information you need to get a cooperative agreement (CA) application.
A copy of that memo is included as Attachment C of the DSMOA.  DoD
plans to nake arrangements for funds to ce available beginning in
October of this year.
i
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                     FEDERAL  FACILITIES TASK  FORCE
Bharat Mathur, Deputy Manager
Division of Land Pollution Control
Illinois Environmental Protection Agency
:;00 Churchill Road
P.O. BOX 19276
Springfield,  Illinois  62794-9276
(217) 782-6760

Bob Dullinger, Supervisor
Responsible Party/Unit II
site Response Section
Groundwater and Solid Waste Division
Minnesota Pollution Control Agency
520 Lafayette Road North
St. Paul, Minnesota  55155
;612) 296-7785

Alex R.  Cunningham, Chief Deputy Director
Toxic Substances Control Division
California Department of Health Services
P.O. Box 942732
400 P Street
Sacramento, California  94234-7320
(916) 323-2913

Howard Roitman, Section Chief
Remedial Programs
Hazardous Materials and Management Division
Colorado Department of Health
4210 East llth Avenue-
Denver,  Colorado  80220
(303) 331-4517 -

LeRoy C. Paddock, Assistant Attorney
 General
office of the Attorney General
525 Park street
St. Paul, Minnesota  55103
(612) 297-1140
Bob Goodman, Supervisor
Preliminary Assessment and Site inspections Unit
Hazardous Waste Investigation and cleanup Program
Department of Ecology
Mail Stop PV-11
Olympia, Washington  98504-8711
(206) 438-3077
Christine O'Donnell
state Superfund Liaison
National Governors
     Association
400 North Capitol st,NW
Suite 250
Washington,  D.C.  20001
(202)624-7871

Phil King, EPA/IPA
OERR/HSCD/SLCB
OS-220
Room 226, Southeast Mall
401 M street, s.w.
Washington,  D.C.  20460
(202)475-9840
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                 THE OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE
                             WASHINGTON. D.C. 20301-8000
PRODUCTION AND
   LOGISTICS                                               A":
       MEMORANDUM FOR DEPUTY ASSISTANT SECRETARY OF THE ARMY,
                        (ENVIRONMENT, SAFETY, AND OCCUPATIONAL HEALTH)
                        OASA (I&L)
                      DEPUTY DIRECTOR FOR ENVIRONMENT, OASN  (S&L)
                      DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE
                        (ENVIRONMENT, SAFETY, AND OCCUPATIONAL HEALTH)
                        SAF/RQ
                      DIRECTOR, DEFENSE LOGISTICS AGENCY  (DLA-W)

       SUBJECT:  Completion of the DSMOA with State Workgroup

            My staff and a state workgroup have just completed working
       out the details for the Defense and State Memorandum of Agreement
       for our cleanup activities.  The product of this effort is
       attached.  With your support along the way, I believe that we
       have come out with a very reasonable and advantageous construct
       for handling reimbursement of state services, funding priorities,
       resolving disputes, and determining state lead agencies.  Thank
       you for your involvement.

            The next steps are for the state workgroup to get broad
       state concurrence with the DSMOA by their membership and  for us
       to verify that we can use cooperative agreements as a
       reimbursement vehicle.  The state workgroup is shooting for broad
       state concurrence of the DSMOA by May 1.  My staff is actively
       pursuing the use of cooperative agreements.

            I'm pleased by our ability to devise a DSMOA  that
       accommodates the primary interests of DoD and the  States.
       Getting as many states as possible to enter these  agreements
       should greatly aid program implementation.

            Should your staff have any questions on this, my_point of
       contact remains Sam Napolitanoj (325-2211).
                                     William H. Parker,  III,  P.E.
                                Deputy Assistant Secretary  of Defense
                                           (Environment)
       Attachment
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                           DRAFT FINAL

 DEPARTMENT OF DEFENSE AND STATE MEMORANDUM OF AGREEMENT (DSMOA)


     In order to expedite the cleanup of hazardous waste sites on
Department of Defense (DoD)  installations within the State of 	
	 and ensure compliance with the applicable State law and
regulations of the State, DoD and the [State Agency] on behalf of
the State of [State] enter into this Agreement.

     Except as otherwise specified, the terms in this document
are unique to this document only.

                            SECTION I
                   REIMBURSEMENT  OF STATE  COSTS

A.   COVERAGE

     1.  This Agreement covers reimbursement of the costs
associated with providing State services to Department of Defense
installations for activities funded under the Environmental
Restoration, Defense (ER,D)  appropriation.  Installations covered
by this Agreement are those owned by the Federal government on
the effective date of the Agreement including installations with
sites on the National Priorities List (NPL) and installations
with sites not on the NPL.  The installations covered by this
Agreement are listed in Attachment A.  This Agreement does not
cover the costs of services rendered prior to October 17, 1986;
services at properties not owned by the Federal government; and
activities funded from sources other than ER,D appropriation.

     2.  Unless a site specific agreement provides otherwise,
this Agreement is the mechanism for payment of the costs
incurred by the State in providing the services listed in
paragraph B of this Agreement in relation to ER,D funded
activities at the installations covered by this Agreementr' Full
payment of State costs pursuant to this Agreement constitutes
final settlement of any claims the State of 	 may have  for
performance of services outlined in Section I(B) with respect  to
ER,D funded work carried out after October 17, 1986 at all of  the
installations covered by this Agreement, except for those State
costs covered by a site-specific agreement.

     3.  DoD agrees to seek sufficient funding through the DoD
budgetary process in accordance with Section II and to pay the
State of 	 for the services specified  in paragraph B for
all ER,D funded activities at installations covered by this
Agreement, subject to the conditions and limitations set forth in
this section.
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B.   SERVICES

     State services that qualify for payment under this Agreement
include the following types of assistance provided by the State
commencing at site identification and continuing through
construction, as well as any other activities that are funded by
ER,D:

          1.  Technical review, comments and recommendations on
          all documents or data required to be submitted to the
          State under an agreement between the State and a DoD
          Component, all documents or data that a DoD Component
          requests the State to review, and all documents or data
          that are provided by a DoD Component to the State for
          review as a result of a request from the State made
          under applicable State law.

          2.  Identification and explanation of State applicable
          or relevant and appropriate requirements related to
          response actions at DoD installations.

          3.  Site visits to review DoD response actions and
          ensure their consistency with appropriate State
          requirements, or in accordance with site-specific
          requirements established in other agreements between
          the State and DoD Component.

          4.  Participation in cooperation with DoD in the
          conduct of public education and public participation
          activities in accordance with Federal and State
          requirements for public involvement.

          5.  Services provided at the request of DoD in
          connection with participation in Technical Review
          Committees.

          6.  Preparation and administration of a cooperative
          agreement (CA) to implement this Agreement, including
          the estimates of State costs.

          [7. Other services that the State will provide that are
          set out in this Agreement or are included in
          installation-specific agreements.]

C.   ACCOUNTING PROCEDURES

     1.  Subject to the provisions of paragraphs D and E,
reimbursement of eligible State costs incurred between October
17,  1986, and the date of this Agreement shall be paid if the
costs have been documented using accounting procedures and
practices that reasonably identify the nature of the costs
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involved, the date the costs were incurred,  and show that the
costs were entirely attributable to activities at an installation
covered by this Agreement.

     2.  Payment of eligible State costs for services provided
after the effective date of this Agreement must comply with all
applicable Federal procurement and auditing requirements.

D.   MAXIMUM REIMBURSEMENT

     Reimbursement for services provided under paragraph B for
all installations included in Attachment A shall not exceed one
(1) percent of the estimated total costs for all of the work that
has been- funded by ER,D since October 17, 1986, and that will in
the future be funded by ER,D or a total of $50,000, whichever is
greater.  Estimates of cleanup costs developed under this
Agreement are provided solely for the purpose of calculating the
amount of funding the State is eligible to receive.

E.   ANNUAL BUDGET LIMITS

     The State may ordinarily request that up to a maximum of
twenty-five (25) percent of the total State services funds for
all installations listed in Attachment A be provided in
accordance with Section II during any fiscal year.  DoD may
approve  an annual budget limit that exceeds twenty-five  (25)
percent  of the total State services funds if the State
demonstrates the need for a higher percentage based on the scope
of the work projected during the fiscal year.  At least ten  (10)
percent  of a State services funding request will be provided in
accordance with Section II of this Agreement during a fiscal year
if the State requests an allocation of ten (10) percent or more
for services under this Agreement.  The State may carry over
unused funds into subsequent years.  If the cost of State
services during a fiscal year exceeds the annual budget limit,
the State may expend its own funds to pay the costs of those
services.  To the extent allowable under Federal procedures  for
cooperative agreements, the State may then seek reimbursement of
these costs in a subsequent year through a cooperative agreement
as long  as the total amount of the payments to the State does not
exceed the one  (1) percent ceiling, or the annual budget limit
for that fiscal year.  A payment schedule for reimbursement  of
past costs will be  devised by the State of 	 and the
DoD.

F.   ADJUSTMENT OF COST ESTIMATES

     The State or DoD may request a review of total estimated
ER,D funded project costs covered by this Agreement once during
the terms of a cooperative agreement.  The total project costs
shall be revised to reflect the  new estimates.  The ceiling  of
one  (1)  percent of the total project costs shall be adjusted
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based on the revisions of the total project costs since October
17, 1986.  If total project costs are estimated to be lower than
originally predicted, the State remains entitled to payment for
services rendered prior to the completion of the new estimate if
the services are within the ceiling applicable under the previous
estimate.  In addition, a State shall be eligible to receive
payment of up to one quarter (1/4) of one (1) percent of the ER,D
funded cost of the remedy included in the record of decision
(ROD) or equivalent document, or the amount that remains when the
amount of State services already claimed by the State for the
site is subtracted from one  (1) percent of the highest cost
estimate for cleanup of the site, whichever is less.

G.   PROCEDURES FOR REIMBURSEMENT

     'Procedures for State reimbursement through cooperative
agreements  (CAs) are as described in Attachment B and in
accordance with Office of Management and Budget  (OMB) Circulars
A-102, A-87, and A-128.  After a CA is awarded, the  [State
Agency] may submit a request for advance or reimbursement to DoD
on a quarterly basis.  DoD will process the request and transfer
funds in accordance with Circular A-102.  Within 60 days after
the end of each quarter, the [State Agency] shall submit to DoD a
status report, including cost summaries which directly relate
allowable costs actually incurred by the State under this
Agreement during the quarter for services at each installation.
Allowable costs shall be determined in accordance with this
Agreement and Circular A-87.  DoD shall reconcile continuing
awards and close out completed awards in accordance with Circular
A-102.  Auditing of States programs shall be accomplished in
accordance with Circular A-128.

H.   ADDITIONAL WORK

     When an installation requests that a State perform a
specific technical study or  similar technical support that could
otherwise be done by a contractor, and  [State Agency] agrees to
do the work, funding will be negotiated between the  installation
and the State outside of this Agreement.                 *'

I.   EMERGENCIES

     In an emergency situation involving a threat to public
health or the environment, the State must, unless the nature of
the emergency does not permit notification, notify the DoD
Component prior to taking removal action in order to be
reimbursed for its reasonable costs.  Reimbursement  of the State
for its work will be handled directly between the DoD component
and the State, and outside of this Agreement.  Disagreements that
arise under this paragraph are subject to the Dispute Resolution
process  in section IV.
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                           SECTION II
                 FUNDING AND THE PRIORITY SYSTEM -

A.  The Office of the Deputy Assistant Secretary of Defense
(Environment),  as the designee of the Office of the Secretary of
Defense responsible for carrying out the Defense Environmental
Restoration Program, and the DoD components shall seek sufficient
funding through the DoD budgetary process to carry out their
obligations for response actions at DoD installations within the
State.  Funds authorized and appropriated annually by Congress
under the ER,D appropriation in the DoD Appropriations Act shall
be the source of funds for all work contemplated by this
Agreement.

B.  Should the ER,D appropriation be inadequate in any year to
mee€ the total DoD requirements for cleanup of hazardous or toxic
contaminants, DoD shall establish priorities among sites in a
manner which maximizes the protection of human health and the
environment.  In the prioritization process, DoD shall employ a
model which has been and will be further developed with the
assistance of the States and the EPA.  Future enhancements or
refinements to the model shall occur in consultation with the
States and the EPA.  DoD shall also involve the States and the
EPA in its use of this prioritization model through review of
technical site data.  The DoD components shall receive and give
full consideration to information provided by the States
regarding factors to be considered in decisionmaking in the
annual prioritization process for allocating resources available
for cleanups.  The State accepts that a DoD prioritization system
developed and operated as described in this subparagraph is
needed and provides a reasonable basis for allocating funds among
sites in the interest of a national worst first cleanup program.
To that extent, the State will make every effort to abide by the
priorities developed thereunder.

C.  Nothing  in this Agreement shall be interpreted to require
obligation or payment with regard to a site remediation in
violation of the Anti-Deficiency Act  (31 U.S.C. 1341).   ;'


                           SECTION III
                          LEAD AGENCIES

     Each DoD Component shall designate an individual responsible
for managing remedial and removal actions for each installation
within the State.  This individual shall be responsible for
coordinating all tenant activities at the installation with
regard to the remedial and removal action program.  The
individual will also act as remedial project manager  (RPM) within
the meaning  of the National Contingency Plan  (40 CFR Part  300).
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     The State shall designate a lead State agency for each DoD
installation within the State.  (This agency may vary by
installation). The lead State agency for an installation shall
coordinate among other State agencies to represent a single State
position as to remedial/removal actions at the installation.  The
lead State agency shall designate a State Agency Coordinator
(SAC) who shall be the single point-of-contact between the
appropriate DoD component installation and the State regarding
State involvement in the remedial and removal actions program at
the installation.
                            SECTION IV
                        DISPUTE RESOLUTION

A.   The Remedial Project Manager  (RPM) and the State Agency
Coordinator  (SAC) shall be the primary points of contact to
coordinate the remedial and removal program at each military
installation within the State, including the resolution of
disputes.  With regard to installations or sites for which there
are executed Federal Facility Agreements under CERCLA section
120, dispute resolution provisions as specified in those
agreements shall govern.  For other sites, it is the intention of
the parties that all disputes shall be resolved at the lowest
possible level of authority as expeditiously as possible within
the following framework.  All timeframes  for resolving disputes
below may be lengthened by mutual  consent.

     1.  Should the RPM and SAC be unable to agree, the matter
     shall be referred  in writing  as  soon as practicable but in
     no event to exceed ten  (10) working days after the failure
     to agree, to the installation commander and the chief of the
     designated program office of  the lead State agency or their
     mutually agreed upon representatives designated in writing.

     2.  Should the installation commander and the chief of the
     designated program office of  the lead State agency or their
     mutually agreed upon representatives designated in writing
     be unable to agree within ten (10) working days,' the-Ttiatter
     shall be elevated to the head of the lead State agency and a
     counterpart member of the lead Service involved who shall be
     a general/flag officer or a member of the senior executive
     service.

     3.  Should the head of the lead State agency and the
     counterpart DoD representative fail to resolve the dispute
     within  20 working days the matter shall be referred to the
     Governor and the Service Secretary concerned for resolution.


B.  It is the intention of the parties that all disputes shall be
resolved in"this manner.  Alternative dispute resolution methods
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may be used.  In the event that the Governor and the Service
Secretary are unable to resolve a dispute,  the state retains any
enforcement authority it may have under State and -Federal law.


                            SECTION V
                            REOPENER

     The terms of this Agreement may be modified at any time by
mutual Agreement of the parties.  If a party requests the
Agreement to be reopened but the other party does not concur, the
matter will be referred to an individual designated in writing by
the signators to this agreement.  In the event they fail to agree
within 10 working days the matter will be referred to the
signators of this agreement or their successors in office.  If no
resolution  is reached within 20 days,  the Agreement shall not be
reopened.
                            SECTION VI
                           TERMINATION

     This Agreement may be terminated by either party at the
expiration of any cooperative agreement entered into pursuant to
this Agreement if the party seeking termination has notified the
other party in writing at least 90 days prior to the expiration
of the cooperative agreement.  After receiving a notice of
termination, a party may invoke the dispute resolution process in
Section V.  Each signator of the agreement may involve other
officials to whom they report in the process of resolution.  The
parties by mutual agreement may also refer the matter to the
Governor of the State of _ and his (her) counterpart
within the Department of Defense.  Alternative dispute
resolution methods may be used.  Failing their ageement, this
Agreement shall be considered terminated as of the date the
cooperative agreement expires.
 State  signature block for           DoD signature block
 Agency signing on behalf of
 the  State
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                           FINAL DRAFT


          DOD AND STATE MEMORANDUM OF AGREEMENT  (DSMOA)


   ATTACHMENT A - DoD Installations Covered by this Agreement


                    State of 	



Army


     1.  e.g., Fort 	


     2. - etc.


   ,j
Navy


     1.  e.g., Naval Air Station 	


     2.  etc.



Air Force


     1.  e.g., 	  Air Force Base


     2.  etc.



Defense Logistics Agency


     1.  e.g., Defense Supply Center 	


     2.  etc.
INSTALLATIONS MAY BE ADDED TO THIS LIST PERIODICALLY AS NECESSARY
IN ACCORDANCE WITH SECTION V, REOPENER.
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                           FINAL DRAFT

          DOD AND STATE MEMORANDUM OF AGREEMENT (DSMOA)

        ATTACHMENT B - PROCEDURES FOR STATE REIMBURSEMENT


o    The Deputy Assistant Secretary of Defense for Environment
(DASD(E))  and the Head of the Agency signing on behalf of the
State will sign the DSMOA.

o    The- DSMOA is the overarching agreement of commitment between
the DoD and the State, but does not obligate or commit funds.

o ^ Reimbursement will be accomplished, using Federal procedures
for cooperative agreements (CAs), with States that have signed
DSMOAs.  Eligible activities are limited to those authorized for
the Defense Environmental Restoration Program  (DERP), and funded
by the Defense Environmental Restoration Account (DERA),  Sections
2701 et seq, of Title 10 USC, and as specified in the DSMOA.
     -    Reimbursement will commence as soon as possible with
DERA funds.

o    [DoD policies and procedures for processing CA applications
and payments will be developed with input from the States and
announced in a Federal Register notice as soon as possible.
          In general, these activities will be centralized in the
ODASD(E).
     -    It is anticipated that these policies and procedures
will encompass the following:  who may apply; what can be funded;
selection criteria for awards; submission procedures and closing
dates for receipt of applications; and grantee responsibilities.
          Within this framework, it is anticipated that
monitoring and quarterly reporting procedures for States' program
status and financial status will be developed.]

o    Administration of CAs will be in accordance with Office of
Management and Budget (OMB) Circular A-102 procedures (revised
March 3, 1988).
          A State will submit a complete application package for
Federal assistance, consisting of Standard Form 424 (SF 424) and
attachments, including a proposal narrative, the signed DSMOA,
and a project management plan.  The State's application must also
include a description of the type and amount of support services
that the State plans to provide for each installation covered in
the DSMOA for the specific award period of the CA.
          CAs will be awarded for a term of 2 years, based on an
annual estimate of requirements.  Applications will be accepted
after signature of the DSMOA by both parties; DoD processing time
for applications is expected to be two months.
           The DASD(E) will accept the application, review it,
and make a decision as to the award.  This CA agreement,  when
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signed by both the DASD(E) and the Head of the Agency signing on
behalf of the State, comprises the contractual relationship
between the DoD and the State.
          States may then submit Requests for Advance or
Reimbursement using Standard Form 270 to the DASD(E) on a
quarterly basis.  [An alternative approach using a letter of
credit with the Department of Treasury will also be considered.
The DASD(E) will process the request in accordance with standard
DoD accounting procedures;  DoD processing time for payments is
expected to be two months.]

o    Allowable costs will be determined in accordance with OMB
Circular A-87 procedures  (proposed revisions of October 14,
1988).  Specific services to be provided by the States will be as
described in the DSMOA.

o  ;- Auditing of States programs will be accomplished in
accordance with OMB Circular A-128 procedures  (April 12, 1985).
     The following  is additional information regarding the
general procedures  that DoD plans to use in implementing  DSMOAs
and CA's with the States:

     1.  DoD DASD(E) will  invite States to sign DSMOAs and  submit
applications for CAs.
     2.  DASD(E) will send a memorandum  (Attachment  C) to the  DoD
Components  (Army, Navy, Air Force, DLA, and other  DoD agencies)
asking them to  cooperate with the States and compile necessary
data.  The States and Installations will communicate directly  on
response activities anticipated to take place  over the next two
years and on the total DERA cost estimate.
     3.  DoD Components will use their Chain-Of-Command to
develop and pass on data to DASD(E):  Component Headquarters will
give the message to their  Major Commands  (e.g., Army Materiel
Command) , and the Major Commands will forward  the  message tro
their Installations (e.g., Sacramento Army Ammunition Depot).
     4.  The Components will provide information,  obtained  from
their Installations and Major Commands, to DASD(E) by-State.
     5.  Each State contacts DASD(E) about its desire to  have  a
DSMOA and CA, and works with DoD to have State-specific
information inserted into  the provisions where indicated  in the
model language  and  to fill out the CA application.
     6.  DASD(E) and the State sign the  DSMOA  and  the CA.
     7.  The State  submits requests for payment in advance  based
on anticipated  workload or for reimbursement of services  provided
under the CA, on a  quarterly basis.
     8.  Quarterly  In-Process Reviews  (IPRs) will  be held between
DASD(E) staff and the State agency.  IPRs will include State
progress reports concerning activities and funding.
     9.  CA audits  will be carried out in accordance with OMB
Circular A-128.
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                           FINAL DRAFT

          DOD AND STATE MEMORANDUM OF AGREEMENT (DSMOA)

             ATTACHMENT C - LETTER TO DOD COMPONENTS
MEMORANDUM FOR DEPUTY ASSISTANT SECRETARY OF THE ARMY,
                 ENVIRONMENT, SAFETY AND OCCUPATIONAL
                 HEALTH, OASA (I&L)
               DEPUTY DIRECTOR FOR ENVIRONMENT, OASN  (S&L)
               DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE
                 (E,S&OH) SAF/RQ
               DIRECTOR, DEFENSE LOGISTICS AGENCY (DLA-W)

SUBJECT:  DoD Components' Cooperation with the States for
          Cooperative Agreements on Site Cleanups


     In anticipation of DoD-State Memoranda of Agreements
(DSMOAs) for site cleanups becoming a reality this summer, I
request that you inform the appropriate people in your Component
that they should be ready to respond to requests from the States
for information necessary for the States to prepare applications
for cooperative agreements (CAs) in accordance with Attachment B
of the standard DSMOA language.

     Once a State and I have signed a DSMOA or started the
process towards signature, the lead State agency will be
contacting the remedial project managers for the installations
listed in Attachment A of the DSMOA to determine what DERA-funded
response actions they have planned for the period of the proposed
CA (the next two years).  The State will use this information to
prepare its application for a cooperative agreement and its-.'
request for advance or .reimbursement.  Your representatives
should also make available to the States information regarding
the activities planned through the life of the program- and the
estimated cost and schedule of the DERA-funded response actions.
This will help the State plan all its activities under the
lifetime cap.

     This information is generally available from your program
planning activities, preparation of the FY 90/91 DERA budget, and
anticipated RI/FS results.  States will already have much of this
information if they are receiving expedited notice of program
activities and participating in such areas as:  review of program
planning and reporting documents, meetings of technical review
committees, negotiation and implementation of interagency
agreements, and public participation activities.
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     Since the CAs will be centrally administered by DOD, we
request that the Components give my office the same information
that they give to the States within three weeks of- giving it to
the States.

     Since the CAs are envisioned to run for two years, the
information on planned program activities and cost estimates will
need to be updated every two years.  During the CA period, if
there is a significant change in response activities or estimated
costs, the Component should notify this office and the State as
soon as possible.

     Please provide a copy of the attached standard DSMOA
language to those who will be responsible for providing the
necessary information to the States and to us.

   >" We will also provide more detailed information in the
following documents as they are developed:

     o  DoD Policies and Procedures for the Cooperative
Agreements Program under DSMOAs

     o  DoD Directive on responsibilities and requirements for
the Cooperative Agreement Program

     o  Federal Register notice announcing the program and the
availability of funds.

     Cooperation and communication are paramount to the success
of this program.  I encourage you and your installations to make
every effort to continually build a good working relationship
with your counterparts in the State agencies.  I believe that a
cooperative effort with the States, to include mutual
consideration of each others comments and program objectives, is
the key to cost-effective and timely execution of the Defense
Environmental Restoration Program.

     Thank you for your continuing efforts in making the program
a success.  If you have questions or comments, Sam Napolitano
(202-325-2211) remains my point of contact for DSMOAs, and Andres
Talts (202-325-2214) has the lead in carrying out the -CA Program.
                              William H. Parker, III, P.E.
                         Deputy Assistant Secretary of Defense
                                     (Environment)


Attachment  {The DSMOA will be attached to the letter to the
Components.  The letter alone will be Attachment C to the DSMOA]       ^
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 DEPARTMENT OF DEFENSE AND STATE MEMORANDUM OF AGREEMENT (DSMOA)


     In order to expedite the cleanup of hazardous waste sites on
Department of Defense (DoD) installations within the State of 	
	 and ensure compliance with the applicable State law and
regulations of the State, DoD and the [State Agency] on behalf of
the State of [State] enter into this Agreement.

     Except as otherwise specified, the terms in this document
are unique to this document only.


                            SECTION I
                   REIMBURSEMENT OF STATE COSTS

A.   COVERAGE

     1.  This Agreement covers reimbursement of the costs
associated with providing State services to Department of Defense
installations for activities funded under the Environmental
Restoration, Defense (ER,D) appropriation.  Installations covered
by this Agreement are those owned by the Federal government on
the effective date of the Agreement including installations with
sites on the National Priorities List (NPL) and installations
with sites not on the NPL.  The installations covered by this
Agreement are listed in Attachment A.  This Agreement does not
cover the costs of services rendered prior to October 17, 1986;
services at properties not owned by the Federal government; and
activities funded from sources other than ER,D appropriation.

     2.  Unless a site-specific agreement provides otherwise,
this Agreement is the mechanism for payment of the costs
incurred by the State in providing the services listed in
paragraph B of this Agreement in relation to ER,D funded
activities at the installations covered by this Agreement.  Full
payment of State costs pursuant to this Agreement constitutes
final settlement of any claims the State of 	 may have for
performance of services outlined in Section I(B) with respect to
ER,D funded work parried out after October 17, 1986, at all of
the installations ^covered by this Agreement, except for those
State costs covered by a site-specific agreement.

     3.  DoD agrees to seek sufficient funding through the DoD
budgetary process in accordance with Section II and to pay the
State of 	 for the services specified in paragraph B for
all ER,D funded activities at installations covered by this
Agreement, subject to the conditions and limitations set forth in
this section.
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B.   SERVICES

     State services that qualify for payment under this Agreement
include the following types of assistance provided by the State
commencing at site identification and continuing through
construction, as well as any other activities that are funded by
ER,D:

          1.  Technical review, comments and recommendations on
          all documents or data required to be submitted to the
          State under an agreement between the State and a DoD
          Component, all documents or data that a DoD Component
          requests the State to review, and all documents or data
          that are provided by a DoD Component to the State for
          review as a result of a request from the State made
          under applicable State law.
                                               «
          2.  Identification and explanation of State applicable
          or relevant and appropriate requirements related to
          response actions at DoD installations.

          3.  Site visits to review DoD response actions and
          ensure their consistency with appropriate State
          requirements, or in accordance with site-specific
          requirements established in other agreements between
          the State and DoD Component.

          4.  Participation in cooperation with DoD in the
          conduct of public education and public participation
          activities in accordance with Federal and State
          requirements for public involvement.

          5.  Services provided at the request of DoD in
          connection with participation in Technical Review
          Committees.

          6.  Preparation and administration of a cooperative
          agreement  (CA) to implement this Agreement, including
          the estimates of State costs.

          [7. Other services that the State will provide that are
          set out in this Agreement or are included in
          installa'tion-specific agreements. ]

C.   ACCOUNTING PROCEDURES

     1.  Subject to the provisions of paragraphs D and E,
reimbursement of eligible State costs incurred between October
17, 1986, and the date of this,Agreement shall be paid if the
costs have been documented using accounting procedures and
practices that reasonably identify the nature of the costs
involved, the date the costs were incurred, and show that the
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costs were entirely attributable to activities at an installation
covered by this Agreement.

     2.  Payment of eligible State costs for services provided
after the effective date of this Agreement must comply with all
applicable Federal procurement and auditing requirements.

D.   MAXIMUM REIMBURSEMENT

     Reimbursement for services provided under paragraph B for
all installations included in Attachment A shall not exceed one
(1) percent of the estimated total costs for all of the work that
has been funded by ER,D since October 17, 1986, and that will in
the future be funded by ER,D or a total of $50,000, whichever is
greater.  Estimates of cleanup costs developed under this
Agreement are provided solely for the purpose of calculating the
amount of funding the State is eligible to receive.

E.   ANNUAL BUDGET LIMITS

     The State may ordinarily request that up to a maximum of
twenty-five (25) percent of the total State services funds for
all installations listed in Attachment A be provided in
accordance with Section II during any fiscal year.  DoD may
approve an annual budget limit that exceeds twenty-five  (25)
percent of the total State services funds if the State
demonstrates the need for a higher percentage based on the scope
of the work projected during the fiscal year.  At least ten  (10)
percent of a State's services funding request will be provided in
accordance with Section II of this Agreement during a fiscal year
if the State requests an allocation of ten (10) percent or more
for services under this Agreement.  The State may carry over
unused funds into subsequent years.  If the cost of State
services during a fiscal year exceeds the annual budget limit,
the State may expend its own funds to pay the costs of those
services.  To the extent allowable under Federal procedures for
cooperative agreements, the State may then seek reimbursement of
these costs in a subsequent year through a cooperative agreement
as long as the total amount of the payments to the State does not
exceed the one (1) percent ceiling, or the annual budget limit
for that fiscal year.  A payment schedule for reimbursement of
past costs will be  devised by the State of 	 and the
DoD.

F.   ADJUSTMENT OF COST ESTIMATES

     The State or DoD may request a review of total estimated
ER,D funded project costs covered by this Agreement once during
the terms of a cooperative agreement.  The total project costs
shall be revised to reflect the new estimates.  The ceiling of
one (1) percent of the total project costs shall be adjusted
based on the revisions of the total project costs since October
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17,  1986.  If the total project costs following the Record of
Decision (ROD)  or equivalent document are lower than previously
estimated,  the State remains entitled to payment as follows:

     a.    the State is entitled to payment of all services
     rendered prior to completion of the new estimate so long as
     they are within the ceiling of the previous estimate; and,

     b.    reimbursement of future incurred costs for providing
     services,  at the option of the state, in an amount either:

          1.   up to a total of previous and future costs of one
               (1) percent of the revised estimate; or,

          2.   the lesser of:

               i)   one quarter (1/4) of one (1) percent of the
                    post ROD or equivalent documents costs; or,

               ii)  the remaining balance of the one (1) percent
                    entitlement under the previous estimate.

G.   PROCEDURES FOR REIMBURSEMENT

     Procedures for State reimbursement through cooperative
agreements  (CAs)  are as described in Attachment B and in
accordance with Office of Management and Budget (OMB) Circulars
A-102, A-87, and A-128.  After a CA is awarded, the  [State
Agency]  may submit a request for advance or reimbursement to DoD
on a quarterly basis.  DoD will process the request and transfer
funds in accordance with Circular A-102.  Within 60 days after
the end of each quarter, the [State Agency] shall submit to DoD a
status report, including cost summaries which directly relate
allowable costs actually incurred by the State under this
Agreement during the quarter for services at each installation.
Allowable costs shall be determined in accordance with this
Agreement and Circular A-87.  DoD shall reconcile continuing
awards and close out completed awards in accordance with Circular
A-102.  Auditing of States programs shall be accomplished in
accordance with Circular A-128.

H.   ADDITIONAL WORK
                  w
     When an installation requests that a State perform a
specific technical study or similar technical support that could
otherwise be done by a contractor, and  [State Agency] agrees to
do the work, funding will be negotiated between the  installation
and the State outside of this Agreement.
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I.   EMERGENCIES

     In an emergency situation involving a threat to public
health or the environment, the State must, unless the nature of
the emergency does not permit notification, notify the DoD
Component prior to taking removal action in order to be
reimbursed for its reasonable costs.  Reimbursement of the State
for its work will be handled directly between the DoD component
and the State, and outside of this Agreement.  Disagreements that
arise under this paragraph are subject to the Dispute Resolution
process in section IV.

                            SECTION  II
                 FUNDING AND THE PRIORITY SYSTEM

A.  The Office of the Deputy Assistant Secretary of Defense
(Environment), as the designee of the Office of the Secretary of
Defense responsible for carrying out the Defense Environmental
Restoration Program, and the DoD components shall seek sufficient
funding through the DoD budgetary process to carry out their
obligations for response actions at DoD installations within the
State.  Funds authorized and appropriated annually by Congress
under the ER,D appropriation in the DoD Appropriations Act shall
be the source of funds for all work contemplated by this
Agreement.

B.  Should the ER,D appropriation be inadequate in any year to
meet the total DoD requirements for cleanup of hazardous or toxic
contaminants, DoD shall establish priorities among sites in a
manner which maximizes the protection of human health and the
environment.  In the prioritization process, DoD shall employ a
model which has been and will be further developed with the
assistance of the States and the EPA.  Future enhancements or
refinements to the model shall occur in consultation with the
States and the EPA.  DoD shall also involve the States and the
EPA in its use of this prioritization model through review of
technical site data.  The DoD components shall receive and give
full consideration to information provided by the States
regarding factors to be considered in decisionmaking in the
annual prioritization process for allocating resources available
for cleanups.  The State accepts that a DoD prioritization system
developed and operated as described in this subparagraph is
needed and provides a reasonable basis for allocating funds among
sites in the interest of a national worst first cleanup program.
To that extent, the State will make every effort to abide by the
priorities developed thereunder.

C.  Nothing in this Agreement shall be interpreted to require
obligation or payment with regard to a site remediation in
violation of the Anti-Deficiency Act (31 U.S.C. 1341).
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                           SECTION III
                          LEAD AGENCIES

     Each DoD Component shall designate an individual responsible
for managing remedial and removal actions for each installation
within the State.  This individual shall be responsible for
coordinating all tenant activities at the installation with
regard to the remedial and removal action program.  The
individual will also act as remedial project manager (RPM) within
the meaning of the National Contingency Plan (40 CFR Part 300).

     The State shall designate a lead State agency for each DoD
installation within the State.  (This agency may vary by
installation). The lead State agency for an installation shall
coordinate among other State agencies to represent a single State
position as to remedial/removal actions at the installation.  The
lead State agency shall designate a State Agency Coordinator
(SAC) who shall be the single point-of-contact between the
appropriate DoD component installation and the State regarding
State involvement in the remedial and removal actions program at
the installation.

                            SECTION  IV
                        DISPUTE  RESOLUTION

A.   The Remedial Project Manager (RPM) and the State Agency
Coordinator  (SAC) shall be the primary points of contact to
coordinate the remedial and removal program at each military
installation within the State, including the resolution of
disputes.  With regard to installations or sites for which there
are executed Federal Facility Agreements under CERCLA section
120, dispute resolution provisions as specified in those
agreements shall govern.  For other sites, it is the intention of
the parties that all disputes shall be resolved at the lowest
possible level of authority as expeditiously as possible within
the following framework.  All timeframes for resolving disputes
below may be lengthened by mutual consent.

     1.  Should the RPM and SAC be unable to agree, the matter
     shall be referred in writing as soon as practicable but in
     no event to exceed ten  (10) working days after the failure
     to agree, to,the installation commander and the chief of the
     designated program office of the lead State agency or their
     mutually agreed upon representatives designated in writing.

     2.  Should the installation commander and the chief of the
     designated program office of the lead State agency or their
     mutually agreed upon representatives designated in writing
     be unable to agree within^ten  (10) working days, the matter
     shall be elevated to the head of the lead State agency and a
     counterpart member of the lead Service involved who shall be
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     a general/flag officer or a member of the senior executive
     service.

     3.   Should the head of the lead State agency and the
     counterpart DoD representative fail to resolve the dispute
     within 20 working days the matter shall be referred to the
     Governor and the Service Secretary concerned for resolution.

B.  It is the intention of the parties that all disputes shall be
resolved in this manner.  Alternative dispute resolution methods
may be used.  In the event that the Governor and the Service
Secretary are unable to resolve a dispute, the State retains any
enforcement authority it may have under State and Federal law.

                            SECTION V
                             REOPENER

     The terms of this Agreement may be modified at any time by
mutual Agreement of the parties.  If a party requests the
Agreement to be reopened but the other party does not concur, the
matter will be referred to an individual designated in writing by
the signators to this agreement.  In the event they fail to agree
within 10 working days the matter will be referred to the
signators of this agreement or their successors in office.  If no
resolution is reached within 20 days,  the Agreement shall not be
reopened.

                            SECTION  VI
                           TERMINATION

     This Agreement may be terminated by either party at the
expiration of any cooperative agreement entered into pursuant to
this Agreement if the party seeking termination has notified the
other party in writing at least 90 days prior to the expiration
of the cooperative agreement.  After receiving a notice of
termination, a party may invoke the dispute resolution process in
Section V.  Each signator of the agreement may involve other
officials to whom they report in the process of resolution.  The
parties by mutual agreement may also refer the matter to the
Governor of the State of 	 and his(her) counterpart
within the Department of Defense.  Alternative dispute
resolution methods may be used.  Failing their agreement, this
Agreement shall be- considered terminated as of the date the
cooperative agreement expires.
State signature block for           DoD signature block
Agency signing on behalf of
the State
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          DOD AND STATE MEMORANDUM OF AGREEMENT  (DSMOA)
   ATTACHMENT A -  DoD Installations  Covered by this Agreement
                    State of 	
Army
     1.   e.g., Fort
     2.   etc.
Navy
     1.  e.g., Naval Air Station
     2.  etc.

Air Force
     1.  e.g., 	  Air Force Base
     2.  etc.

Defense Logistics Agency
     1.  e.g., Defense Supply Center
     2.  etc.
INSTALLATIONS MAY BE ADDED TO THIS LIST PERIODICALLY AS  NECESSARY
IN ACCORDANCE WITH SECTION V, REOPENER.
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          DOD AND STATE MEMORANDUM OF AGREEMENT (DSMOA)

        ATTACHMENT B - PROCEDURES FOR STATE REIMBURSEMENT

o    The Deputy Assistant Secretary of Defense for Environment
(DASD(E)) and the Head of the Agency signing on behalf of the
State will sign the DSMOA.

o    The DSMOA is the overarching agreement of commitment between
the DoD and the State, but does not obligate or commit funds.

o    Reimbursement will be accomplished, using Federal procedures
for cooperative agreements (CAs), with States that have signed
DSMOAs.  Eligible activities are limited to those authorized for
the Defense Environmental Restoration Program (DERP),  and funded
by the Defense Environmental Restoration Account (DERA), Sections
2701 et seq, of Title 10 USC, and as specified in the DSMOA.
          Reimbursement will commence as soon as possible with
DERA funds.

o    DoD policies and procedures for processing CA applications
and payments will be developed with input from the States and
announced in a Federal Register notice.
          In general, these activities will be centralized in the
ODASD(E).
          It is anticipated that these policies and procedures
will encompass the following:  who may apply; what can be funded;
evaluation criteria for awards; submission procedures and closing
dates for receipt of applications; and State responsibilities.
          Within this framework, it is anticipated that
monitoring and quarterly reporting procedures for States' program
status and financial status will be developed.

o    Administration of CAs will be in accordance with Office of
Management and Budget (OMB) circular A-102, Grants and
Cooperative Agreements with State and Local Governments, and
Title 32 CFR 278, Office of the Secretary of Defense,  Uniform
Administrative Requirements for Grants and Cooperative Agreements
to State and Local Governments.
          A State will submit a complete application package for
Federal assistance, consisting of Standard Form 424 (SF 424) and
attachments, including a proposal narrative, the signed DSMOA,
and a project mana'gement plan.  The State's application must also
include a description of the type and amount of support services
that the State plans to provide for each installation covered in
the DSMOA for the specific award period of the CA.
          CAs will be awarded for a term of two years, based on
an annual estimate of requirements.  Applications will be
accepted after signature of the DSMOA by both parties; DoD
processing time for applications is expected to be two months.
           The DASD(E) will accept the application, review it,
and make a decision as to the.award.  This CA agreement, when
signed by both the DASD(E) and' the Head of the Agency signing on
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behalf of the State, comprises the contractual relationship
between the DoD and the State.
          States may request funds in accordance with the methods
outlined in OMB Circular A-102 and 32 CFR 278.  These documents
provide for the following methods of payment:   (I)  Advances
(Letter of Credit), (2) Reimbursement, and (3) Working Capital
Advances.  A State may request a payment method in its
cooperative agreement application.

o    Allowable costs will be determined in accordance with OMB
Circular A-87, Cost Principles for State and Local Governments.
Specific services to be provided by the States will be as
described in the DSMOA.

o    Auditing of States programs will be accomplished in
accordance with OMB Circular A-128, Audits of State and Local
Governments.
     The following is additional information regarding the
general procedures that DoD plans to use in implementing DSMOAs
and CA's with the States:

     1.  DoD DASD(E)  will invite States to sign DSMOAs and submit
applications for CAs.
     2.  DASD(E) will send a memorandum (Attachment C) to the DoD
Components (Army, Navy, Air Force, DLA, and other DoD agencies)
asking them to cooperate with the States and compile necessary
data.  The States and Installations will communicate directly on
response activities anticipated to take place over the next two
years and on the total DERA cost estimate.
     3.  DoD Components will use their Chain-Of-Command to
develop and pass on data to DASD(E):  Component Headquarters will
give the message to their Major Commands (e.g., Army Materiel
Command), and the Major Commands will forward the message to
their Installations  (e.g., Sacramento Army Ammunition Depot).
     4.  The Components will provide information, obtained from
their Installations and Major Commands, to DASD(E) by State.
     5.  Each State contacts DASD(E) about its desire to have a
DSMOA and CA, and works with DoD to have State-specific
information inserted into the provisions where indicated in the
model language and to fill out the CA application.
     6.  DASD(E) and the State sign the DSMOA and the CA.
     7.  The State submits requests for payment in advance based
on anticipated workload or for reimbursement of services provided
under the CA, on a quarterly basis.
     8.  Quarterly In-Process Reviews  (IPRs), or alternative
arrangements by mutual consent, will be held between DASD(E)
staff and the State agency.  IPRs will include State progress
reports concerning activities «nd funding.
     9.  CA audits will be carried out in accordance with OMB
Circular A-128.
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                    THE OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE

                                 WASHINGTON. O.C. 20101-«000
PRODUCTION AND                                     ATTACHMENT C

   LOGISTICS

                                                      July 18,  1989
         MEMORANDUM FOR DEPUTY ASSISTANT SECRETARY OF THE ARMY,
                          ENVIRONMENT, SAFETY AND OCCUPATIONAL
                          HEALTH, OASA (I&L)
                        DEPUTY DIRECTOR FOR ENVIRONMENT, OASN  (S&L)
                        DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE,
                         --(E,S&OH), SAF/RQ
                        DIRECTOR, DEFENSE LOGISTICS AGENCY (DLA-W)

         SUBJECT:  DoD Components' Cooperation with the States for
                   Cooperative Agreements on Site Cleanups


              I an sending letters to the directors of State environmental
         agencies inviting them to enter into DoD and State Memoranda of
         Agreements (DSMOAs).  There has been a recent strong State
         expression of interest in them.  I request that you inform the
         appropriate people  in your Component that they should be ready by
         mid-July to respond to requests from the States for information
         necessary for the States to prepare applications for cooperative
         agreements (CAs) in accordance with Attachment B of the model
         DSMOA language.

              Once a State and I have signed a DSMOA or started the
         process towards signature, the lead State agency can be expected
         to contact persons  or offices designated by the Components as
         being "lead" for the Installation Restoration Program (IRP) for
         the installations listed in Attachment A of the DSMOA.  States
         will need to determine what DERA-funded activities the
         installations have  planned for the period of the proposed CAs
         (FY90/91).  Each State will use this information to help prepare
         its application for a cooperative agreement and its request for
         funds.  The designated installation representative should also
         give information to the State regarding probable DERA-funded
         activities through  the life of the program, including total
         estimated cost.  This will help the State plan its activities
         under the lifetime  cap.  The cost information should be
         acceptable to you before it is provided to the States.

              This information is generally available from your program
         planning activities, FY90/91 DERA budget development data, and
         anticipated RI/FS results.  States should also have much of this
         information if they are receiving notice of program activities
         and participating in such areas as:  review of program planning
         and IRP documents,  meetings of technical review committees,
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negotiation and implementation of interagency agreements,  and
public participation activities.

     Since the CAs will be centrally administered by DoD,  we
request Components to give my office the same total DERA cost
information you provide the States.  We would also like a summary
of planned activities for the next two years (FY90/91)  that the
installation IRP representatives give to the States.  Please try
to provide this within four weeks of giving it to the States.
Since the CAs are envisioned to encompass two years, the
information on planned program activities and cost estimates will
need to be updated every two years.  During the CA period, if
there is a significant change in response activities or estimated
costs, the Component should notify the State as soon as possible.
I will be providing you additional guidance on this matter in the
next two weeks.

     Please provide a copy of the attached model DSMOA
language to those who will be responsible for providing the
necessary information to the States.

     We will also provide more detailed information in the
following documents as they are developed:

     o  DoD Policies and Procedures for the Cooperative
     Agreements Program under DSMOAs

     o  Federal Register notice announcing the program and the
     availability of funds.

     Cooperation and communication are paramount to the success
of this program.  I encourage you and your installations to make
every effort to continually build a good working relationship
with your counterparts in the State agencies.  I believe that a
cooperative effort with the States, to include mutual
consideration of each others comments and program objectives, is
the key to cost-effective and timely execution of the Defense
Environmental Restoration Program.

     Thank you for your continuing efforts in Baking the program
a success.  If you have questions or comments, Sam Napolitano
remains my point of contact for DSMOAs, and LtCol Ken Cornelius
has the lead in carrying out the CA Program.  You may reach
either of them at (202) 325-2211 (Autovon: 221-2214) in our
offices in Alexandria, Virginia.
                                                   1^^*-.
                       Ov

     William H. Parker, III, P.E.
Deputy Assistant Secretary of Defense
            (Environment)
Attachment
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                            DOD DIRECTIVE

              HAZARDOUS MATERIAL POLLUTION PREVENTION


     On July 27, 1989, the Deputy Secretary of Defense signed a
DoD Directive on Hazardous Material Pollution Prevention.   It
establishes a policy that emphasizes the prevention of pollution
rather than the "end-of-pipe" solutions that the Department of
Defense has relied on in the past.  The directive applies across
the Department, at all levels.

     This directive establishes a DoD policy that hazardous
materials shall be selected, used, and managed over their life
cycle so that the DoD incurs the lowest required cost to protect
human health and the environment. The preferred method of doing
this is to avoid or reduce the use of hazardous material.   Where
use cannot be reasonably avoided, DoD personnel are to apply
management practices that avoid harm to human health and the
environment.

      The Hazardous Material Pollution Directive requires that:

     o  Directives, regulations, manuals, specifications, and
     other documents that provide DoD's operating procedures
     incorporate guidance on hazardous material issues.

     o  The Services and defense agencies further develop and
     maintain effective programs for reducing the adverse effects
     of hazardous materials.  They will examine alternatives
     available to better manage hazardous materials, such as
     redesigning processes to obviate the need for hazardous
     material use, and implement them.

     o  Adequate reporting exists to evaluate results.

     o  Information exchange occurs on pollution prevention.

     o  Cooperation occurs with environmental agencies pursuing
        the same goals.

     The Directive is a strong addition to an extensive amount of
waste minimization work already underway within the Services and
defense agencies, especially within the logistics community. It
provides a way to integrate environmental concerns into the
Department's every day work.  Its part of a greater effort DoD
has to be recognized as an environmental leader among federal
agencies.
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                         Department of Defense
                           DIRECTIVE
                                                              July  27,  1989
                                                              NUMBER 4210.15
                                                              DSD(A)
SUBJECT:   Hazardous Material Pollution Prevention

References:   (a)  DoD Instruction 7041.3,  "Economic Analysis and Program
                 Evaluation for Resource  Management," October 18, 1972
             (b)  DoD 7750.5-M, "DoD Procedures  for Management of Information
                 Requirements," November  1986,  authorized by DoD Directive
                 7750.5, August 7, 1986
             (c)  DoD 5025.1-1, "Department of Defense Directives System
                 Annual Index," January 1989, authorized by DoD Directive
                 5025.1, December 23, 1988

A.  PURPOSE

    This  Directive establishes policy, assigns responsibilities, and prescribes
procedures for  hazardous material pollution prevention (HHPP).

B.  APPLICABILITY AM) SCOPE

    This  Directive applies to:

    1. the  Office of the Secretary of Defense  (OSD), the Military Departments,
the Joint Chiefs of Staff (JCS), the Joint Staff,  the Unified and Specified
Commands, the Inspector General of the Department  of Defense (IG, DoD), the
Uniformed Services University of the Health Sciences (USUHS), the Defense
Agencies, and the DoD Field Activities (hereafter  referred to collectively
as "DoD Components").  The term "Military Services," as used herein, refers
to the Army, Navy, Air Force, and Marine Corps.

    2. Operations supported by appropriated and nonappropriated  funds.

C.  DEFINITIONS

    The terms used in this Directive are defined in enclosure 1.

D.  POLICY

    It is DoD policy that hazardous material shall be selected, used, and
managed over its  life cycle so that the Department of Defense incurs the
lowest cost required to protect human health and the environment.  The pre-
ferred method of  doing this is to avoid or reduce  the use of hazardous
material.  Where  use of hazardous material may not reasonably be  avoided,
users shall follow regulations governing its use and management as required
by appropriate  DoD issuances.  In the absence of regulations, users shall
apply management  practices that avoid harm to human health  or the environment.
Emphasis must be  on less use of hazardous materials in processes  and products,
as distinguished  from end-of-pipe management of hazardous waste.
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£.  RESPONSIBILITIES

    1.  The Heads of DoD Components shall know hov the regulation of hazardous
material affects their operations and hov their decisions relative to hazardous
material affect subsequent operations.  They shall take actions to carry out
the requiresents of this Directive.

    2.  The Assistant Secretary of Defense  (Production and Loiistics) (ASD(PSL))
•hall promote hazardous Materials pollution prevention within the Department
of Defense by ensuring that:

        a.  Functional area DoD issuances (policies, Directives, Instructions,
Regulations, Manuals, specifications, etc.) incorporate appropriate guidance on
hazardous material issues.

        b.  The DoD Components have effective programs for reducing the adverse
effects of hazardous material.

        c.  Adequate reporting exists to evaluate the results of actions taken
to implement this Directive.

        d.  Military Services and Defense Agencies are advised of areas needing
more emphasis.

        e.  Hazardous material issues affecting the stability of the industrial
base are recognized and addressed.

        f.  Information exchange on hazardous material improvements exists within
the Department of Defense.
           , *
        g.  The Department of Defense cooperates with Federal, State, and local
agencies promoting hazardous material reduction.

        h.  The Defense Acquisition Board,  Production and Logistics (DAB P&L)
Committee periodically is apprised of the progress of implementation of this
Directive and of any issues or conflicts related to hazardous material that may
require the attention of the DAB P&L Committee in accordance with enclosure 2.

        i.  Lead offices are designated, as necessary, to carry out those
responsibilities.

    3.  The Assistant Secretary of Defense  (Force Management and Personnel)
(ASDCFM&P)) shall assist the ASD(P&L) in implementing this Directive in areas
related to hazardous material that are under the purview of ASD(FM&P).

    A.  The Secretaries of the Military Departments and the Heads of Defense
Agencies shall:

        a.  Develop and revise, as necessary, a Hazardous Material Pollution
Prevention Plan to implement this Directive, monitor implementation, and ensure
that subordinate commands take appropriate  actions to carry out the policy in
section D., above.
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        b.  Report progress on implementing this Directive to the ASD(P&L)  and
the ASD(RttP).                                                           '   °

F.  PROCEDURES

    1.  The ASD(P&L), or designees, shall:

        a.  Ensure that appropriate OSD functional guidance exists on HMPP  by:

            (1)  Identifying hazardous material management issues for which
functional guidance is needed.

            (2)  In conjunction with the OSD proponent, determining  the  most
appropriate vehicle for dissemination of functional guidance.

            (3)  In the case where OSD functional guidance is needed, assisting
the OSD proponent to develop that guidance.

            (4)  In the case where Military Service or Defense Agency guidance
is needed, advising the Service or Agency of the need and a possible course of
action to satisfy the need.

        b.  Ensure that a reporting mechanism or structure exists to provide the
documentation needed to monitor implementation by:

            (1) Working with the Service or Agency lead office, designated  in
accordance with paragraph F.5.*., below, to obtain and compile appropriate
information.

          . (2) Avoiding an additional reporting burden through use  of  data and
data systems used by the DoD Components to manage their own programs and such
data as the DoD Components are required to provide to regulatory Agencies.

            (3) Making maximum use of computer-based management information
systems to provide up-to-date data.

            (4) Requesting additional data only if information obtained in
accordance with subparagraphs F.l.b(l), (2), and  (3), above, is inadequate
to evaluate the DoD Components' actions.

        c.  Schedule and preside over annual status briefings presented by  the
Military Services and Defense Agencies.  Give affected Military Services and/or
Defense Agencies sufficient notice of their selection to provide a  briefing and
the topics to cover in the briefing.

        d.  Prepare annual progress reports for and brief the DAB P&L Committee
on the status of actions taken by the DoD Components, including the ASD(P&L),
to implement this Directive.

        e.  Periodically bring to the attention of the DAB P&L Committee any
current hazardous material issue impacting DoD operations or any problem in
implementing this Directive on which the DAB P&L  Committee may need to take
action, including advice from the DAB P&L Committee on priority of actions  to
produce OSD guidance.
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    2.  The ASD(FM&P), or designees, shall assist the ASDCP&L), as appropriate,
to conduct the functions described in subsection F.I., above.

    3.  Proponents of OSO functional guidance shall cooperate with the ASD(PiL)
in intefrating hazardous Material guidance into their issuances by:

        a.  Assisting the ASDCP&L), or designees, in determining the need for
functional area guidance as required by subparagraph F.I.a.(3), above.

        b.  When necessary, designating an action officer to be in charge of
development of specific guidance (for which the ASD(P&L), or designees, shall
provide assistance).

        c.  When necessary, incorporating guidance into appropriate DoD issuances.

    4.  The Heads of DoD Components shall ensure that their organizations:

        a.  Modify functional area efforts, procedures, guidance documents, or
common practices to improve the way that hazardous Material or the issues
caused by hazardous Material are managed.

        b.  Where a document allows for the use of hazardous material or a
process is using hazardous material and a less hazardous substitute is, or could
be, available, revise the document, process or operating procedure, to facilitate
the use of the substitute, in accordance with the policy in section D., above.

        c.  Consistent with DoD Instruction 7041.3 (reference  (a)), evaluate
hazardous material decisions by economic analysis techniques that match the
magnitude of the decision being made, considering cost factors and intangible
factors, as applicable.

        d.  Begin economic analyses of hazardous material decisions at the
earliest possible stage of the life cycle and modify analyses when better
information becomes available.

        e.  Record, retain, and provide to appropriate authorities, ss necessary,
information that describes actions taken on hazardous material issues and the
effect of the actions on the conduct of operations including, where possible:

            (1)  Before and after data on hazardous material used or disposed
and corresponding financial data, such as capital invested, return on investment,
operating costs, and labor costs.

            (2)  Records of work load, descriptive of mission, that allow
comparison of hazardous material decisions on a production basis.

            (3)  Narrative descriptions of actions and accomplishments,
especially when actions, such as toxicity reduction or specification change,
do not lend themselves to quantitative measure.

    5.  The Heads of Military Services and Defense Agencies shall:

        a.  Designate a lead office to coordinate their actions on this
Directive.
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        b.  Cooperate with the ASD(P&L) effort, required in paragraph F.l.b.,
above, to obtain current information, including quantitative data, that
describes the value of actions taken under this Directive.

        c.  As requested by the ASD(P&L), as required under paragraph F.l.c.,
above, provide an annual briefing, accompanied by a briefing book, on selected
aspects of actions taken to achieve hazardous material pollution prevention.

G.  INFORMATION REQUIREMENTS

    1.  The Annual Progress Report included in this Directive is exempt from
licensing in accordance with paragraph E.4.b. of DoD 7750.5-M (reference (b)).

    2.  All briefing and reporting requirements of this Directive are canceled
at the end of 6 years from the effective date of this Directive, unless continued
by formal revision to this Directive.

H.  EFFECTIVE DATE AND IMPLEMENTATION

    1.  This Directive is effective immediately.  Forward two copies of imple-
menting documents to the Under Secretary of Defense (Acquisition) within 180 days.

    2.  Within 45 days from the effective* date of this Directive, the Secretaries
of the Military Departments and the Heads of Defense Agencies shall designate
a lead office for coordinating implementation of this Directive.
                                                UWOOD
                                          Deputy  Secretary of Defense
Enclosures  -  2
   1.  Definitions
   2.  DAB P&L Committee  Charter
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                                                                4:10.15  (End  I)
                                  DEFINITIONS

1.  Alternative*.  Ways of  reducing the adverse effects of hazardous material.

    a.  Alternatives, a* applied to hazardous material decision-Baking,  include,
but are not limited to, such possibilities as substituting less hazardous or
nonhazardous material; redesigning a component such that hazardous material is
not needed in its manufacture, use, or maintenance; modifying processes  or
procedures; restricting users; consumptive use; on-demand supply; direct
ordering; extending shelf-life; regenerating spent material; downgrading and
reuse of spent material; use of waste as raw material in other manufacturing;
and combinations of those factors.

    b.  Alternatives are to be analyzed in a "could cost" approach.  The
decision-maker should consider what would be the lowest amount the decision
could cost by overcoming barriers to getting the job done and at the same time
ensuring protection of human health and the environment.

2.  Cost Factors.  The expenses and cost avoidances associated with hazardous
material that may be reduced to monetary terms, which includes future liability.

    a.  Cost factors refer  to the direct and indirect costs attributable to
hazardous material that are encountered in operations such as acquisition,
manufacture, supply, use, storage, inventory control, treatment, recycling,
emission control, training, work place safety, labeling, hazard assessments,
engineering controls, personal protective equipment, medical monitoring,
regulatory overhead, spill  contingency, disposal, remedial action, and
liability.

    b.  Accounting in current decisions for potential future liability,  such
as might accrue because of  a decision to landfill a hazardous waste, requires
application of risk and uncertainty analysis.  Potential future cost may be
expressed as an expected present value or analyzed by sensitivity techniques.
That does not mean an organization must stop lawful disposal until a major risk
study is performed.  However, current decisions should maximally consider the
effects future environmental problems might have on future costs and defense
performance.

3.  Economic Analysis.  An  evaluation of the costs associated with the use of
hazardous material and potential alternatives, which is conducted in accordance
with DoD Instruction 7041.3 (reference (c)).

    a.  An economic analysis is not a specific, step-by-step procedure that
can be applied by rote to all cases of analyzing whether to use a hazardous
material.  Rather, organizations shall be guided by basic principles of
economics and informed judgement.  Any good engineering economy, decision
analysis, or microeconomics text book may serve as a guide.  An appropriately
rigorous analysis of the costs and benefits of alternatives is a tool to help
informed decision-making.   The depth of analysis is a decision to be made by
personnel who are employed  to make such decisions.  There is no one formula.
There is no absolutely right way to do it.
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    b.  In ••king • decision on hazardous Material with the help of economic
analysis, DoD Components shall be guided by cases in court and legislation
on hazardous materials that clearly establish that potential cost does not
end with contractual change of hands of a regulated hazardous Mterial.

4.  Functional Areas.  The operations or areas of responsibility that affect  or
are affected by the use of hazardous Material.  These areas include, but are
not limited to, budget and fiscal planning; legal support; research and develop-
ment; weapons systems acquisition; weapons systems maintenance; material and
performance specifications and standards; design handbooks and technical manuals;
maintenance and repair procedures; industrial processes; procurement policy;
contracting provisions; new material identification; public works operations;
construction; management of munitions, chemical agents, and propellants; medical
and other personnel support; safety and occupational health; transportation;
logistics analysis; supply; warehousing; distribution; recycling; disposal;
spill prevention, control, and cleanup; contaminated site remediation; staffing;
education and training; information exchange; public affairs; general admini-
stration; and oversight.

5.  Functional Guidance.  The inclusion in functional area issuances .(Directives,
Instructions, regulations, etc.) of the application of the basic principles of
a functional area to the specific issues caused by hazardous material.

    a.  Functional guidance is the type of information that is found in typical
DoD issuances, applied specifically to hazardous material, where problems caused
by hazardous material make such specific guidance necessary.  Within OSD, func-
tional guidance is usually promulgated in issuances covered by DoD 5025.1-1
(reference (c)).

    b.  An example of functional guidance would be the incorporation, into a
supply policy directive, of the following statement:

        "wholesale inventories of hazardous material with a
        manufacturers shelf-life of 6 months or less shall not
        be maintained.  Such material shall be procured for direct
        vendor delivery to the using activity.  Retail inventory
        managers shall preclude disposal of hazardous material due
        to shelf-life expiration by maintaining minimum levels to
        support planned operations."

    c.  Equally as important, but not as obvious, would be functional guidance
that could be published in a comptroller issuance on how to account for the
risk of future liability from hazardous waste disposal in conducting economic
analyses.

6.  Hazardous Material.  Anything that due to its chemical, physical, or
biological nature causes safety, public health, or environmental concerns
that result in an elevated level of effort to manage it.

    a.  There are numerous existing definitions of hazardous material in place
for various reasons.  In this Directive, the term hazardous material  is used
in the context of the management strategy to improve the quality of defense as




                                         1-2
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                                                                4210.15 (Encl  1)
described in definition 9, below.  For that purpose, hazardous material describes
a universe of materials that cause the Department of Defense problems because
of associated human health or environmental concern and for which management
improvements may be made.

    b.  This Directive establishes no new technical definition of hazardous
material.  It does not challenge any legal definition.  It does not replace
any existing administrative definition.  What matters is not whether something
fits precisely in a definition or whose definition it is, but whether it may
be better managed to mitigate the problems it causes and improve the quality
of defense.

7.  Intangible Factors.  Influences bearing on the use or effects of hazardous
material, which may not be reduced to monetary terms.

    a.  The quality of defense and the quality of environment both have intangible
characteristics that are not mutually exclusive but which could be overriding
factors in a hazardous material issue.  Other intangible factors include public
emotion and potential legislation.

    b.  Factors that may not be reduced to monetary terms should be limited, in
decision analysis, and then considered, as appropriate.

8.  Life Cycle of a Hazardous Material.  The period starting when the use or
potential use of hazardous material is first encountered and extending as long
as the actual material or its after effects, such as a discarded residual in
a landfill, have a bearing on cost.

    a.  In.-the case of weapons systems acquisition, the life cycle starts when
the system is first envisioned.  Effects of the use of hazardous material on
later operations and maintenance are to be considered.  The same holds true
for a new use of a hazardous material by any DoD Component.

    b.  Uhere the hazardous material is already in general use, the life cycle
starts when the material is first encountered by any subpart of a DoD Component
that must deal with it.  Upon encountering the hazardous material or its effects,
the DoD Component is not to be confined or constricted by what has gone before
but must view its association with the material by what comes after, in terms of
human health and environmental problems and their associated costs, and what
alternatives that organization has to lessen those problems and costs.

    9.  Hazardous Material Pollution Prevention (HMPP) Plan.

        a.  A HMPP Plan may take various forms including a typical plan of
action and milestones outlining responsibilities, one or more Service or Agency
regulations, a combination of efforts undertaken by various commands monitored
by a common coordinating office, or other variations so long as the appropriate
formal implementing document is issued.

        b.  The HMPP Plan shall include, at a minimum, the following elements:
procedures for informing Service or Agency line commanders of issues and progress;
participation of critical functional staff offices such as systems acquisition,
design, specification proponents, etc.; participation of major commands or pri-
mary field activities; provisions for reviewing functional issuances and making


                                         1-3
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appropriate •edifications; • process for analyzing existing operations or pro
cesses for waste Minimization potential; a Method for funding vaste reduction
projects; a process for subordinate commands to report data that Measures pro
gress; a commitment to information exchange; and a policy of cooperation with
public agencies involved in waste reduction, pollution prevention, or waste
minimization.
                                           1-4
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                                                        4210.15 (End  2)


                       THE UNDER SECRETARY OF DEFENSE

                            WASHINGTON. DC 20J01
                                                       17 SEP
ACQUISITION                                               * ' ^


                        Defense Acquisition Board

               Production and  Logistics Committee Charter


    SUBJECT:     Production  and Logistics  Committee

    References: (a)DoD Directive 5134.1,  "Under Secretary of Defense
                    (Acquisition),* February 10, 1987
                (b)DoD Directive 5000.1,  "Defense Acquisition
                    System," September 1,  1987
                (c)DoD Instruction 5000.2, "Defense Acquisition
                    System Procedures," September 1, 1987
                (d)DoD Directive 5000.49,  "Defense Acquisition
                    Board," September 1, 1987
                (e)DoD Directive 5105.18,  "Department of Defense
                    Committee Management Program," March  20, 1984

    A.  PURPOSE

        This charter  implements relevant  sections of references  (a)
    through (e) and establishes the Production and Logistics
    Committee as a  standing operating committee of the Defense
    Acquisition Board (DAB) with mission,  terms of reference,
    composition, responsibilities and authorities, operating
    procedures and  administrative arrangements as stated below.

    B.  DEFINITIONS

        1.  Department of Defense Acquisition System.   A single
    uniform system  whereby  all equipment,  facilities, and services
    are planned, designed,  developed, acquired, maintained, and
    disposed of within the  Department of  Defense (DoD).  The system
    entails establishing policies and practices that govern
    acquisitions, determining  and prioritising resource
    requirements, directing and controlling the process,
    contracting, and  reporting to Congress.

        2.  DoD Components.   The Office of the Secretary of Defense
    (OSD); the Military  Departments; the  Organisation of the Joint
    Chiefs of Staff (OJCS); the Unified and Specified Commands;  the
    Defense Agencies, to include the Strategic Defense Initiative
    Organisation; and DoD Field Activities.

    C.  MISSION

        The mission of the  Production and Logistics Committee  is to
    facilitate accomplishment  of the responsibilities and functions
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assigned to the Under Secretary of Defense for Acquisition
OSD(A).  Operating in support of the Defense Acquisition Board
and the USD(A), the Committee shall be the priaary forua for DoD
Components to identify and resolve issues and to develop
recommendations on operating and policy aspects of the DoD
Acquisition System for the following areasi

    1.  Production management;

    2.  Manufacturing  technology;  and •

    3.  Logistics support.

D.  TERMS OF REFERENCE

    Specific tasks to be performed in accomplishing this mission
include, but are not limited tox

    1.  Promoting coordination,  cooperation,  and mutual
understanding of all matters related to assigned activities,
particularly those involving cross-servicing, within DoD and
between DoD and other Federal Agencies and with Allied Nations.

    2.  Recommending policy and  procedural initiatives  that
streamline and improve the efficiency and effectiveness of the
DoD Acquisition System.

    3.  Developing and assessing the  potential of  alternative
near- and long-term acquisition strategies, plans, resource
levels-, and priorities.

    4.  Identifying  issues  and developing recommendations  on
policy  and guidance scatters.

    5.  Reviewing, studying, resolving,  or developing
recommendations on matters assigned by the DAB or OSD(A), or
selected by the Committee Chair.

E.  COMPOSITION

    1.  Committee Chair.  The Production and Logistics  Committee
Chair shall be the Assistant Secretary of Defense (Production
and Logistics).

    2.  Membership.   In addition to the Chair, permanent members
will be senior civilian or military officials appointed by the
following officess

        a.  Organisation of the  Joint Chiefs of Staff
        b.  Under  Secretary of Defense (Policy)
        c.  Assistant Secretary of Defense (Comptroller)
        d.  Assistant Secretary of Defense (Force Management and
            Personnel)
        e.  Assistant Secretary of Defense (Program Operations)
                              2-2
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       f.  Director, Defense Research and Engineering
       9.  Director, Operational Test and evaluation
       h.  Air Porct Acquisition Executive
       i.  Army Acquisition Executive
       j.  Navy Acquisition Executive
       It.  Director, Program Analysis and Evaluation
       1.  Deputy Onder Secretary of Defense  (International
           Programs and Technology)
       •.  Deputy Onder Secretary of Defense  (Tactical Warfare
           Programs)
       n.  Director* Defense Logistics Agency
       o.  Director, Strategic Defense Initiative Organization
       p.  Deputy Director, Defense Research  and Engineering
           (Test and Evaluation)
       q.  Deputy Assistant Secretary of Defense (Logistics)
       r.  Deputy Assistant Secretary of Defense (Production
           Support)
       s.  Deputy Assistant Secretary of Defense (Systems)
       t.  Chairman, OSD  Cost Analysis Improvement  Group

    3. Invited Participants/Advisors.  Representatives from DoD
Components and other Government Agencies not  listed above/ at
the invitation of the Committee Chair, may participate in
committee activities involving matters in which that Component.
or Agency has a significant interest, or their presence is
required because of the specific matters being addressed.

P.  RESPONSIBILITIES AND  AUTHORITIES

    1. The Committee Chair, after ensuring  that all matters
have been comprehensively addressed, will forward
recommendations to the DAB and DAE, and highlight disagreements
and minority positions on all recommendations forwarded for
decision.

    2. Committee members  are  responsible  for  representing their
Components on all matters addressed by the Committee and for
proposing initiatives and issues for Committee consideration.

    3. Unanimous agreement  on matters  in dispute shall be
considered binding on all parties after concurrence of the DAB
Chair.

    4. The Committee Chair  is authorized  to establish panels
and working groups to carry out Committee assigned projects and
actions as may be necessary to discharge effectively the
Committee's mission.  Each panel or working group will have a
"sunset clause" in its charter which will be  reviewed annually
by the Committee Chair.
                              2-3
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G.  OPERATION AMD ADMINISTRATION

    1. The Committee Chair shalli

       a.   Direct  and supervise the operations of the
Committee;

       b.   Schedule and preside at Committee meetings;

       c.   Appoint a Committee Secretariat  and provide
administrative assistance  to  support Committee operations and
administration;

       d.   Ensure  agendas and topic documentation are prepared
and distributed well  in advance of  scheduled meetings;

       e.   Prepare and sign a memorandum for each panel  and
working group convened that provides the mission/task(s) to be
accomplished, terms of reference, membership, and
disestablishment date;

        f.   Ensure  appropriate reports are prepared  as well as
other documents and  records of Committee activities;

        g.   Ensure  copies of the results of Committee
meetings are prepared and  distributed  to all members and the DAB
Executive  Secretary  as soon as practicable.

     2.  Matters addressed by the Committee may  be directed by        -tt
the DAB or OSD(A),  referred for action by the DAB Executive          V
Secretary, or selected by  the Chair from  items submitted by
Committee  members.

     3.  The Committee  shall operate in compliance with the
provisions of DoD  Directive 5105.18 (reference (e)).
                               2-4
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                    THE OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE

                                  WASHINGTON. D.C. ZOJ01-»000
PRODUCTION AND                                        SEP 29 I98S
   LOGISTICS
       MEMORANDUM  FOR  DEPUTY ASSISTANT SECRETARY OF THE ARMY,
                        ENVIRONMENT, SAFETY AWD OCCUPATIONAL
                        HEALTH,  OASA  (I&L)
                       DEPUTY DIRECTOR FOR ENVIRONMENT,  OASN  (S&L)
                       DEPUTY ASSISTANT SECRETARY OF.THE AIR  FORCE
                         (ENVIRONMENT, SAFETY AND OCCUPATIONAL HEALTH),
                        SAF/RO
                       DJRFCTOR,  DEFENSE  LOCIST):<".!?  7..... '    -A-W)
                       ASLJLSTAKT  CK.fEV OV ENCtfNEEVJa (DAEN-ZCZ-A)

       SUBJECT:  Management Guidance  for Execution of the FY 1990/91
                 Defense  Environmental Restoration Program (DERP)


            DoD policy and management guidance  for execution of the
       Defense Environmental Restoration Program  (DERP) and  the transfer
       account in  FY 1990 and FY 1991 are provided in this Kuenioiandum
       and  in the  Attachments.

            Defense Environmental Restoration Program.(DERP) funds may
       be used for Installation  Restoration  (IR),  for Other  Hazardous
       Waste Operations (OHW) and for Building  Demolition/Debris Removal
       (BD/DR).  Installation Restoration Program  activities must be
       given highest priority, and we must demonstrate DoD's policy of
       addressing  the  worst sites first.

            Within the IRP there are  several areas we should emphasize
       during FY 1990/91  with an overall goal of protecting  human health
       and  preventing  deterioration of our environmental  resources:

            o    Take  removal actions immediately  upon discovery of an
                 imminent and substantial threat to human health or the
                 environment.

            o    Conduct  Preliminary Assessments  (PA)  in  a systematic
                 and comprehensive manner at those installations which,
                 due to past activities, have increased potential for
                 contamination problems.

            o    Take  interim actions or stabilization measures through
                 the removal process to  prevent deterioration of site
                 conditions and  save life cycle costs.

            o    Demonstrate a bias for  action by  initiating removal or
                 interim  remedial activities at our most  serious sites
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          as quickly as possible, and tailoring RI/FS work to
          identify in a cost, effective manner,  the preferred
          remedy at a site consistent with appropriate National
          Contingency Plan and State requirements.

          Strive to accomplish final remedial actions at our most
          serious sites.

          Cooperate and coordinate program activities as .
          appropriate with Federal, State and local agencies.
          Enter Interagency Agreements in accordance with OSD
          guidance and follow conditions in Defense and State
          Memorandums of Agreement.

          Conduct research and development for cost-effective
          technologies which address DoD unique problems or have
          wides; *r~r '  ^plicability within DoD.

          Improve program databases.  Each Component must
          maintain accurate and up-to-date status and funding
          information on individual sites at all installations,
          and provide these data to ODASD(E) for entry into the
          Interim DERP Management Information System  (I-DERPMIS).

          Identify sites for which no further action  is
          necessary.  Work with EPA and States to identify, and
          develop supporting documentation for sites which can be
          closed out.  Identify these sites for ODASD(E) for
          entry into the I-DERPMIS.

          Build and maintain community involvement in program
          activities.
     Within OHW, DERP efforts should be directed toward:

     o    Initiating hazardous waste minimization and recycling
          efforts, with a goal of integrating these concepts
          into all DoD mission programs.

     The efforts identified above should be pursued within
established program priorities described in the Attachment.

     Program oversight by this office will be primarily through
quarterly In-Progress Reviews (IPRs) and the I-DERPMIS.  A  list
of discussion topics and information requirements for the IPRs is
provided at Attachment 2.  A list of additional issues for
discussion will be disseminated prior to each IPR.

     This guidance is effective immediately.  It supersedes my
memorandum of December 9, 1988 on the same subject.  This
guidance will be incorporated into a DoD Instruction.
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     Forward two copies of implementing, instructions to this
office within 60 days.
                              William H. Parker, III, P.E.,
                         Deputy Assistant Secretary of Defense
                                   (Environment)
Attachments
cc:
ENVR-E
CEMP-R
OP-45
AF/LEEV
HQMC/LFL
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          DEFENSE ENVIRONMENTAL RESTORATION PROGRAM
         .      "-      '.    (DERP)  -
                    MANAGEMENT GUIDANCE

Background

     The Defense Environmental Restoration Program (DERP)
provides centralized management for the cleanup of DoD hazardous
waste sites consistent -with the provisions of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA),
the Superfund Amendments and Reauthorization Act of 1986 (SARA) ,
and the National Contingency Plan (NCP) and Executive Order
12580.  The goals of the DERP are stated in 10 USC 2701 and
consist of the following:

      (1)  The identification, investigation, research and
          develop.— '   ^nd cleanup of contamination from
          hazardous substances, pollutants and contaminants.

      (2)  Correction of other environmental damage (such as
          detection or disposal of unexploded ordnance) which
          creates an imminent and substantial endangerment to the
          public health or welfare or to the environment.

      (3)  Demolition and removal of unsafe buildings and
          structures, including buildings and structures of the
          DoD at sites formerly used by or under the jurisdiction
          of the Secretary.


Component Executive Program Managers

     In support of the above goals, the DoD Component authorities
and responsibilities for executing DERP policy and guidance
should be centralized by each Component under an Executive
Program Manager, and include the following:

     Develop Component implementing instructions and management
     guidance for the DERP consistent with DoD policy.   Monitor
     execution of the program.  Provide information to DASD(E)  on
     program activities and progress,  including at a minimum,
     quarterly updates of the  I-DERPMIS.

     Prepare, submit, defend and monitor execution of the budget
     consistent with OSD guidance and  Defense appropriation
     language.

     Select preferred alternatives for remedial action  at sites,
     and sign and execute Records of Decision and comparable
     documents.
i
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Conduct studies and take, action to prevent long-range
environmental problems for which restoration .would be
required.  This shall include, but not be limited to, waste
reduction/minimization initiatives, and research,
development and demonstration (RD&D) efforts with respect to
hazardous waste.

Review and evaluate management or technical elements of the
DERP.  Develop and improve methodologies and procedures for
conducting program activities such aa site investigations,
risk assessments and evaluation of waste treatment options.

Identify funding requirements in each DERP sub-element and
make determinations regarding their eligibility consistent
with OSD policy guidance.  Submit to DASD(E) requests for
allocations by sub-elements and appropriation in accordance
with Defense Budget Guidance Manual 7110-l-M.

Ensure that funds transferred from the Environmental
Restoration, Defense appropriation into Component
appropriations via reprogramming actions (DD Form 1415-3)
are expeditiously processed and made available for
environmental restoration activities consistent with this
guidance.  Funds transferred will be managed in accordance
with procedures established for the appropriation to which -
they are transferred.

Execute program to meet the following obligation targets for
immediately executable work:  First Quarter -  20% of
Component's allocation;  Second Quarter - 50% of Component's
allocation;  Third Quarter - 75% of Component's allocation;
Fourth Quarter - 100% of Component's allocation.

Ensure program execution consistent with DoD's worst-first
policy.  Make determinations concerning priority of
requirements within DERP in accordance with this guidance
and allocate funds within a sub-element to meet priorities.

Identify emergent requirements proposed for accomplishment
within DERP sub-elements and reallocate funds accordingly.
Report these new, previously unprogrammed requirements at
(IPRs).

Represent the Component at DASD(E) IPRs.

Ensure coordination of program activities with the
Environmental Protection Agency and State agencies.

Assist ODASD(E) in its central management of DoD and State
Memorandums of Agreement (DSMOAs) and Cooperative Agreements
(CAs) by: (a)  ensuring that required information on planned
Environmental Restoration funded activities and total cost
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     to complete is maintained for each installation and provided
     to the States and to DoD; (b) reimbursing States on an
     equitable basis for services provided.

     Ensure that actions necessary to protect human health and
     the environment are taken prior to property transfer from
     the U.S. to any other person or entity in accordance with
     CERCLA Sec. 120
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and C work,  components should develop: annual workplans which
Include a mix of activities among.the three priority levels,
since some'Priority B .and C work must.be funded.
JRP Priority A.

     o  Removal actions upon discovery of an imminent threat  due
        to hazardous or toxic substances or unexploded ordnance
        (UXO);

     o  Interim actions and stabilization measures taken, to  ,
        prevent site deterioration and achieve life cycle cost
        savings;

     o  Remedial Investigations/Feasibility Studies (RI/FS) at
        sites listed or proposed for listing on the National
        Priorities List and Remedial Designs/Remedial Actions
        (RD/RA)  necessary to comply with SARA.

IR Priority B.  Other RI/FS and RD/RA work.   (Includes response
actions at solid waste management units which meet the definition
of past disposal sites under CERCLA/SARA).

IR Priority C.  Pre-remedial work for discovery and notification
programs;  inventory programs; non-site specific work, such as
program management, RD&D of innovative and cost-effective cleanup
technology.


Key Issues in Interaaencv Agreement Negotiations

     Components shall coordinate IRP activities with the EPA and
States, enter into Interagency Agreements and comply with Defense
and State Memorandums of Agreement  (DSMOAs) in accordance with
OSD guidance.  The following issues should be considered during
the negotiation process:

     Agreements for Response Activities  -   Any agreements which
could potentially involve use of DERP funds must reference
potential Anti-Deficiency Act limitations on performance and
state that in the event of a shortage of funds, a prioritization
process will occur.  Such agreements include, but are not limited
to, Interagency Agreements with EPA, States or other governmental
organizations, or agreements involving remedial actions with
private parties.  Where the Agreement involves a state that has
signed a DSMOA,  reference to the funding language in the DSMOA
will suffice.

     Coordination of Agreements - Any agreements envisioning use
of DERP funds shall use language from the approved model
agreements and DSMOAs to the maximum extent possible.  Military
Components and Defense Agencies shall endeavor to coordinate any
language which deviates from the model language with the other
-------
Components at the earliest possible time.   Before an agreement is
forwarded to the-approval authority for signature, th>& Component
proposing such agreement must forward a copy of the agreement to
the office or person designated by each of the components,
ODASD(E) AND OAGC(L), with a cover memo highlighting any
deviations from previously approved model  language and any
provisions which may set a precedent for DoD or the other
components.  If no objection is received within 72 hours after
receipt of the agreement and memo by each of the designated'
offices, the agreement may be signed.  OAGC(L) will work on
behalf of the DASD(E> to resolve any inter-component issues     ,
related to lAGs and involve the DASD(E), if warranted.  DASD(E)
has authority to resolve any objections related to conduct of the
Defense Environmental Restoration Program which cannot be
resolved among the parties.

     Agreement ?'•*•  "-se -  An ASCII format copy of each
Interagency Agreement and any other significant response action
agreement entered into by the Components will be forwarded within
15 days to the Air Force for inclusion in a data base maintained
on the Federal Legal Information Through Electronics System.  The
system will be accessible and usable by the Component offices
involved in negotiating and executing such agreements.


Other Hazardous Waste Program

     This sub-element provides funds for hazardous waste
reduction equipment, process changes, and other hazardous waste
minimization initiatives; for RD&D of hazardous waste
minimization technology, including unexploded ordnance  (UXO)
detection and range clearance; and for other one-time
environmental restoration expenses related to the cleanup of
contamination from hazardous substances.  Excludes operations  and
maintenance properly chargeable to base operations support.

     Environmental Restoration Program funds for  implementing  the
Hazardous Material Pollution Prevention Directive  (DoDD 4210.15)
will be phased out over the next 5 fiscal years because of the
integration of hazardous material management into DoD mission
programs.  Office of Management and  Budget Circular A-106 forms
shall be used to identify funding requirements.


OHW Priority A.

o    Procurement of equipment and conduct of studies  for
     hazardous waste minimization that have broad Component-wide
     applicability or substantially  reduce waste  within a
     Component;  including data collection, training and
     technology transfer efforts in  support of hazardous waste
     minimization.
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o    studies and support for toxicological data collection and
     methodology on risk exposure of. hazardous waste generated by
     the DoD.

OHW Priority B.   RD&D of hazardous waste management, treatment
or disposal methods; including hazardous waste minimization (10
USC 2702).

OHW Priority C.   DoD support to the Agency for Toxic Substances
and Disease Registry for toxicological profiles for unregulated
hazardous substances commonly found on DoD installations and DoD
support to EPA for health advisories concerning drinking water
contaminants, beyond that required by statute.

OHW Priority D.   RD&D of UXO detection and range clearance
technology.

OHW Priority E.  Other OHW requirements not classified by the
above categories.


Building Demolition/Debris Removal Program

     Includes demolition and removal of unsafe buildings or
structures at current installations and at formerly-owned or used
properties.

     The DASD(E) does not expect to allocate funds to BD/DR
during FY1990/91 due to other higher priority cleanup activities.


Management Information System

     The I-DERPMIS, which contains site data provided by the
Components, is used by ODASD(E) as an important tool for program
management and oversight.  It is also the primary source of
information for the DERP Annual Report to Congress required under
10 USC 2706 and SARA S.120(e) and for responding to inquiries.
Thus,  it is imperative that the I-DERPMIS data accurately reflect
program status and be consistent with Component's own program
data.   Components shall ensure that the I-DERPMIS data are
complete and accurate, and are updated no less frequently than
quarterly.

     A limited number of new data fields will be added to the
I-DERPMIS, including information associated with DSMOAs such as
site category and total cost to completion.  Components will be
required to provide corresponding data.
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Defense Priority Model (PPM) and Defense Priority System ( DPS)

     During TY 1989, DoD made improvements to the DPM based on
comments received from regulatory agencies.   Beginning in FY
1990, the DPM will be used by DoD to assess the relative risk to
human health and the environment of sites which are ready for
Remedial Design/Remedial Action (RD/RA)  under the IRP.

     Components shall score all sites for which RD/RA. (including
interim actions taken during or post-RI/FS)  -could be executed,
during the upcoming /fiscal year using' the procedures described in
"Defense Priority Model tJser(s Manual."   Prior to the start of
the fiscal year, Components should develop and provide to
ODASD(E), a list of executable RD/RA projects based on DPM site
scores.  The list should include the cost (for that fiscal year)
for each project, and proposed amounts to be funded/unfunded
under target fundir--* io"«-i-.  Component lists will be reviewed by
ODASD(E) and funding priorities will be determined jointly by the
DASD(E) and Component Executive Program Managers.

     Development work has been initiated on a DPS which would
incorporate other considerations such as regulatory
responsiveness, mission impact and program efficiencies into the
decisionmaking process.


Military Construction
     Hazardous waste cleanup projects which, because of the type
of work involved, are classified as military construction
should be programmed and budgeted for in the normal military
construction account.  In those cases where use of normal
military construction procedures will result in a substantial
danger to public health, welfare or the environment, the project
may be proposed for funding in DERP.  These written requests
should be submitted to the DASD(E) and be accompanied by:

     The justification for and current estimate of the cost of
     the project.

     The justification for carrying out that project under the
     DERP.

     These requests will be made only for current year DERP
     funding, since the budget year funding should be
     accommodated in the normal military construction budget
     process.
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Compliance with the National Environmental Policy Act fNEPA)

     The proposal to clean up a contaminated site is a DoD action
subject, by policy, to the requirements of NEPA and its
implementing regulations.  To the maximum extent practicable, the
procedural and public involvement requirements of the National
Contingency Plan and NEPA regulations should not be duplicated.
The processes should.be merged-.  The implications of our. actions
for natural resources and wildlife ecology should be carefully
examined as the environmental assessment process would dictate


Base Closure/Realignment Requirements and Property Transfer
Procedures

     Cleanup requirements associated with base closure/realign-
ment may be programmed and accomplished under the DERr.  wo^-"^ver,
if base closure locations or timetables are not consistent with
worst-first priorities or if cleanup involves activities not
eligible for Environmental Restoration funding, such as closure
of treatment, storage, or disposal units which received a final
RCRA operating permit, unless such a unit was constructed and
permitted as part of a SARA response action, then these cleanups
or activities must be funded by the Components from other fund
sources.

     In general, a DoD Component which accepts accountability of
property excessed by another DoD Component shall be responsible
for IRP actions at the property.  The losing Component is
responsible for conducting a baseline survey to establish the
contamination status of the site and providing the gaining
Component all IRP reports and a history of actions taken prior to
the transfer of the property.  DoD Components will not accept
property excessed by another federal agency without that Agency
having met the requirements of SARA Sec 120(h).  This policy does
not preclude Components from making separate agreements regarding
IRP execution for particular properties (e.g., in some cases the
losing Component may continue to manage the IRP).
                                8
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Activities Eligible for DERP

Installation- Restoration Program;

     Investigations to identify,  confirm and determine the risk
     to human health and the environment; feasibility studies;
     remedial action plans and designs; and removal or remedial
     actions.                                  .

     Research, development and technology demonstrations
     necessary to conduct cleanups.

     Expenses associated with cooperative multi-party cleanup
     plans and activities.

     Remedial actions to protect or restore natural resources
     damaged by contami ~ ' : - ~ **-om past hazardous waste disposal
     activities.

     Cleanup of low level radioactive waste sites which have been
     identified as IRP sites.

     Management expenses associated with the IRP, including
     civilian salaries and training.

     Operation and maintenance costs for the first ten years of
     operation of remedial systems and monitoring systems.

     Immediate actions necessary to address health and safety
     concerns such as providing alternative water supplies or
     treatment of contaminated drinking water, when the hazard
     results from a release from DoD property.

     Studies to locate underground tanks not used since January
     1984 and activities to determine actual or potential
     contamination.

     Cleanup of contamination believed to be harming human health
     or the environment resulting  from tanks not used since
     January 1984, unless such cleanup is incidental to tank
     replacement.

     Cleanup of contamination believed to be harming human health
     or the environment resulting  from tank leaks which
     occurred prior to March 1, 1986, unless the cleanup  is
     incidental to tank replacement.  Components must have
     evidence that tanks were leaking prior to March 1, 1986.
     NOTE:  Beginning in FY92, Components should program  cleanups
     for currently operating tanks in other appropriations.

     CERCIA response actions necessary prior to base closure,
     realignment, or excess of real property assets.
-------
     Response actions at solid waste management units which would
     meet the definition of a past .disposal  site under .
     CERCLA/SARA.

     Studies and support for RD&D of innovative and cost
     effective technologies for cleanup of hazardous waste sites,
     for DoD-unique wastes or other  techniques widely applicable
     to DoD.     _

     Response actions at third party sites where DoD is  in
     receipt of a Potentially Responsible Party (PRP) letter.

     State support services provided.in accordance with  a
     signed Interagency Agreement or a Cooperative Agreement
     under a DSMOA.
Other Hazardous Waste Operations;

     Procurement of equipment and conduct of studies to minimize
     hazardous waste generation that have broad component-wide
     applicability or substantially reduce wastes within a single
     Component.

     Data collection, training and technology transfer efforts
     which support waste minimization.

     Research, development, studies, and technology
     demonstrations related to hazardous waste minimization,
     recycling, treatment or disposal needs.

     Studies and support for toxicological data collection and
     methodology on risk of exposure to hazardous wastes.

     Studies and support for commonly found unregulated hazardous
     substances by HHS (ATSDR) and for DoD Health Advisories by
     the EPA.
Building Demolition and Debris Removal;

     The demolition of buildings or the  removal of debris which
     constitute a safety hazard on lands formerly used by the
     DoD, provided such lands were transferred to state or local
     governments or native corporations.

     The demolition of buildings or the  removal of debris which
     constitute a safety hazard on active installations.
                               10
-------
     Expenses incident to complete restoration,  such as
     restoration,of natural resources,  are included if such.
     expenses are- clearly and directly related to the demolition
     and debris removal.
Activities Not Eligible for DERP

     Closing or capping sanitary, landfills unrelated to a
     hazardous waste cleanup action.

     RCRA. closures which are associated with current waste
     generation and disposal facilities do not meet the
     definition of a response action under CERCLA/SARA.

     Construction of hazardous waste storage,  transfer, treatment
     or dispr^.-' *--'lities, except when part of a CERCLA/SARA
     response action.

     Demolition or debris removal as part of a new construction
     project.

     Testing or repair of active underground tanks.

     Costs of replacing leaking underground tanks.

     Cleanup of contamination believed to be harming health or
     the environment resulting from underground tanks in use
     after January 1984, unless there is evidence that
     contamination occurred prior to March 1,  1986.

     Costs of testing, storing, disposing or replacing PCB
     transformers.

     Costs of asbestos surveys, containment, removal or disposal,
     except where incidental to a DERP response action.

     Costs of recurring service contracts for waste
     reduction/minimization.

     Costs of spill prevention and containment measures for
     currently operating equipment and facilities.

     Cleanup costs of spills covered or required to be covered by
     spill prevention, containment and counter-measures  (SPCC)
     plans.

     Costs of operation, maintenance or repair to hazardous waste
     treatment, storage, or disposal facilities which  are
     currently in use.
                                11
-------
Costs of hazardous waste disposal operations,  including
associated management and operational costs,  except when
part of a DERP reponse action.

Overseas Environmental Restoration activities.

State support services prior to October 17,  1986, past State
costs not reasonably documented, and State services in
support of non-Environmental Restoration Program funded
cleanup activities.
                          12
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                    IN-PROGRESS REVIEWS


Quarterly In-Progress Reviews will be held in February, May,
August and November 1990 amd 1991 to review program progress.
Components should be prepared to present the following
information to ODASD(E) regarding program status as of December
31, March 31, June 30 and September 30:

     -  Obligation rate (use format attached).   Also report
        for multi-year appropriations.

        Reprogramming requests

        Emergent requirements

        Significant events, accomplishments  (e.g. completion of
        RI/FS, RD/RA at key sites, agreements reached, technology
        successes, etc.)

        Programmatic issues

        Updated I-DERPMIS site data   (or confirm automated
        update)

        Other information, as requested by separate memo


ODASD(E) will provide information on:

        Budget (Upcoming year and out years)

        Congressional actions
                                13
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-------
                 THE OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE

                             WASHINGTON DC 20301-8000
PRODUCTION AND
   LOGISTICS                             April 18, 1988
        MEMORANDUM FOR  DEPUTY  FOR ENVIRONMENT, SAFETY AND OCCUPATIONAL
                        HEALTH, OASA  (I&L)
                       DEPUTY  DIRECTOR FOR ENVIRONMENT, OASN  (S&L) DEPU1
                       ASSISTANT SECRETARY OF THE AIR FORCE  (ENVIRONMENT
                            SAFETY AND OCCUPATIONAL HEALTH),  SAF/RQ
                       DIRECTOR, DEFENSE LOGISTICS AGENCY  (DLA-W)

        SUBJECT:  DoD's Policy on NPL Site Agreements

           I  continue to support strongly the use of cleanup  agreements
        with  EPA  and the States that satisfy the requirements of  Sectior
        120 of  the Superfund Amendments and Reauthorization Act  (SARA).
        Under separate  cover,  I have issued interim guidance  for  use  in'
        negotiating agreements to clean up our National Priority  List
        (NPL) sites.  This guidance is to be followed while we work with
        EPA to  develop  a model agreement adaptable to NPL  sites at all c
        our installations.

           Over the past year  we have established several  DoD policies i
        this  area.  These policies are not changed by the  interim
        guidance.  Pertinent existing policy is summarized below.

           o  DoD wants to enter into agreements at its NPL  sites as  soc
             as  practicable.   They should be a high priority.  Although
             the law does not require lAGs until six months  after
             completion of  an RI/FS, there are many benefits to  enterir
             pre-ROD agreements if they are properly structured.

           o  Federal facility agreements for NPL site cleanup should
             establish a reasonable working relationship  between the
             states, EPA and  DoD.  They should clearly lay  out mutual
             obligations.   The agreements should satisfy  SARA Section
             120 requirements and address other aspects of  CERCLA.
             Although  much  emphasis has been given to our relationship
             with EPA,  the  states are critical participants  in  our
             program and we should incorporate their interests  as well.

           o  DoD installations should enter into agreements only if  the
             have provisions  that are realistically attainable and  that
             are structured to avoid  excessive reporting,  duplication c
             effort, and other administrative practices that reduce  the
             efficiency of  the overall remedial response.   The Twin
-------
Cities Army Ammunition Plant (TCAAP)  agreement contains
excessive detail and would be an unworkable management
approach at most of our sites,  although the approach was
appropriate there.

DoD installations may reimburse EPA and the states for only
those services that are provided at the request of DoD
components, such as specified special studies and
assistance in obtaining entry rights for remedial responses
on private property.  In developing future agreements with
EPA and the states, DoD facilities should agree not to
reimburse EPA or the states for enforcement and related
oversight costs, such as the review of documents.

DoD accepts the need to demonstrate its firm commitment to
NPL agreements by making critical portions of them
enforceable.  We can and want to comply with workable
agreements.  However, stipulated monetary penalties such as
provided in the TCAAP agreement are not appropriate.

DoD installations will continue efforts to define problems*
at their sites and move aggressively to determine what
remedial actions are appropriate while they negotiate
agreements with EPA and the states.  In line with current
DoD policy, if a significant imminent threat to human
health is found during site investigations, the
installation shall address and remedy that problem
immediately.  Agreement negotiations will in no way impede
DoD's responsibility to protect the public from harmful
exposures or halt efforts to get to remedial action
decisions to address our sites.

DoD facilities will consult fully with EPA and the  states
in the course of continuing our installation restoration
efforts while negotiating the terms of the federal  facility
agreements.  We want the EPA and state input now.   We
recognize the value of their reviews and  recommendations
throughout the cleanup process.  Records  should  be
maintained of our  interactions with EPA and  states  whether
or not an IAG or any other agreement has  been  finalized.
-------
  These policies, along with the agreement provisions provided
separately, serve as a foundation for the negotiation of federal
facility agreements for NPL sites.  The intent is that agreements
are signed that will expeditiously and efficiently move our
cleanup effort forward with the full support and involvement of
EPA and the states.
                      ;,' M. J. vCarrlcato, CAPT, CEC, USN
                 Acting Deputy Assistant Secretary of Defense
                                  (Environment)
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                 THE OFFiCF OK Tri£ ASSISTANT SECRETARY OF DEFENSE

                             '/•/ A 5 h , N G ';' O N -J C  <". 030! 8000
PRODUCTION AND
   LOGISTICS                             April 18, 1988
       MEMORANDUM FOR DEPUTY FOR ENVIRONMENT, SAFETY AND OCCUPATIONAL
                        HEALTH, OASA  (I&L)
                      DEPUTY DIRECTOR FOR ENVIRONMENT, OASN  (S&L)
                      DEPUTY ASSISTANT SECRETARY OF THE AIR  FORCE
                         (ENVIRONMENT, SAFETY AND OCCUPATIONAL HEALTH),
                        SAF/RQ
                      DIRECTOR, DEFENSE LOGISTICS AGENCY  (DLA-W)

       SUBJECT:  Agreements for NPL Sites -- Interim Guidance Material
            Our efforts to develop model provisions with the
       Environmental  Protection Agency  for  agreements that  cover  cleanup
       of our NPL sites are  likely to continue  for some time.   Until  we
       reach an agreement with HQ/EPA,  Service  components should
       continue to seek locally negotiated  agreements with  EPA  regions
       and states.  With this in mind,  I recommend that Service
       representatives use the draft model  provisions and the other
       guidance that  are attached.  Component representatives and my
       staff prepared them during the last  three  months.  They  represent
       the Department's position on language for  agreement  provisions
       and on what is a responsible way to  manage our working
       relationship with EPA and the States,

            These draft provisions and  the  guidance  are compromise
       solutions to the most contentious  issues that we have  faced for
       NPL site cleanup.  However, this does not  mean all the other
       provisions that EPA has proposed for DoD consideration or  that we
       have agreed to in specific instances in  the past are acceptable.
       We have felt that the other issues can be  best worked  out  at the
       field level.   Several of them may  need a lot  of attention  by your
       negotiators.   Please  alert them  to this.
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                                                                   i
     It is my hope that in the near future we can complete the
work remaining on this effort with EPA and give better assistance
to individual installations.  In the meantime, I trust this
interim guidance will be helpful -in reaching locally negotiated
agreements for cleanups.        I,  "~
                        -M. J. ^earficato, CAPT, CEC, USN
                Acting Deputy Assistant Secretary of Defense
                               (Environment)
Attachment
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               INTERIM GUIDANCE ON SELECTED CLAUSES
                                                     19 April  1988
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           REGION  [  ]
                             AND THE
                          [State Agency]
                             AND THE
                  UNITED STATES  [DOD Component]
IN THE MATTER OF:              }
                               )
The U.S. Department            )                     Administrative
of the  [DOD Component]         )                     Docket  Number:
                               )
[Name of Facility]             )
             FEDERAL FACILITY AGREEMENT UNDER CERCLA
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                        TABLE CF CONTENTS




Section                                                      Page



I.        PURPOSE                                   .           1




II.       JURISDICTION                                         3




III.      CONSULTATION                                         4




IV.       PERMITS                                              9




V.        DISPUTE RESOLUTION                                   10




VI.       EXTENSIONS                                           13




VII.      EXEMPTIONS                                           15




VIII.     STATUTORY COMPLIANCE                                 16




IX.       ENFORCEABILITY                                       17




X.        FUNDING                                              18
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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           REGION [  ]
                             AND THE
                          [State  Agency]
                             AND THE
                  UNITED STATES  [DOD Component]
                              )
 IN THE MATTER OF:             )
                              )                   FEDERAL FACILITY
 The U.S. Department           )                   AGREEMENT UNDER
 of the  [DOD Component]        )                   CERCLA
                              )
 [Name of Facility]            )                   Administrative
                              )                   Docket Number:
 	)
     Based on the information available to the Parties on the
effective date of this Federal Facility Agreement Under CERCLA
(Agreement), and without trial or adjudication of any issues of
fact or law, the Parties agree as follows:


                           I.  PURPOSE

     1.1  The general purposes of this Agreement are to:

          (a)  Ensure that the environmental impacts associated
with past and present activities at the NPL site (the Site) are
thoroughly investigated and that appropriate remedial action is
taken as necessary to protect the public health and the
envi ronment;

          (b)  Establish a procedural framework and schedule for
developing,  implementing and monitoring appropriate response
actions at the Site in accordance with CERCLA, the NCP, and
CERCLA guidance and policy; and,

          (c)  Facilitate cooperation, exchange of information
and participation of the Parties in such actions.

     1.2  Specifically, the purposes of this Agreement are to:

          (a)  Identify interim remedial action  (IRA)
alternatives which are appropriate at the Site prior to the
implementation of final remedial actions for the Site.  IRA
alternatives shall be identified and proposed to the Parties as
early as possible prior to final selection of IRAs pursuant to
CERCLA.  This process is designed to promote cooperation  among
the Parties.
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          (b)  Establish requirements for the performance of a
remedial investigation (RI) to determine fully the nature and
extent of the threat to the public health or the environment
caused by the release and threatened release of hazardous
substances,  pollutants or contaminants at the Site and to
establish requirements for the performance of a feasibility study
(FS) for the Site to identify, evaluate, select alternatives for
the appropriate remedial actions to prevent, mitigate, or abate
the release or threatened release of hazardous substances,
pollutants or contaminants at the Site in accordance with CERCLA.

          (c)  Identify the nature, objective and schedule of
response actions to be taken at the Site.  Response actions at
the Site shall attain that degree of cleanup of hazardous
substances,  pollutants or contaminants mandated by CERCLA.

          (d)  Implement the selected interim and final  remedial
action in accordance with CERCLA, and, to the extent identified
in pertinent sections herein, meet the requirements of CERCLA
§ 120 (e) (2), 42 U.S.C. § 9620 (e) (2), for an interagency  agreement
between EPA and the [DOD Component].

          (e)  Assure compliance, through CERCLA, with RCRA and
other federal and state hazardous waste laws and regulations for
matters covered by this Agreement.  Section 	, Statutory
Compliance,  sets forth in detail how this purpose is achieved.

          (f)  Execute response actions at the Site without
degradation of the [DOD Component]'s ability to carry out  its
mission and support activities at  [installation].
                                                                      i
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                        II.  JURISDICTION

     2.1  Each Party is entering into this Agreement pursuant to
the following authorities:

          (a)  The EPA enters into those portions of this
Agreement that relate to the RI/FS pursuant to CERCLA
§ 120(e)(l), 42 U.S.C. § 9"620(e)(l), [and §§ 6001, 3004(u) and
(v) ,  and 3008(h)  of the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. §§ 6961, 6924(u) and  (v), and 6928(h)];

          (b)  The EPA enters into those portions of this
Agreement that relate to interim remedial actions and final
remedial actions pursuant to CERCLA § 120 (e) (2) and RCRA  §§ 6001,
3004(u) and  (v),  and 3008(h);

          (c)  The [DOD Component] enters into those portions of
this Agreement that relate to the RI/FS pursuant to CERCLA,  [RCRA
§§ 6001, 3004(u)  and  (v), and 3008(h)J, the Defense Environmental
Restoration Program (DERP), 10 U.S.C. § 2701 et. seq., and
Executive Order 12580;

          (d)  The [DOD Component] enters into those portions of
this Agreement that relate to interim remedial actions and final
remedial actions pursuant to CERCLA § 120(e)(2),  [RCRA §§ 6001,
3004 (u) and  (v),  and 3008(h)], DERP, and  Executive Order  12580;
and

          (e)  [State] enters into this Agreement pursuant to....
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          III.   CONSULTATION WITH EPA AND STATE AGENCIES

     3.1  Applicability:   The  provisions of this  section
establish the procedures  that  shall be  used by the [DOD
Component], the EPA, and  [State]  to provide for appropriate
notice, review, comment,  and response to comments regarding RI/FS
and RD/RA documents, specified herein as either primary or
secondary documents.  In  accordance with CERCLA § 120 and 10
U.S.C.  § 2705, the  [DOD Component]  will normally  be responsible
for issuing primary and secondary documents to the other  Parties,
however, these procedures apply to  any  Party that may issue any
portion of a primary or secondary document.  As of the effective
date of this Agreement, all draft and final reports for any
deliverable document identified herein  shall be prepared  in
accordance with paragraphs 3.2 through  3.10 below.

     3.2  General Process for  RI/FS and RD/RA Documents:

           (a)  Primary documents includes those reports that are
major,  discrete portions  of RI/FS or RD/RA activities.  Primary
documents are issued initially in draft subject to review and
comment by the Parties.  Following  receipt of comments on a
particular draft primary  document,  the   [DOD Component] will
respond to the comments received and issue a draft final  primary
document subject to dispute resolution.  The draft final  primary
document will become the final primary  document either 15 days
after issuance if dispute resolution is not invoked or as
modified by decision of the dispute resolution process.

           (b)  Secondary documents includes those reports that
are discrete portions of  the primary documents and are typically
input or feeder documents.  Secondary documents are issued  in
draft subject to review and comment by the Parties.  Although the
[DOD Component] will respond to comments" received, the draft
secondary documents will  be finalized in the context of the
corresponding primary documents.  A secondary document may  be
disputed at the time the corresponding draft final primary
document is issued.

     3.3  Primary Reports:

           (a)  The  [DOD Component]  shall transmit draft  reports
for the following primary documents to  the Parties for review  and
comment in accordance with the provisions  of this section:

     [Note:  The list set forth below represents  potential
     primary documents and the type of  information that
     typically would be generated during a CERCLA cleanup  at
     an NPL site.   This list,  and the list  in  paragraph
     3.4(a) below of secondary documents,  includes
     appropriate discrete portions of the  RI/FS  or RD/RA
     that may vary  in accordance with the  NCP, DOD Component
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     or EPA guidance, and site specific  requirements.  In
     practice, the documents will also vary with scope and
     nature of the project, and may either be combined or
     broken out into separate volumes.]

               (1)   [Scope of Work]

               (2)   [RI/FS Work Plan]

               (3)   [Risk Assessment]

               (4)   [RI Report]

               (5)   [Initial Screening of Alternatives]

               (6)   [FS Report]

               (7)   [Remedial Design]

               (8)   [Remedial Action Work Plan]

           (b)  Only  the draft final  reports for the  primary
documents listed above shall be subject  to dispute resolution.
The  [DOD Component]  shall prepare draft  primary documents  in
accordance with the  timetable and deadlines set forth  in
Appendix 	 of this Agreement.

     3.4  Secondary  Documents:

           (a)  The [DOD Component] shall transmit draft  reports
for the following secondary documents  to the Parties for  review
and comment in accordance with the provisions of this  section:

               (1)   [Initial Remedial  Action / Remedial  Quality
                     Objectives]

               (2)   [Site Characterization Summary]

               (3)   [Detailed Analysis of Alternatives]

               (4)   [Post-screening  Investigation Work Plan]

               (5)   [Treatability Studies]

               (6)   [Sampling and Data Results]

           (b)  Although the draft reports for the secondary
documents listed above are subject to  review and comment by  EPA
and  [State], such documents shall not  be subject to  dispute
resolution.  The  [DOD Component] shall establish and notify  the
Parties of the target dates for the  issuance of draft  secondary
reports.
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                                                                      i
     3.5  Meetings of the Project Managers on Development of
Reports:  The Project Managers shall meet approximately every
[30] days, except as otherwise agreed by the Parties, to review
and discuss the progress of work being performed at .the Site on
the primary and secondary documents.  Prior to preparing any
draft report specified in paragraphs 3.3 and 3.4 above, the
Project Managers shall meet to discuss the report results in an
effort to reach a common understanding, to the maximum extent
practicable, with respect to the results to be presented in the
draft report.

     3.6  Identification and Determination of Potential ARARs:

          (a)  For those primary reports or secondary documents
that consist of or include ARAR determinations, prior to the
issuance of a draft report, the Project Managers shall meet to
identify and propose, to the best of their ability, all potential
ARARs pertinent to the report being addressed.  At that time,
[State]  shall also identify all potential [State] ARARs
referenced in CERCLA § 121 (d) (2) (A) (ii), 42 U.S.C.
§ 9621 (d) (2) (A)(ii), which are pertinent to the report being
addressed.  Draft ARAR determinations shall be prepared by the
[DOD Component] in accordance with CERCLA § 121(d) (2), 42 U.S.C.
§ 9621 (d) (2), the NCP and any pertinent guidance issued by EPA,
which is not inconsistent with CERCLA and the NCP.

          (b)  In identifying potential ARARs, the Parties
recognize that actual ARARs can be  identified only on a
site-specific basis and that ARARs depend on the specific
hazardous substances, pollutants and contaminants at a site, the
particular actions proposed as a remedy and the characteristics
of a site.  The Parties recognize that ARAR identification is
necessarily an iterative process and that potential ARARs must be
re-examined throughout the RI/FS process until a ROD is issued.

     3.7  Review and Comment on Draft Reports:

          (a)  The [DOD Component]  shall transmit each draft
primary report to the other Parties on or before the
corresponding deadline established  for the issuance  of the
report.   The [DOD Component] shall  transmit the draft secondary
documents in accordance with the target dates established for
issuance of such reports.

          (b)  Unless the Parties mutually agree to  another  time
period,  all draft reports shall be  subject to a 30-day period  for
review and comment.  Review of any  document by EPA  and  [State]
may concern all aspects of the report  (including completeness)
and should include, but is not limited to, technical evaluation
of any aspect of the document, and  consistency with  CERCLA,  the
NCP and any pertinent guidance or policy promulgated by  EPA.
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Comments by EPA and  [State] shall be provided with adequate
specificity so that  the  [DOD Component] may respond to the
comment and, if appropriate, make changes to the draft report.
Comments shall refer to any pertinent sources of authority or
references upon which the comments are based, and, upon request
of the  [DOD Component], the commenting Party shall provide a copy
of the cited authority or reference.  In cases involving complex
or unusually lengthy reports, a Party may extend the^ 30-day
comment period for an additional 20 days by written notice to the
[DOD Component] prior to the end of the 30-day period.  On or
before the close of  the comment period, the Parties shall
transmit by next day mail their written comments to the [DOD
Component].

          (c)  Representatives of the  [DOD Component] shall make
themselves readily available to EPA and [State] during the
comment period for purposes of informally responding to questions
and comments on draft reports.  Oral comments made during such
discussions need not be the subject of a written response by the
[DOD Component] on the close of the comment period.

          (d)  In commenting on a draft report which contains a
proposed ARAR determination, EPA and [State] shall include a
reasoned statement of whether they object to any portion of the
proposed ARAR determination.  To the extent that EPA or [State]
does object, it shall explain the bases for its objection in
detail and shall identify any ARARs which it believes were not
properly addressed in the proposed ARAR determination.

          (e)  Following the close of the comment period for a
draft report, the [DOD Component] shall give full consideration
to all written comments on the draft report submitted during the
comment period.  Within 30 days of the close of the comment
period on a draft report, the  [DOD Component] shall transmit to
EPA and [State], its written response to comments received within
the comment period.   Within 30 days of the close of the comment
period on a draft primary report, the  [DOD Component] shall
transmit to EPA and  [State] a draft final primary report, which
shall include the [DOD Component]'s response to all written
comments,  received within the comment period.  While the
resulting draft final report shall be the responsibility of the
[DOD Component], it  shall be the product of consensus to the
maximum extent possible.

          (f)  The [DOD Component] may extend the 30-day period
for either responding to comments on a draft report or for
issuing the draft final primary report for an additional 20 days
by providing notice  to the other Parties.  In appropriate
circumstances, this  time period may be further extended in
accordance with Section 	 hereof.
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     3.8  Availability of Dispute Resolution for Draft Final
Reports:

          (a)  Dispute resolution shall be available to the
Parties only for draft final primary reports.  Within 14 days of
receipt of a draft final report, any Party may raise any aspect
of it  (including any secondary document or ARAR determination
required for that report) to dispute resolution.

          (b)  When dispute resolution is invoked on a draft
primary report, work may continue in accordance with the
procedures set forth in Section 	,  Dispute Resolution.

     3.9  Finalization of Reports:   The draft final primary
report shall serve as the final primary report if no Party
invokes dispute resolution regarding the document or, if invoked,
at completion of the dispute resolution process should the  [DOD
Component]'s position be sustained.  If the  [DOD Component]'s
determination is not sustained in the dispute resolution process,
the [DOD Component] shall prepare,  within not more than 35 days,
a revision of the draft final report which conforms to the
results of dispute resolution.  In appropriate circumstances, the
time period for this revision period may be extended in
accordance with Section 	, Extensions.

     3.10 Subsequent Modifications of Reports:  Following
finalization of any primary report pursuant to paragraph 3.9
above, a Party may seek to modify the report, including seeking
additional field work, pilot studies, computer modeling or  other
supporting technical work, only as provided below:

          (a)  A Party may seek to modify a  report after
finalization if it determines, based on new  information  (i.e.,
information that became available, or conditions that became
known, after the report was finalized) that  the requested
modification is necessary.  A Party may seek  such a modification
by submitting a concise written request to the  Project Managers.
The request shall specify the nature of the  requested
modification and how the request is based on  new information.

          (b)  In the event that a consensus  is not  reached by
the Project Managers on the need for a modification,  any Party
may invoke dispute resolution to determine if such modification
shall be conducted.  Modification of a report shall be  required
only upon a showing that:   (1) the requested  modification  is
based on new information, and  (2) the  requested modification
would be of significant assistance in evaluating  impacts on
public health and the environment, in evaluating the  selection  of
remedial alternatives, and in protecting  human  health and  the
environment.                                                           ^m
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                           IV.   PERMITS

     4.1  The Parties recognize that under CERCLA §§ 121(d) and
 (e)(l), 42 U.S.C. §§ 9621(d) and  (e)(l), and the NCP, portions of
the response actions called for by this Agreement and conducted
entirely on the Site, whether on or off [name of installation],
are exempted from the procedural requirement to obtain a federal,
state, or local permit, but must satisfy permitting standards,
requirements, criteria, or limitations which otherwise qualify as
ARAP.s.

     4.2  The [DOD Component] shall notify the other Parties when
it becomes aware of any permits required for off site activities.
The EPA, State and any of its political subdivisions shall, upon
request, promptly issue such permits as are needed in furtherance
of actions under this Agreement and consistent with its terms.
If a permit necessary for implementation of this Agreement is not
issued, or is issued or renewed in a manner which is materially
inconsistent with the requirements of this Agreement, the  Parties
shall meet to consider modification of this Agreement that is
necessary either to obtain a permit or to conform to an issued
permit.

     4.3  During any appeal of any permit required to implement
this Agreement or during review of any Party's proposed
modifications as provided above, all Parties shall continue to
implement those portions of this Agreement which can reasonably
be implemented pending final resolution of the permit issue(s).
However, as to work which cannot be so implemented, any
corresponding timetable, deadlines, and schedule will be
automatically extended until all necessary permits are issued or
the need for the permit is eliminated.  Additional extensions may
be granted for good cause under Section 	, Extensions.
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                    V.   RESOLUTION  OF  DISPUTES

     5.1  Any Party may invoke Dispute Resolution under the terms
of this Agreement.  Only the following matters are subject to
Dispute Resolution:

          (a)  Draft final primary documents within 14 days of
transmittal to the Parties pursuant to Section _ , Consultation.

          (b)  Denial of a request for extension within 14 days
of receipt of a statement of nonconcurrence pursuant to Section
_ , Extensions.

          (c)  Actions taken by a Party which are inconsistent
with Section _ ,  Statutory Compliance.  Such disputes must be
brought within a reasonable time, but in no case more than 28
days after the disputing Party becomes aware of the action.

          (d)  Failure of any Party to perform in accordance with
the terms of a final primary document.  Such disputes must be
brought within a reasonable time, but in no case more than 28
days after the disputing Party becomes aware of the failure.
Dispute Resolution shall be invoked by giving notice as provided
in paragraph 5.3 below.                                          '

     5.2  The following forums are established for the resolution
of disputes:

          (a)  The Project Managers shall seek to resolve all
disputes on an informal basis prior to forwarding them to the
Dispute Resolution Committee.

          (b)  The Dispute Resolution Committee  (DRC) will serve
as the appellate forum for resolution of disputes that are not
resolved at the Project Manager level.  The membership of this
committee shall include the Waste Management Division Director of
EPA Region _ , [comparable [DOD Component] representative],  and
[comparable state representative] .

          (c)  The Senior Executive Committee  (SEC) will  serve as
the appellate forum for resolution of disputes that are not
resolved at the DRC level.  The membership of this committee
shall include  [the Assistant Administrator for Solid Waste and
Emergency Response of the EPA or the  Regional Administrator  of
EPA Region _ ],  the [DOD Component secretariat  representative],
and the [comparable state official].  Appeals from the SEC will
be to the EPA Administrator.

     5.3  A Party shall initiate Dispute Resolution by advising
the other Project Managers through a  written notice of dispute.
All notices under this section shall  include:
                                10
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           (a)  A concise statement of the issue in dispute,

           (b)  Any appropriate technical, legal, or factual  basis
for the disputing Party's position,

           (c)  An identification of any activities affected  by
the dispute which the disputing Party believes should not proceed
during dispute resolution.

     5.4  Upon receipt of the notice set forth in paragraph  5.3
above, the Project Managers shall use their best efforts to
resolve the dispute by a concurrence of all Parties within the
next 14 days.  If the dispute is not resolved, the decision  of
the [DOD Component] shall be implemented unless a Party elevates
the dispute to the DRC within 7 days after the close of the
14-day resolution period.

     5.5  Following the elevation of a dispute from the Project
Managers, the DRC shall meet and attempt to resolve within the
next 21 days.  If the dispute is not resolved by concurrence of
all the Parties, the dispute shall be elevated to the SEC after
the close of the 21-day resolution period.

     5.6  Following the elevation of a dispute from the DRC, the
SEC shall meet and attempt to resolve the dispute by a
concurrence of all Parties within the next 21 days.  If the
dispute is not resolved, the decision of the EPA shall be
implemented unless a Party elevates the dispute to the EPA
Administrator within 7 days after the close of the 21-day
resolution period.

     5.7  A dispute that is not resolved by the SEC may be
elevated to the EPA Administrator by any Party.  Upon request and
prior to making a final decision, the Administrator shall meet
and confer with [DOD Component counterpart] to discuss the issues
under dispute.  The Administrator shall resolve the dispute by
issuing a written decision to the Parties within 21 days after
its elevation.  The duties of Administrator set forth in this
paragraph shall not be delegated.

     5.8  Statements made in the course of Dispute Resolution and
documents prepared solely for use in Dispute Resolution shall be
considered statements made in furtherance of settlement and
entitled to the protection afforded such statements and documents
by the Federal Rules of Evidence.  Persons who participate in
Dispute Resolution shall not be subject to deposition or other
discovery concerning statements made during, in preparation for,
or in connection with Dispute Resolution.

     5.9  The pendency of any dispute shall not affect the
responsibility of any Party to continue its involvement in the
assessment, selection, and implementation of response actions to

                                11
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the extent that such actions are not subject to the dispute or       ^B
are not materially and substantially related to such dispute.
However, the time period for completion of work affected by such
dispute shall be automatically extended for a period of time
equal to the delay caused by resolution of the dispute in
accordance with the process set forth in this section.  An
additional extension may be granted for good cause under the
provisions of Section 	, Extensions.

     5.10 When Dispute Resolution is invoked, work may go forward
where:  (1) the disputing Party does not identify such work in
the notice of dispute, or (2)  it is determined through Dispute
Resolution that such work may go forward pending the resolution
of the dispute.  If the Parties disagree as to whether work
should stop regarding any matter subject to Dispute Resolution,
the Waste Management Division Director, EPA Region 	, shall
resolve the question after meeting with the  [DOD Component] to
discuss the potential for environmental harm caused by continuing
work as well as the cost of stopping work.  If the Division
Director determines that all or part of the work affected by the
dispute should stop during the pendency of the dispute, the [DOD
Component] shall discontinue implementing those portions of the
work upon receipt of a written determination by the Division
Director that:

           (a)  The work is inadequate or defective, and

           (b)  Such inadequacy or defect is likely to yield an
adverse effect on human health or the environment, or is likely
to have a substantial adverse effect on the remedy selection or
implementation process.

     5.11  All Parties will immediately implement  any final
determination of Dispute Resolution.  Modification of documents,
if required, will be done in accordance with Section 	,
Consultation.  Resolution of a dispute pursuant to this Section
constitutes a final resolution of any dispute  arising under this
Agreement and is binding on all the  Parties.
                                12
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                         VI.  EXTENSIONS

     6.1  Either a timetable and deadline or a schedule shall be
extended upon receipt of a timely request for extension and when
good cause exists for the requested extension.  Any request for
extension by the [DOD Component] shall be submitted in writing
and shall specify:

          (a)  The timetable and deadline or the schedule that is
sought to be extended;

          (b)  The length of the extension sought;

          (c)  The good cause(s) for the extension; and

          (d)  Any related timetable and deadline or schedule
that would be affected if the extension were granted.

     6.2  Good cause exists for an extension when sought in
regard to:

          (a)  An event of force majeure;

          (b)  A delay caused by another Party's failure to meet
any requirement of this Agreement;

          (c)  A delay caused by the invocation of dispute
resolution or the initiation of judicial action;

          (d)  A delay caused, or which is likely to be caused,
by the grant of an extension in regard to another timetable and
deadline or schedule; and

          (e)  Any other event or series of events mutually
agreed to by the Parties as constituting good cause, or, absent
agreement, of the determination resulting from dispute  resolution
is that good cause exists.

     6.3  Within seven days of receipt of a request for an
extension of a timetable and deadline or a schedule, each Party
shall advise the [DOD Component] in writing of its respective
position on the request.  The failure of a Party to respond
within the seven-day period shall be deemed to constitute
concurrence in the request for extension.  If a Party does not
concur in the requested extension, it shall include in  its
statement of nonconcurrence an explanation of the basis for  its
position.

     6.4  If there is consensus among the Parties that  the
requested extension is warranted, the  [DOD Component] shall
extend the affected timetable and deadline or schedule
accordingly.  If there is no consensus among  the Parties as  to

                                13
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whether all or part of the requested extension is warranted,  the
timetable and deadline or schedule shall  not be extended except
in accordance with determination resulting from the dispute
resolution process.

     6.5  Within 14 days of receipt of one or more statements of
nonconcurrence in the requested extension, the [DOD.Component]
may invoke dispute resolution.

     6.6  A timely request for an extension shall toll any
application for judicial enforcement of the affected timetable
and deadline or schedule until a decision is reached on whether
the requested extension will be approved.  Following the grant of
an extension, an application for judicial enforcement may be
sought only to compel compliance with the timetable and deadline
or schedule as most recently extended.

     6.7  "Force majeure" means any event arising from causes
beyond the control of the [DOD Component] which causes a delay in
or prevents the performance of any obligation under this
Agreement.  "Force majeure" includes but  is not limited to:  acts
of God; fire; war; insurrection; civil disturbance; explosion;
unanticipated breakage or accident to machinery, equipment, or   ,-
lines of pipe, despite diligent maintenance; adverse weather
conditions which could not be reasonably anticipated; unusual
delay in transportation; earthquake; restraint by court order or
order of public authority; inability to obtain, at reasonable
cost and after exercise of reasonable diligence, any necessary
authorizations, approvals, permits or licenses as a result of the
action or inaction of any governmental agency or authority other
than the  [DOD Component]; delays caused by compliance with
applicable statutes or regulations governing contracting,
procurement or acquisition procedures, despite the exercise of
reasonable diligence; and insufficient availability of
appropriated funds if the [DOD Component] shall have made  timely
request for such funds as part of the budgetary process.   "Force
majeure" also includes any strike or labor dispute, whether or
not within the control of the  [DOD Component], but shall not
include increased costs or expenses of response actions, whether
or not anticipated at the time such response actions were
initiated.

     6.8  "Timetable and Deadlines" means the dates which  are
established pursuant to this Agreement for completion or
preparation of RI/FS documents.  "Deadline" shall be the time
limitation applicable to a discrete and  significant portion of
the RI/FS for which a "Deadline" has been specifically
established.  "Timetable" shall be the collective term  for all
the "Deadlines" established for the RI/FS.

     6.9  "Schedule" means the time limitations established  for
the completion of  remedial actions at the Site.

                                14
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                         VII.   EXEMPTIONS

     7.1  The obligation of the  [DoD Component] to comply with
the provisions of this Agreement may be  relieved by:   (1) a
Presidential order or exemption  issued pursuant to the provisions
of CERCLA § 120(j)(l), 42 U.S.C. § 9620(j)(l) or RCRA § 6001, 42
U.S.C. § 6961; (2) the order of  an appropriate court;  (3) the
dispute resolution process of Section 	 of this Ag-reement;
(4) any work stoppage brought about by a determination by the
[DOD Component] that activities  at the Site may create a present
danger to public health or welfare or to the environment; or  (5)
the unavailability of appropriated funds as provided in Section
	, Funding.

     7.2  Notwithstanding any other provisions of this Agreement,
the [DOD Component] reserves the right to take any action
affecting [installation] that is not consistent with this
Agreement, including use of [installation] for any purpose, upon
the occurrence of either of the  following events:

          (a)  A determination by the President that such action
is of  paramount importance; or

          (b)  A determination by the United States Secretary of
Defense or by the United States  Secretary of the  [DOD Component]
that such action is necessary and in the interest of national
defense.
                                15
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                   VIII.  STATUTORY COMPLIANCE

     8.1  The Parties intend that activities conducted under this
Agreement will be deemed to achieve compliance with CERCLA,  42
U.S.C. § 9601 et seq.;  to satisfy the corrective action
requirements of RCRA §§ 3004(u)  and 3004(v), 42 U.S.C. §§ 6924(u)
and 6924(v), for a RCRA permit,  and RCRA § 3008(h), 42 U.S.C.
§ 6928(h), for interim status facilities; and requirements of  all
applicable State laws and regulations.  Any final remedy
completed under this Agreement shall be deemed by the Parties  to
be protective of human health and the environment and the Site
shall not be subject to further corrective action by virtue of
its status as a solid waste management unit under RCRA.  RCRA
requirements shall be considered potential ARARs in accordance
with CERCLA § 121.  At the time a permit is issued to the [DOD
Component] for ongoing hazardous waste management activities at
[installation], EPA  [and the State] shall reference and
incorporate any appropriate provisions, including appropriate
timetables and deadlines or schedules  (and the provision for
extension of such timetables and deadlines or schedules), of this
Agreement into such permit.  The Parties intend that the review
of any permit conditions which reference this Agreement shall,
unless otherwise prohibited by law, only be reviewed under the
provisions of CERCLA.  Nothing in this Agreement shall alter the '
[DOD Component]"s authority with respect to removal actions
conducted pursuant to CERCLA § 104, 42 U.S.C. § 9604.

     8.2  The provisions of this Agreement contained in Section
	, Enforceability, shall be in lieu of any additional authority
of EPA [and State] under RCRA for actions conducted under this
Agreement and nothing in this Agreement shall be construed as
consent by the [DOD Component] to a RCRA § 3008(h) order issued
by EPA.

     8.3  The Parties recognize that, as is covered in more
detail in Section 	, Permits, no Federal, State, or  local
permit shall be required for the portion of any action conducted
in accordance with this Agreement entirely on-site.  For the
purposes of this Agreement, "Site" shall mean the  areal extent  of
contamination and all suitable areas  in proximity  to the
contamination necessary for implementation of the  response
action.   The Parties recognize that activities off-site and
ongoing operations not covered by this Agreement may  require  the
issuance of permits under Federal and  State laws.  This Agreement
does not affect the  requirements, if  any, to obtain such permits.

     8.4  It is the  intent of the Parties to ensure that the
environmental impacts associated with  response  actions at the
Site are thoroughly  investigated and  that the provisions
contained herein regarding public involvement and  the  selection
of a final remedial  action are appropriate and  protective of
human health and the environment.

                                16
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                       IX.  ENFORCEABILITY

     9.1  The Parties agree that all Parties hereto shall have
the right to enforce this Agreement.

     9.2  The Parties further agree that, upon the effective date
of this Agreement, the following provisions of this Agreement are
enforceable by any person to the extent provided by "CERCLA § 310
and violations of these provisions may further be subject to
civil penalties to the extent provided by CERCLA § 310(c) and
§ 109:

          (a)  Any standard, regulation, condition, requirement
or order which has become effective under CERCLA and is
incorporated into this Agreement;

          (b)  Any timetable and deadlines, as defined in Section
	/ established pursuant to the terms of this Agreement for
completion of the RI/FS; and

          (c)  All terms and conditions of this Agreement
relating to the implementation and completion of selected interim
and final remedial actions.

     9.3  Nothing in this Agreement shall be construed as
authorizing any person to seek judicial review of any  action of
the [DOD Component]  or EPA in contravention of CERCLA  §  310(d) &
(e) and § 113(h), 42 U.S.C. § 9659(d) &  (e) and § 9613 (h).
                                17
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                          X.  FUNDING

     10.1  Funds authorized  and  appropriated annually by Congress
under the "Environmental Restoration,  Defense" appropriation in
the Department of Defense Appropriation Act and allocated by the
DASD(E)  to the [DOD Component]  will be the source of funds for
activities required by this  Agreement consistent wiih SARA § 211,
10 U.S.C. chapter 160.  The  [DOD Component] agrees to seek
sufficient DERA funding through the DOD budgetary process to
fulfill  its obligations under this Agreement.

     10.2  It is the expectation of the Parties that the
activities contemplated by this  Agreement will be fully funded.
However, should the Environmental Restoration, Defense
appropriation be inadequate  in any year to meet the total [DOD
Component] CERCLA implementation requirements, the DOD shall
employ and the [DOD Component]  shall follow a standardized DOD
prioritization process which allocates that year's appropriations
in a manner which maximizes  the protection of human health and
the environment.   The Defense Site Remediation Priority Model
shall be developed and utilized with the assistance of EPA and
the states.

     10.3  In accordance with CERCLA § 120 (e) (5) (B), 42 U.S.C.
§ 9620,  the [DOD Component]  shall annually provide Congress with
the specific cost estimates and budgetary proposals involved  in
this Agreement.  The timetable and deadlines or schedule  for
completing the requirements of this Agreement shall be adjusted
as necessary to accommodate any funding shortfall.

     10.4  Nothing in this Agreement shall be construed to
require  the [DOD Component]  to obligate funds in violation of  the
Anti-Deficiency Act, 31 U.S.C. § 1341.
                                18
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Guidance for Setting a Timetable and Deadlines for Federal
Facility Agreements Under CERCLA

     During recent negotiations for CERCLA agreements with EPA,
the setting of a timetable and deadlines for the RI/FS process
have become an issue.  We have agreed with EPA that "primary
documents" are the only ones for which deadlines can be
established and that the timetable for the RI/FS will consist of
the deadlines for the primary documents.  Primary documents are
defined in the "Consultation with EPA and State Authorities"
Section of the Agreements.  However, because remedial
investigations and feasibility studies are scientific/engineering
research processes to discover the unknown site parameters, it is
usually impossible to predict with certainty when all of these
studies will be completed.  Therefore, service components should
not feel compelled to agree to meet deadlines for initiation or
completion of projects for which the "deadline" in question may
be known at the outset to be clearly beyond their control.  They
should try to establish reasonable measures of pace and progress
for deadlines that are set.

     An example of an unacceptable deadline would be to agree to
a delivery date for a Remedial Investigation  (RI) final report -~
when commonly during this problem investigation  (discovery) phase
of the project the completion is often quite unpredictable.  An
example of an acceptable deadline would be one for the submittal
of the RI workplans.  As another good deadline example, we could
agree to provide a list of preliminary cleanup options in a set
time after the RI final report is completed.  Also, we could
agree to a deadline that establishes a point where a decision can
be made on when a study will be done because of the data we will
have collected by the decision point.

     Individual installations are the best judge of what
deadlines they can meet and should work with EPA creatively to
establish them so as show how we plan to proceed but not promise
what we cannot deliver.
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           CHAPTER 9



DOE GUIDANCE/PROGRAM DESCRIPTION
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                                 DISCLAIMER


THE POUCIES AND GUIDANCE IN THIS CHAPTER WERE PRODUCED BY THE DEPARTMENT OF
ENERGY AND DO NOT NECESSARILY REFLECT THE VIEWS OR POUCIES OF EPA.
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                                      CHAPTER 9
                         DOE GUIDANCE/PROGRAM DESCRIPTION

Department of Energy Environmental Restoration and Waste Management Five-year Plan

DOE Memorandum:  Policy on Future Environmental Compliance Agreements

DOE Memorandum:  Negotiation of Consent Decrees,  Compliance Agreements and any Similar
Agreements

DOE Memorandum:  DOE Compliance Agreements

DOE Memorandum:  Agreement with the Environmental Protection Agency - Model Provisions for
CERCLA Federal Facility Agreements

DOE News:  DOE Invites Governors to Negotiate Environmental Compliance Agreements

DOE Order: Environmental Compliance Issue Coordination

Secretary of Energy Notice: Setting the New DOE Course
                                                                               1/90
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        DEPARTMENT OF ENERGY ENVIRONMENTAL RESTORATION
                AND WASTE MANAGEMENT FIVE-YEAR PLAN
                ENVIRONMENTAL RESTORATION PROGRAM

                                 R. P. Whitfield
                    U. S. Department  of Energy, Headquarters
                          Germantown, Maryland  20874
                                 September 1989
                                  ABSTRACT

      On September 1, 1989, the  Department of Energy (DOE) made available for
public comment the first Five-Year Plan for Environmental Restoration and Waste
Management. This plan establishes an agenda for compliance and cleanup against
which progress will be measured, and it establishes a 30-year goal for the completion of
environmental cleanup. Specific implementation plans are being  developed by the
DOE's field Operations Offices. The Five-Year Plan and Operations Office
Implementation plans are "living documents" that  will be updated annually.  The
Environmental Restoration (ER) program, as addressed  by the plans, deals with the
assessment and  cleanup of inactive potential release sites, the decontamination and
decommissioning of surplus nuclear facilities, and  technology development needed for
remediation activities. Preparation  of the Five-Year Plan began in March 1989, when a
task force was created, and a guidance was issued for field input that provided the
basis for the plan.  Validated  field  input was integrated and manipulated electronically
to generate the data needed  to establish the problem scope, priorities, funding
requirements, and other elements  of the plan. The data  show that the problems within
the ER program include approximately 3,700 potential release sites, more than 5,000
vicinity properties connected  with  the remediation of uranium  mill tailings, and
approximately 500  contaminated facilities. The estimated funding requirement for all
ER activities for the period of 1991 through 1995 is $6.8 billion. In addition, several
key needs have  been identified while preparing the plan.  DOE  has developed strategic
objectives for ER that include an aggressive applied research and development effort,
and it is taking  actions  to address  the problems and needs associated with
environmental restoration and waste management. As part of the implementation
process, these efforts include participation and review by involved parties .
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     U.S. DEPARTMENT OF ENERGY ENVIRONMENTAL RESTORATION
                AND WASTE MANAGEMENT FIVE-YEAR PLAN
                ENVIRONMENTAL RESTORATION PROGRAM

      On September 1,  1989, the Department of Energy (DOE) made available  for
public comment the first Five-Year Plan  for Environmental Restoration and Waste
Management.  This plan establishes an agenda for compliance and cleanup against
which progress will be measured.  This document will be the directive for the
development of specific implementation plans by DOE's eight field Operations Offices.

      The Environmental  Restoration Program (ER) is concerned with the  assessment
and cleanup of facilities and sites that are no longer a part of active operations.
Various amounts and types of wastes have accumulated  at these facilities and sites as a
result of defense programs, nuclear energy, and energy research program spanning
nearly five decades.  Included within the  scope of ER are Remedial Actions  (RA) and
Decontamination and Decommissioning (D&D).  In addition, technology development
and demonstration necessary for the assessment and cleanup of inactive  sites and
facilities are  within the scope of the ER  program.

      The RA program is concerned with the assessment and cleanup of inactive,
potential release sites including  burial grounds, spill sites, pits,  cribs, lagoons, buried
tanks, and uranium mill tailings.  Active disposal facilities do not fall within the scope
of RA.  The tasks associated with ER encompass site discovery, preliminary assessment
and inspection, site characterization, analysis of cleanup  options, selection of  remedy,
cleanup and site closure, and site monitoring.

      The D&D program addresses the  safe caretaking of surplus nuclear facilities
until either decontamination for reuse or their complete removal.  This includes all
tasks connected with assessment and characterization, environmental review,
engineering,  D&D operations, and closeout.

       Preparation of the  Five-Year Plan, including the portion dealing  with ER began
in the early spring of 1989.  A task force was created, and a guidance was issued to the
eight Operations Offices requesting input on activities proposed during the five-year
planning window. The guidance also defined planning areas, established criteria  for
assigning priority levels, and designed the format and content of input on proposed
activities.

      Approximately 800 activity data sheets (ADSs) were prepared by  the eight
Operations Offices for ER activities and  were submitted as input to the  overall Five-
Year Plan. The ADSs were submitted to the task force in the form of a data base
diskette as well as hard copy.  The input from the field was reviewed by the task force
to ensure  accuracy, completeness, and conformance with the guidance. The  validated
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data were then compiled into a computer data base by which the information was
integrated and managed.  Each ADS was assigned a Budget and Reporting (B&R)
code and subprogram category (e.g., ER), which allowed the input data to be sorted
electronically with respect to program (e.g., Defense Programs), subprogram, category
(CERCLA, RCRA, etc.), and phase (assessment or cleanup).  The data base also
included the assigned priority level, descriptive key words, and funding summaries.
Other information  provided on the ADS hard copies, but not part of the data base
included cost estimates, major milestones, major items of cost, and a statement of the
level of confidence in the information presented.

      ER activities are organized  into four interim priority categories. The priority
assignments  will be reviewed by DOE on an annual basis and, to the extent that
circumstances associated with a specific activity  change,  its priority may change
correspondingly. The priorities are listed below.

      Priority 1 includes (1) protecting workers  and the public from near-term
(i.e., within 5 years)  potential health risks, (2) containing near-term off-site spread of
groundwater and soil contamination, (3)  preventing unnecessary disruption of ongoing
assessment and cleanup work, and (4)  preclosure surveillance and D&D.

      Priority 2 include activities,  not otherwise assigned to Priority  1, that are required
by in-force agreements or agreements expected  to be placed in force during 1991.

      Priority 3 includes all activities, not assigned to Priorities 1 and  2, that will best
(1) reduce the potential for health and environmental risk, (2) promote regulatory
compliance,  (3) reduce public concern, and (4)  ensure no disruption in DOE's missions.

      Priority 4 includes activities not  covered under Priorities 1, 2,  and 3.  Priority 4
is concerned with D&D activities that involve no present imperatives or significant
benefits associated with immediate cleanup.

      Approximately 3,700 potential release sites have been identified for RA. These
site include about 2,480,000 cubic meters of low level waste consisting  of discarded
materials such as tools,  paper, and rags,  primarily in burial grounds,  to be assessed and
remediated as appropriate.  In addition,  unknown portions of 192,000 cubic meters of
pre-1970 buried transuranic (TRU) waste are in inactive sites and  as such are within
the scope of ER.  TRU waste refers to substances contaminated with manmade
radioactive elements, principally plutonium, having an atomic number greater than that
of uranium,  a half-life greater than 20 years, and a concentration greater than 100
nanocuries per  gram. Examples of TRU waste include  metal, glassware, process
equipment, soil, filters, and clothing. Remaining sites consist of hazardous and mixed
hazardous and radioactive waste releases. In addition, more than 5,000 vicinity
properties are connected with the  Uranium Mill Tailings Remedial Action Program.
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The principal concerns connected with these RAs pertain to groundwater and soil
contamination.

      Approximately 500 contaminated facilities are included under the D&D effort.
Groundwater and soil contamination are associated with only a relatively small number
of facilities.  The majority of activities involve assessment and cleanup of facilities from
which there has been no release  of radioactive, hazardous, or mixed substances.  The
principal concerns pertain to the  collection, retention, and ultimate disposal of
contaminating substances and debris.

      The 30-year goal for ER is to  ensure that risks to the environment and to
human health and safety posed by inactive and surplus facilities and sites are either
eliminated or reduced to prescribed, safe levels.  A set of discrete strategic objectives
connected with RA and D&D define the overall approach to achieving this goal.

      The objectives of RA are  to (1) identify inactive, contaminated facilities and sites
at DOE  nuclear installations,  (2)  assess these facilities and sites to determine the
nature and extent of contamination, (3) confine and contain existing contamination to
the extent necessary for minimizing its further spread, (4) provide for negotiated
agreements with regulatory schedules for  the cleanup of these facilities and sites,
(5) ensure that cleanup is carried out in strict compliance with these agreements, and
(6) provide long-term monitoring to ensure continuing compliance.

      The strategic objectives associated with  D&D are to (1) maintain facilities
awaiting  either decontamination or decommissioning in a manner that limits worker,
public, and environmental exposure to potential hazards; (2) assess facilities to
determine the nature and extent  of contamination; (3) decontaminate facilities
designated for reuse to  the extent necessary for compliance with approved health and
safety standards; and (4) decommission all other facilities in accordance with  the
requirements set forth in an  approved environmental compliance plan.

      The role of applied R&D  in the strategic approach for ER is to (1) provide an
improved technical and economic basis for dealing with  environmental and health
hazards through development of  improved and new assessment  and cleanup
technologies, (2) reduce the potential for exposure of the public through development
of automated remote handling technologies,  and (3) broaden the technical base by
adapting technologies not previously considered for application to this field.   R&D
activities that provide a benefit return in a short time frame will be emphasized.

      While preparing  the plan,  several key needs were identified, including (1) a
centralized management structure for Environmental Restoration and Waste
Management Activities; (2) a cultural transition from a production-oriented mentality to
one stressing open communication, clearly understood and demonstrated priorities for
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environmental stewardship, and accountable management;  (3) a national consensus on
goals, objectives, and implementation strategy; (4) an aggressive applied research,
development, demonstration, testing, and evaluation program; (5) adequate resources
including sufficient personnel with proper qualifications to  manage and review the work;
and (6) consistency in the implementation of environmental regulations.

       DOE is taking actions to address the problems and needs associated with
Environmental Restoration and Waste Management. Specifically, DOE will (1) comply
with environmental and health related laws; (2) develop a  national  prioritization system
with state, tribal, and other public involvement; (3)  contain known contamination and
vigorously assess the uncertain nature and extent of contamination to enable realistic
planning, scheduling, and budgeting; (4) support the establishment of interagency
agreements and fulfill the requirements of existing compliance agreements; (5) release
health records of DOE  employees for scientific analysis; (6) implement waste
minimization programs;  (7) establish an Applied R&D  program involving university
research capabilities, industry, national laboratories,  and other federal  agencies to
determine and rank R&D needs and pursue new and improved technologies for
minimization and remediation; (8) effect  a  cultural shift toward clear and open
communications; (9) work diligently to achieve congressional support; (10) take
innovative steps to develop, motivate, and allocate the  human resources needed to
implement compliance and cleanup  activities; (11) recognize tribal sovereignty and
treaty rights related to  tribal and ceded lands; and  (12) continually  examine
environmental regulations to ensure that  DOEs compliance actions  effectively reduce
risk to human health and the environment.

       Issuance of the first Five-Year Plan  initiates an ongoing process within DOE that
sets the path for achievement of the goal for completion of environmental cleanup
within 30 years.  Operations Offices have been directed to develop five-year
implementation plans that will include participation  and review by involved regional
parties in the same manner as the  DOE  Five-Year  Plan.  The implementation plans
will be used in the management and implementation of actions undertaken by each
Operations Office.  Future annual updates  to the Five-Year Plan, Implementation
Plans, and accountability will follow the cycle illustrated in Fig. 1.  The second and
subsequent planning/implementation cycles  will follow the federal budgeting calendar as
shown in Fig. 2.

       Fig. 3 illustrates funding requirements estimated for each year of the period
from  1989 through 1995 by priority  level  and phase  (assessment or  cleanup).  The
amounts shown for 1989 are those  currently appropriated.   For 1990, the funds
identified are estimated requirements for all activities.  The Funding levels shown  for
1991 through 1995 are  estimates of requirements for funding  all RA, D&D, and R&D
activities.  They do not  represent a  projection of DOE budgets. The total for this
period is $6.8 billion.
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                                                                                     i
        Review

        NAS
        STGWG
        Etc
       CD
       i CD
       ICO
       1 °'
                                DOE 5-Year Plan
      ER and Waste
       Management
         Operations Offices

         Consolidated ADSs
5-YEAR PLAN
  UPDATE
                              Site-Soecific Work Plans
                                 Oversign:

                                 DOE-ES&H
                                 US EPA
                                 ACNFS    ,
                                 DNFSB    i
                                 States     I
                                 Local      !
                                           ',•33
                                            c
                                            i
                                                                      ,
                                                                      !CJ
              Operations Offices
  5-YEAR PLAN
IMPLEMENTATION | implementation Plans
Figure 1.   The annual planning and implementation cycle includes both internal and
            external review and accountability.  NAS = National Academy of Sciences:
            STGWG = State and Tribal Government Working Group;
            ACNFS = Advisory Committee on Nuclear Facility Safety;
            DNFSB = Defense Nuclear Facilities Safety Board.
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                                                 •989
                                                                                   •990
          -cnvitv OescriD'oon
                                  »orn M»v • jun«
                                                Auq  S»o Oc1  Sov
                                                                                            ».«3  Stov Oa
    Submit ano validate FY 1991
    acgvitv aaia sneets lAOSs)
 £  Prepare ana issue initial Department
    Five Year Plan (1991-1995)

 *  Public Comment oenod


 ^ Operations Offices prepare
    implementation pians (based on
    jeoanment Five Year Plan)
     Submit ana validate FY 1992 ADSs
     Deveioo ana initiate National
     =riontizatjon System


     Preoare and issue Oeoanment
     c.ve Year Plan (1992-1996)
     Ooerations Offices prepare
     implementation plans
     Dreoare internal Review ot Budget
     (IRB\ ano OMB subminal
     Prepare and submit FY 1992
     Operations Office budget proposals
Figure  2.       The second and subsequent planning/implementation cycles will  follow  the
                  Federal  budgeting calendar.  Asterisks signal activities involving State,  Tribal.
                  and public participation.
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             $ in Millions
       1000
        900 -
        800 ~:
        700 -
     Pfiomy 4
     Priority 3
     Pnoray i    Assessment Cleanup
                      Year
                                                                               95
Figure 3.
Estimated funding  requirements by pnonu.
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                                                        SEN-4-89
                     THE SECRETARY OF ENERGY
                        WASHINGTON DC 205CS
                             March 17, 1989
MEMORANDUM FOR SECRETARIAL OFFICERS
               OPERATIONS OFFICE MANAGERS

Subject:  Negotiation of Consent Decrees, Compliance
          Agreements and any Similar Agreements


On December 20, 1988, former Deputy Secretary Salgado
requested information from all Operations Office Managers
concerning their plans for negotiating environmental
compliance agreements in fiscal year 1989.  A list of current
negotiations (attached) has been prepared from the Managers'
responses to that request, and from other sources.  Please
inform me by March 22, 1989, of any current negotiations that
should be added to this list.

In addition, I wish to be personally involved in any future
decisions to enter into negotiations for compliance
agreements or consent decrees which could have the effect
of committing the Department's resources beyond funds that
are currently available to the official signing the
agreement.  Please notify me, at the earliest opportunity,
of the prospect of entering into such negotiations.  This
notification should be in addition to your compliance with
DOE Order 5400.2, requiring notification of the Office of
Environment, Safety and Health for all significant
environmental compliance issues.
                            Admiral, U.S. Navy (Retired)

Attachment               l
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                       CURRENT NEGOTIATIONS

DOE/EPA

Portsmouth               RCRA/CERCLA
Kansas City Plant*       RCRA/CERCLA
LANL*                    RCRA/CERCLA
FWPC                     CAA


DOE/STATE

Portsmouth               RCRA/CERCLA
SRP                      RCRA
LANL                     RCRA


DOE/EPA/STATE

Hanford**                RCRA/CERCLA
INEL***                  RCRA/CERCLA
Mound                    RCRA/CERCLA
RFP***                   RCRA/CERCLA
SRP                      RCRA/CERCLA
Y-12/ORNL/K-25           RCRA/CERCLA
Pantax                   RCRA/CERCLA
Maywood                  CERCLA
W.R.  Grace               CERCLA
Brookhaven**             CERCLA
  •DOE's preference is to include state in negotiations.

 •*DOE/State/EPA have signed an Agreement in Principle and a
 Notice of Intent to sign the FFA/Consent Order after a public
 comment period.

•••Preliminary discussions.
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                       The Secretary of Energy
                          Washington, DC 20585
                                     April  27,  1989
MEMORANDUM FOR ALL DEPARTMENTAL ELEMENTS

SUBJECT:  Policy on Future Environmental Compliance
          Agreements

As I have maintained 1n both Internal tnd external statements, I
im firmly committed to environmental compliance and cleanup at
all of the Department's facilities.  The Department's mission can
be fulfilled only 1f 1t 1s carried out safely and In a manner
that addresses public health and environmental concerns.  As one
of my first high priority Initiatives, I have appointed
Mr. Leo Duffy to head a task force to prepare an Integrated
5 year plan to characterize and prioritize all cleanup activities
at Department of Energy sites. This 5 year plan will be completed
1n August 1989, and 1t will coordinate and consolidate all
Department environmental restoration, corrective actions, and
waste management activities Into a single, Integrated plan of
action.  I am fully committed to the terms and Intent of the
President's Fiscal Year 1990 budget and to the congressional
review process now occurring.  The 5 year plan will be used in
part to reaffirm Fiscal Year 1990 programs and provide a baseline
for Fiscal Year 1991 and outyear budget requests.  It Is
Important to ensure that all environmental compliance agreements
are consistent with the 5 year plan and compatible with the
priorities established.

I understand that a number of environmental Compliance agreements
are In various stages of discussion or negotiation with Federal
and State agencies.  It Is mandatory that my staff and I review
any proposed agreement before commitments are made and that these
draft agreements be closely coordinated with the 5 year plan
development.  The Office of Environment, Safety, and Health, Is
responsible for the coordination of significant environmental
compliance Issues and agreements and for oversight of
Departmental compliance activities to ensure consistent
application of Departmental environmental policy and guidance.
Leo Duffy Is responsible to ensure that pending and future
environmental compliance agreements are consistent with the
5 year plan.
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In order to support my commitment to environmental  compliance and
cleanup while the 5 year plan Is being developed and Implemented,
the following policy guidance will be followed by all
Departmental fitments:

o   All current draft or pending environmental compliance
    agreements should Immediately be forwarded to the Office of
    Environment, Safety, and Health for distribution and
    coordination with Leo Duffy, the Office of General Counsel,
    and the appropriate program offices at DOE Headquarters.

o   Field offices may proceed with negotiations on environmental
    compliance agreements consistent with the commitments that
    are contained In the Fiscal Year 1989 and 1990 budgets for
    Department programs.  These negotiations should be conducted
    1n accordance with Field Office prepared negotiating
    strategies that are preapproved by the appropriate
    Headquarters offices.

o   Proposed agreements may contain commitments to activities In
    Fiscal Years 1989 and 1990, provided that they are consistent
    with budgets that have been endorsed by the Administration.

o   Activities that require funding beyond Fiscal Year 1990 may
    not be discussed 1n definitive dollar form during
    negotiations unless first discussed with Mr. Duffy, as head
    of the team developing the 5 year plan.

o   Environmental compliance agreements with commitments beyond
    1990 must be consistent and compatible with the overall
    Department of Energy program and priorities to be established
    1n the 5 year plan.  These agreements must be approved by the
    Secretary prior to their submlttal to State or Environmental
    Protection Agency officials for their final approval.

All affected Federal and State agencies will be reassured by
Department of Energy Headquarters In the near future that the
Department remains committed to an environmental compliance
program that 1s conducted 1n a systematic fashion for the entire
Department, In cooperation with Congress, other Federal agencies,
and State officials.  Adherence to this policy on future
environmental compliance agreements 1s essential to the
establishment of a framework that will allow the Department most
effectively to address Its environmental concerns 1n the Nation's
best Interest.
                              Admiral, U.S. Navy (Retired)
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                                                           K^j.
                                                   ^ ., , /_^  Attachment 2
United States Government _ _   7 Department of Ener
memorandum
  DATE   December 20,  1988
REPLY TO
ATTN Of   S_2

SUBJECT   Department of Energy  Compliance Agreements


   T°   Managers, DOE Operations Offices

            In late  December 1987, the Office of Environment, Safety
       and Health (EH)  sent  the attached memorandum  identifying
       priorities for Department of Energy (DOE) compliance activities
       related to the Comprehensive Environmental  Response, Compensation
       and Liability Act  (CERCLA) , the Superfund Amendments and
       Reauthorization Act  (SARA) , and the Resource  Conservation and
       Recovery Act  (RCRA) .   In addition, the attached memorandum
       encouraged the initiation and negotiation of  compliance agreements
       with the Environmental Protection Agency (EPA) and the States at
       nine major DOE facilities.  To assist and expedite the negotiation
       of site-specific agreements, DOE reached agreement with EPA in
       May 1988, on  10 policy-related provisions for inclusion in
       interagency agreements.

            We acknowledge that substantial progress is being made
       towards negotiating and implementing comprehensive agreements at
       several DOE facilities.  More specifically,  in early November
       1988 the San  Francisco Operations Office executed DOE's first
       CERCLA Section 120 Federal Facility Agreement (FFA) with EPA and
       the State of  California for the Lawrence Livermore National
       Laboratory.  Furthermore, we understand that  negotiations are
       nearing completion for the RCRA/CERCLA Consent Order and
       Compliance Agreement  for the Hanford Site and the CERCLA Section
       120 FFA for the -Monticel lo Site.  Negotiations are also underway
       for a CERCLA  Section  120 FFA for the-'Mound  Plant.  In addition,
       the existing  Federal  Facility Compliance Agreement for the Feed
       Materials Production  Center (FMPC) was modified this summer to
       include an enf orceability provision.

            The purpose of this memorandum is to again reaffirm DOE's
       commitment to working with EPA and the States to establish
       enforceable agreements at its major facilities and, in
       particular, at the facilities identified in the attached
       memorandum which are  not mentioned in the above paragraph.
       These facilities are:

          (1)   Savannah River Plant,
          (2)   Los Alamos National Laboratory/
          (3)   Oak Ridge Site  (3 facilities),
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   (4)   Idaho National Engineering Laboratory*,
   (5)   Lawrence Livermore National Laboratory - Site 300,
   (6)   Brookhaven National laboratory.

*Existing agreement will need to be updated when facility is
listed on the National Priorities List.

     To assist EH in evaluating progress regarding compliance
agreements at these facilities, I request that you provide
Raymond p. Berube, Deputy Assistant Secretary, Office of
Environment (EH-20)/ with the current compliance status and
summary of what has been done to achieve comprehensive agreements
with EPA and the State at each of these facilities.  In addition,
please include your plans for Fiscal Year 1989 regarding
negotiations and/or implementation of compliance agreements at
each facility.  This information is also requested for the.Rocky
Flats Plant because the current Compliance Agreement requirements
have been successfully fulfilled and another agreement is needed
to guide the cleanup activities.  information on the current and
projected compliance status of the FMPC Compliance Agreement
should also be provided given the expanded scope for the remedial
investigation/feasibility study work plan.  Please provide your
response to Mr. Berube no later than January 6, 1989.

     If you have any questions on this memorandum, please call
John C. Tseng, Director, Office of Environmental Guidance and
Compliance, on FTS 896-9024.              .

                                v   *     ^      \
                              Joseph F. Salgado
                              Deputy Secretary
Attachment
cc:  Assistant Secretary for Defense Programs
     Assistant Secretary, Management and Administration
     Assistant secretary for Nuclear Energy
     Assistant Secretary for Fossil Energy
     Assistant secretary, Conservation and Renewable Energy
     Assistant Secretary for Congressional, Intergovernmental
       and Public Affairs
     Director of Civilian Radioactive Waste Management
     General Counsel
     Director of Energy Research
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DOE F 132S.I
 2-64)

 nited States Government
     Ci
                                                         Department of Energy
     emorandum
  DATE

.1EPLY TO
ATTNOF:
SUBJECT:
       May 31, 1988
Agreement  with the Environmental Protection Agency -- Model  Provisions for
CERCLA Federal Facility  Agreements
    T0:  Managers, DOE Operations Office
       Secretarial Officers
       Administrator, Bonneville Power Administration
       Administrator, Western Area  Power Administration

       I am pleased  to  send to you  model provisions  which the Department  of Energy
       (DOE) Headquarters  and  the Environmental Protection Agency (EPA)
       Headquarters  have mutually agreed to for DOE  Federal Facility Agreements
       (FFA) under the Comprehensive Environmental Response,  Compensation, and
       Liability Act  (CERCLA).   EPA is concurrently  transmitting these provisions
       to its  Regional Administrators.  I appreciate the assistance you and your
       staff  have provided us in the development and resolution of issues related
       to these provisions.

       The attached  provisions deal primarily with policy issues which required
       agreement between DOE and EPA before site-specific agreements could be
       finalized.  The attached language should be incorporated into the agreements
       you are now negotiating and  into future agreements.  Language in brackets
       indicates those areas which  can be modified depending on site-specific
       considerations.

       Please  note that there are many other important provisions of agreements
       which  must be negotiated on  a site-specific basis with the EPA  Region,
       notably those provisions dealing with the actual  work that needs to be
       performed at  the DOE facility and the schedules to be met.  Also,  individual
       state  concerns should be factored into each agreement, as it  is highly
       desirable that states participate in Federal  facility cleanups.

       I hope  these  model provisions will  assist those of you who are currently
       negotiating a CERCLA FFA with EPA in quickly  concluding your negotiations.
       We look forward  to coordinating the review of these agreements  at DOE
       Headquarters through the process established  by DOE Order  5400.2,
       Environmental Compliance Issue Coordination.

       If you  have any questions concerning these provisions or their
       implementation,  please  call  Ms. Kathleen Taimi on FTS 896-2113 or
       the Compliance Coordinator assigned to your office.
                                   Ernest C. Ba.
                                   Assistant Secretary
                                   Environment, Safety
                                               and Health
       Attachment
-------
                                   1NEWS
NEWS MEDIA CONTACT:
(202) 586-5806
                                         FOR IMMEDIATE RELEASE
                                         August 21, 1989
                    DOE INVITES GOVERNORS TO NEGOTIATE
                    ENVIRONMENTAL COMPLIANCE AGREEMENTS

     The  Department of Energy (DOE)  has invited the governors  of eleven states

hosting DOE nuclear facilities to negotiate formal, comprehensive agreements

to provide direct access and enhance environmental monitoring  by the states at

the department's facilities.

     The  agreements are part of the  10-point initiative announced June 27 by

Secretary James D. Vatkins to improve DOE's accountability in  the areas of

environmental protection, public health and safety. Each agreement is to

include provisions for independent validation of environmental monitoring

data;  establishment of environmental cleanup schedules; and a  mechanism for

prioritiration o£ DOE cleanup activities to meet timetables contained in

federal facility compliance agreements.

     "This further reiterates the commitment of Admiral Watkins, as set forth

in his 10-point initiative, to achieve full accountability in  the areas of

environment, safety and health and to restore the public's confidence in DOE's

ability to operate its facilities safely, and in compliance with the law,"

said Deputy Secretary W. Henson Moore.

                              (MORE)

R-89-099
-------
                                                                                        i
                                 -2-

     "These agreements will be unprecedented in their scope, and in the degree
of access to DOE facilities that will be provided to the states. Ve have taken
this initiative to demonstrate our resolve to cooperate fully with those
states hosting DOE nuclear facilities to assure safe operation of those
facilities."

     The negotiations are expected to result in agreements similar to a model
agreement reached between the Colorado Department of Health and DOE regarding
the Rocky Flats plant near Denver. That agreement, signed by Admiral Vatkins
and Governor Roy Romer on June 28, includes provisions for:

     o Expanded environmental monitoring of air, water and soil, including
       greater access to the site for state regulators

     o Additional technical and financial support for state oversight
       activities at the plant

     o An accelerated schedule for completing background investigations for
       granting security clearances to state regulators

     Deputy Secretary Moore added, "While some states already have existing
compliance agreements, this initiative will supplement those agreements so
that each state is afforded an adequate level of on-site, hands-on monitoring
capability. I have personally spoken with the governors or their
representatives, and assured them that our goal is to provide them with a more
substantive role in overseeing DOE's compliance with the law, and helping them
assure their citizens that DOE operations do not constitute a health hazard.
We will work very closely with these states to demonstrate our commitment to
live up to their standards and operate our facilities responsibly."

     The eleven states are: California, Florida, Idaho, Missouri, Nevada, New
Mexico, Ohio, South Carolina, Tennessee, Texas and Washington.

                                   -DOE-

R-89-099
-------
U.S.  Department of  Energy                                   ORDER
         Washington, D.C.
                                                                 . DOE  5400.2
                                                                     8-13-87

SUBJECT:  ENVIRONMENTAL COMPLIANCE ISSUE COORDINATION
 1.  PURPOSE.  To establish the Department  of  Energy  (DOE) requirements for
     coordination of significant environmental  compliance issues to ensure
     timely development and consistent application of Departmental environmental
     policy and guidance.

 2.  SCOPE.  The provisions of this Order apply to all Departmental Elements and
     contractors performing work for the  Department as provided by law and/or
     contract and as implemented by the appropriate contracting officer, where
     DOE has authority to  establish and enforce environmental protection, safety,
     and health protection requirements.

 3.  DEFINITIONS.

     a.  Significant Environmental  Compliance  Issue.  A  significant environmental
         compliance Issue  is one which is or has  the  potential of being precedent
         setting or controversial,  and/or Involves Headquarters notification,
         concurrence, or approval.   Examples of environmental compliance issues
         which may be significant Include,  but  are not limited to:

         (1)  Settlement agreements Involving  DOE and other potentially responsible
              parties and  regulatory authorities  for  cleanup of hazardous waste site

         (2)  Hazardous waste and mixed waste  permits and permit applications.

         (3)  Proposed consent decrees and  consent administrative orders related
              to environmental compliance.

         (4)  Notices of violations, administrative orders, or other notifications
              from regulatory authorities such  as State  or Environmental Protection
              Agency (EPA) warning  letters  or  similar actions alleging lack of
              compliance with environmental regulations  or requirements.

         (5)  Proposed Federal Facility Compliance Agreements, memorandums of
              understanding, or any other agreements  Involving environmental
              compliance with local, State, or  Federal entities.

         (6)  Lawsuits pertaining to environmental compliance, Including proposed
              settlements, notices  of intent to sue,  and other related matters.
DISTRIBUTION:                                         INITIATED BY:
All Departmental  Elements                          Assistant  Secretary for
                                                    '  Environment, Safety, and Healt
-------
 4                                                           DOE 5400.2
                                                             8-13-87


        (7)  Results of verification activities such as inspections,  audits,  reviews,
             surveillances, appraisals, or assessments by contractors,  field
             elements, Headquarters, or Federal, State, and local  regulatory
             agencies that reveal noncompllance Issues.

        (8)  Reports or other notifications to or from Federal,  State,  or local
             regulatory authorities concerning violations of environmental  regu-
             lations, permits, or agreements.

    b.  Coordination Process.  The coordination process is the means  by which
        significant environmental compliance issues will be resolved  or dissemi-
        nated to ensure timely development and consistent application of
        Departmental environmental policy and guidance.

4.  RESPONSIBILITIES.

    a.  Assistant Secretary for Environment. Safety, and Health  (EH-1)  shall:

        (1)  Coordinate the timely review, resolution, and dissemination of
             significant environmental issues and related activities  with the
             Office of the General Counsel, affected Headquarters  program
             organizations (including Naval Reactors) and affected field
             elements, as appropriate.

        (2)  Promptly notify Headquarters elements, Including the  Office of the
             General Counsel, of significant environmental compliance issues  and
             related activities bearing on their responsibilities.

        (3)  Identify, in consultation with appropriate field and  Headquarters
             elements, the Departmental Element which will act  as  lead  office
             to resolve the significant environmental compliance issue  or
             related matter.  Where issues crosscut program offices,  EH will
             generally be identified as the lead office.  Where  issues  are raised
             specific to the requirements of nuclear waste policy  legislation,
             the Office of Civilian Radioactive Waste Management (RW) will be
             identified as the lead office unless otherwise negotiated  between
             EH and RW.

        (4)  When identified as the designated lead office for the resolution
             of a significant environmental compliance Issue or related matter,
             take such actions as necessary for resolution in coordination with
             other Departmental Elements.

        (5)  Request information, as necessary, from program and field  elements to:
             facilitate Identification and resolution of significant  environmental
             compliance issues and related activities; enable inter-  and intra-
             agency coordination; and support the Office of Congressional,
             Intergovernmental, and Public Affairs (CP) in the development of
             appropriate responses to public, media, and congressional  requests.
-------
DOE 5400.2
8-13-87
         (6)  Assist field and Headquarters elements in  resolving  significant
              environmental compliance Issues with
              agencies.

         (7)  Report the status of significant environmental  compliance  Issues  and
              related activities to appropriate Headquarters  and  field  elements
              to assure timely resolutions.

         (8)  Document resolutions of significant environmental compliance  issues
              and related matters and provide copies to  program and field elements
              to ensure consistent and timely application of  Departmental environ-
              mental policy and guidance.

         (9)  Carry out these responsibilities through the Office  of Environmental
              Guidance and Compliance (EH-23), the lead  office within EH  designated
              to coordinate significant environmental compliance  issues and related
              actions.

     b.  Program Senior Official  shall:

         (1)  Advise EH-23, in a timely manner of the following:

              (a)  Significant programmatic environment  compliance issues requiring
                   resolution.

              (b)  Significant environmental compliance  Issues and related  activities
                   which comes to his/her attention independently and which need
                   resolution.

              (c)  Programmatic Impact of significant environmental compliance
                   issues and related activities raised  for resolution  by field
                   elements.

         (2)  Provide or assist 1n obtaining information requested by EH-23 to
              enable appropriate responses to requests for information, or  for
              resolution of significant environmental compliance  Issues.

         (3)  When Identified as the designated lead office for the resolution
              of a significant environmental compliance  Issue or  related  matter,
              take such actions as necessary for resolution In coordination with
              EH-23 and other Departmental Elements.

     c.  General Counsel shall;

         (1)  Advise EH-23, 1n a timley manner, of significant environmental
              compliance Issues and related activities which  comes to his/her
              attention independently and which need resolution.
-------
   4                                                          DdE 5400.2
                                                              8-13-87


    (2)  Provide prompt advice and assistance to EH-23 in resolving  environmental
         compliance Issues and related activities within his/her area  of responsi
         bility (e.g., consent decrees and consent administrative orders).

d.  Heads of Field Elements shal1:

    (1)  Identify and advise EH-23 and Headquarters program elements,  in a
         timely manner to assure  early Headquarters Involvement, of  signifi-
         cant environmental compliance Issues and related activities needing
         resolution.

    (2)  Provide EH-23 with Information requested to assist in  resolution of
         significant  environmental compliance Issues and related activities.

    (3)  Provide EH-23 and the designated lead office with Information necessary
         to enable inter- and intra-agency coordination; and to support CP  in
         the development of appropriate responses to public, media,  and
         congressional requests.

    (4)  When identified as the designated lead office for the  resolution of
         a significant environmental  compliance issue or related matter, take
         such actions as necessary for resolution 1n coordination with EH-23
         and other Departmental Elements.

    (5)  Provide EH-23 Information on all environmental permits and  permit
         applications in accordance with the following schedules and criteria:

         (a)  Those involving significant Issues shall be reported in  accordance
              with Attachment 1.

         (b)  Information on existing and anticipated permits for DOE  facilities
              shall be submitted  (or updated) annually to EH-23 by 10-1. The
              format  for these reports shall be consistent with the  format
              provided in Attachment 2.

    BY ORDER OF THE  SECRETARY  OF  ENERGY:
                                               LAWRENCE F. DAVENPORT
                                               Assistant Secretary
                                               Management and Administration
-------
DOE 5400.2                                                       Ittac!TintJ1
8-13-87                                                          Pa9e  l  (and


             COJBDINATiaN OF SIGNIFICANT ENVIRONMENTAL COMPLIANCE ISSUE
                               OR RELATED ACTIVITY


   ISSUEt             (Statement and significance of specific issue raised.)

   INITIATING FIELD/PROGRAM ELEMENT:

                     (Identify appropriate  source  of issue,  i.e.,  Field/HQ
                     Element and point(s) of contact.)

   STATUTE(S):       (Identify appropriate statute(s),  including citation(s).)

   REGULATION (S):     (Identify appropriate  regulation(s), including
                     citation(s).)

   REGULATORY AGEtCY or AGENCIES INVOLVED:

                     (Identify any Federal, State  or  local regulatory agencies
                     which may be involved  in  the  issue  raised.)
   SXMAFY INFORMATION:
                     (Statement of appropriate factual information concerning the
                     significant environmental compliance issue or related
                     activity, and appropriate background information on the
                     regulatory aspects  of the issue.  Use attachments as
                     necessary.)

  ACTIONS TAKEN TO DATE  (if any) AND CURRENT STATUS:

                     (Describe any action  taken to date to resolve issue, and
                     current status of issue resolution,  if appropriate.)

  ACTIONS PLANNED:   (Describe any planned actions which  will be taken to resolve
                     issue raised.)

  ISSUE REOMflaOOTON/
  ADDITIONAL OOWENTS:

                     (Provide proposed recommendation for
                     coordination by EH-23 or other Departmental
                     Elements, or additional connents, as appropriate.)

  HEADQUARTERS ACTION:   C 3 Information Dissemination

                         [ ] Concurrence

                         [ 3 Issue Resolution

  ISSUE DISPOSITION:  (To be completed by  EH-23 after action  is taken and
                      provided to appropriate program and field elements.)
-------
DOE 5400.2                                                         Attachment 2
8-13-87                                                            Page 1 (and ?x
                             PJVIRCKMPTCAL PERMITS                               ^B

  DOE Operations Office:   (Identify Operations Office)
  DOE facility*   (Identify specific faciUty)
  Existing Permit (  )           Renewal  (  )         NSW Permit (  )
  Permit Type:   (i.e., NPDES, RCRA, etc.)
  Permitting Agency:   (EPA or state, other if authority delegated)
  Permit Number:  (EPA or state permit number)
  Permitted Unit:  (Describe mit permitted)
  Issuance Date:  (Date issued and/or renewed)
  Expiration Date:  (Date permit will expire)
  Need for Headquarters'  Action            Yes (  )     No (  )
  (for permit renewals or new permits)     If yes, identify appropriate
                                          HQ Program Element	
  Brief Summary  of Relevant Information  (Major permit conditions,
  status of compliance or unusual problems):
i
       ed by	  Date
-------
U.S. Department of Energy      /3*\        Secretary of Energy
       Washinflton, OC.
                                                       SEN-11-89
SUBJECT:  SETTING THE HEW DOE COURSE                  DATE:  9-5-89
In ay first notice to you on March 6, I said that after my first few
•onths on the job, I would outline to you ay thoughts on setting a
"new course" for the Department to pernit more efficient and
effective Biasion execution.  This notice sets that new "course."
In this regard, I think it is important for you to have ay thoughts
so that, as subsequent initiatives are announced or new directives
are issued, you will find a context within which they fit.

It is ay strong conviction that if the Department is to accomplish
its mission, we Bust aove along the following new course lines, and
aove as quickly as possible.  In the interest of simplicity, I am
addressing only those areas of concern, vividly exposed to Be in the
early months, which I feel demand special corrective action.  As a
consequence, these initiatives are not intended to be all inclusive
of every role and mission of the Department.

1.  Integrated Planning and Policy.  We will develop an integrated
National Energy Strategy for the President that places energy,
health, safety, environment, technology, and economy into a mutually
supportive framework.  The President, the Congress, and the American
public should be able to see where we are going and why — near
term, mid-term, and for the long haul.   Our plan is to have a
skeletal structure of the National Energy Strategy in place by late
this summer; to complete about December 1989 the series of public
hearings now underway in order to obtain a broad range of inputs
from all interested parties; to collate their inputs and produce and
publish a first draft of the Strategy by April 1, 1990; to allow six
months for public comment; and to present in final draft form to the
President by December 1990 our best recommendations for his eventual
adoption as the National Energy Strategy.  This will be a difficult
coordinating task for our newly-strengthened Policy Office.  But I
expect all of you to support that Office, and aost importantly, to
contribute your own talents and time to the developmental effort as
well.

2.  Accountability for Environment, Safety, Health, Security, and
Efficient Operations.Preserving our environment, protecting public
health and safety, and assuring the Ration's security are primary
DOE responsibilities.   It Is true that the very large aajority of
our work in the field is actually carried out by contractors,
DISTRIBUTION;                                    WITIATED BY:
ALL DEPARTMENTAL PERSONNEL                OFFICE OF THE SECRETARY
-------
2                                                        SEN-11-89
                                                         9-5-89

including our national laboratories.  But this fact in no way
relieves DOE Managers of their governmental responsibilities to
ensure that contractors' primary duties are performed in accordance
with expected high standards of professional excellence.  While
current periodic external oversight is useful, it is not sufficient
to carry out day-to-day, shift-by-Shift internal line management
oversight responsibilities at many of our field activities. In this
connection, senior DOE field and headquarters officials will be
expected to ensure that their contractors comply with operational,
environmental, safety, health and security standards established by
law, regulation or Departmental policy, while at the same time
ensuring that they meet their production or research mission.  We
need the contractors to help us complete our missions, and I intend
to meet personally with all the major contractors in the next six
months to ensure that they know the course that we are setting.

To do this, DOE line managers need sufficient numbers of skilled
Federal employees to support them.  Accordingly, I intend to
establish permanent positions and put into place DOE people with the
capabilities necessary to support line managers in the execution of
their oversight responsibilities in both field and headquarters
positions.  This is a necessary precursor to line managers'
acceptance of full responsibility, and accountability for efficient
and effective execution of vital DOE .mission tasks.  When in place, .
primary accountability and responsibility will have been clearly
fixed in the DOE line management at all levels.  Additionally, line
management performance in executing their fundamentally oversight
role will continue to be subject to both independent internal (DOE)
and external (non-DOE) oversight as required by law or regulation.

3.  Safe Restart of Defense Production Reactors.  We will restart
the defense production reactors only after safety of their
operations can be assured, and only after health and environmental
requirements have been addressed.  These vital elements to safe
start-up will be validated by both internal and external independent
oversight entities established by law or regulation.

4.  Management Reform.  We will effect significant management reform
throughout Department headquarters and field activities.  This will
include measures to effect both program reform and badly-needed
cultural change.  The new culture will emphasize an open door
philosophy and demand professional excellence in both government and
contractor performance, a culture wherein constructive criticism
from any source, external as well as internal, is encouraged and
rewarded.  Specific initiatives underway, not necessarily in
priority order, include:
i
-------
SEN-11-89
9-S-89
      A.  Waste Management.  Establish a definitive,  priority-
      driven,  well-costed,  five-year waste management plan for DOE
      wastes,  coupled closely to the latest available technologies
      in order to minimize cost and maximize efficiency in achieving
      five-year objectives.  We will then expand this to a longer
      term, research-linked technology plan which will be made
      subject  to independent external review.  Both five-year and
      longer term plans will be updated annually.

      B.  Defense Facility Modernization Program.  Establish an
      integrated near-term (0-5 years) and long-term (5-20 years),
      priority-driven, well-coated defense program facility
      modernisation plan.  This five-year plan, when developed, will
      be updated annually.   The five-year modernization plan will
      provide  the mechanism for near-term action while retaining
      relevance to long-term modernization objectives.  This program
      is badly needed to restore our physical plant capabilities and
      to achieve a more efficient and fiscally-responsible execution
      of the defense portion of the DOE mission over the long haul.
      The long-term plan will also be updated annually as required
      by technological changes, shifts in priority, and fiscal
      realities.  The DOE complex will have to be modernized with
      environmental considerations and waste minimization as
      integral parts of future plant designs and management
      practices to avoid another cycle of unnecessarily costly
      cleanup  and to ensure that DOE facilities are ready to comply
      with what can be anticipated as surely stricter environmental
      standards for tomorrow.
      C.  Non-Defense Facility Modernization Programs.   Similar to
      the program listed above for defense facilities,  initiate a
                                         rogi
                                         ETil
modernization program for non-defense facilities as well.
      D.   Planning,  Program and Budget.  Establish a coordinated
      planning,  programming and budget capability that can integrate
      horizontally across the entire range of DOE programs in order
      to bring plans and programs into line with near (1-5 years),
      mid (5-10 years),  and long-term (15-20 years or longer)
      objectives of the National Energy Strategy.

      E.   Contract Management.  Modify and significantly strengthen
      existing contracting strategies, particularly in the area of
      compensation management.  This will include expanded
      incentives for contractors to achieve excellence and cost
      effectiveness in their performance, an enhanced understanding
      of performance expectations and performance criteria by both
      Federal and contractor employees, and tighter controls to
-------
                                                   SEN-11-89
                                                   9-5-89

assure that DOE line managers have the tools to- ensure
corrective action will be forthcoming when contractors do not
perform to standards.

F.  Independent Internal Oversight.  Strengthen independent
internal oversight responsibilities within Environment, Safety
and Health (EH), Nuclear Energy (NE), and other designated
offices (e.g., DP) as required to monitor effectiveness of DOE
management in execution of policies set by DOE, particularly
in areas of environment, safety, health and security.  These
internal DOE oversight functions are in addition to any
external oversight bodies established by law or regulation.

G.  Independent External Oversight.  Work constructively with
external oversight bodies to build a system that will provide
proper external checks of the Department's line and oversight
management practices.  The existing independent Advisory
Committee on Nuclear Facility Safety and the new Defense
Nuclear Facilities Safety Board, when installed, will perform
much of the required external oversight functions.

H.  Education and Training Programs.  Establish new education
and development programs for Departmental staff, managers, and
executives to ensure that personnel at all levels and in all
organizations of the Department, both at headquarters and in
the field, are fully prepared to carry out tasks expected of
them, particularly as they assume new and higher levels of
management responsibility.  In this connection, I intend to
revitalize the intern program to attract high-caliber young
professionals into the Department.

I.  Epidemiology and Radiological Health.  Initiate a 4-point
program to ensure DOE's epidemiologic research activities are
appropriate, effective, and represent excellence.  The program
will include an expert external panel to evaluate DOE's
current epidemiologic activities; an independent scientific
committee to advise DOE on an ongoing basis; a data repository
for all epidemiologically relevant information on past and
present DOE workers; and a mechanism to share DOE's
information with qualified researchers.  This program will be
the first step in establishing DOE'a epidemiology research
program as the global model for the epidemiologic study of the
energy industry.  In addition, considerable emphasis will be
placed on radiological health aspects of all our nuclear
facility operations.
-------
SEH-11-89
5.  Human Potential*  We Bust expand our  involvement in science
education to  inspire the youth of America to either enter or feel
more comfortable  in the fields of math, science, and engineering.
With our labs and facilities, we are uniquely well-positioned to
provide major assistance in  strengthening science and engineering
motivation and education, making it "come alive* for the main body
of students who too often fear these disciplines or who cannot
relate to them.   I intend to lead this effort personally.

6.    Technological Competitiveness and Technology Transfer.  The
development and deployment of new technologies  from the DOE
laboratories  can  do much to  enhance U.S.  competitiveness.  Too many
times in the  past we have developed promising new technologies only
to see our foreign competitors get the benefit  of successfully
introducing these technologies into the private sector.  This must
change.  DOE  labs will be tasked to place new emphasis on technology
transfer.  All DOE research  and development programs will be placed
in a continuum of sequential actions extending  from basic research,
to applied research, to developmental research, -and finally to
transfer of technology to the private sector.   The role of working
cooperatively with industry  throughout this continuum including
cost-sharing, will be highlighted to determine: technology transfer
potential; the timing to commence the transfer-to-the-private-sector
process; and  mechanisms of fixing the cost burdens in a fair and
equitable fashion.

7.    Incident Reports Management (includes UORs).  The current
incident reporting system needs major overhaul.  In a variety of
environment,  health, safety  and security-related situations
witnessed to  date, reports available to top DOE management simply do
not reflect actual situations which prevail in  the field.  As a
consequence,  neither preventive nor corrective  actions are in-
stituted in a timely fashion.  Crisis management, after the fact,
has become the norm too often.  An entirely new system of reporting,
analysis, and follow-up will be instituted to help minimize
unwarranted surprises and maximize operational  effectiveness.

8.  Emergency Planning and Response.  With responsibility for
managing activities at more  than 40 important nuclear and non-
nuclear facilities around the nation, the Department is obliged to
ensure that each  site is prepared for all contingencies.  Therefore,
I expect each field office and contractor to develop and test up-to-
$ate, integrated  emergency plans which utilize  the most effective
technology.   Energy incidents caused by human errors or outside.
fvents cannot be  eliminated, but their damage to human health, the
Environment and the economy  can be limited by effective contingency
planning and  frequent exercise of these plans.
-------
 6                                                        SEN-11-89
                                                          9-5-89

 9.   Accountability for nuclear safety in weapon design and  stockpile
 surveillance.The importance of safety in nuclear  weapon design and
 during stockpile life of deployed weapons cannot be overstated.  The
 DepartBent of  Energy Must continue to exercise vigilance in its
 responsibilities for nuclear weapon safety.  Together,  the
 Departments of Energy and Defense share responsibility for  nuclear
 weapon safety  from design through deploynent and ultimately to
 retirement.  It is the proper moral and statutory obligation of  the
 Department of  Energy to be an advocate for safety and use control
 considerations with respect to nuclear weapons, just as military
 characteristics are the proper domain of the Department of  Defense.
 Senior DOE officials in Defense Programs must ensure that new
 nuclear weapons, as well as those in current stockpile, incorporate
 modern safety  and control features.  New institutional process
 changes will be made to effect this initiative.

* If  these initiatives receive your support, we will  effect a positive
 cultural change within DOE, but more importantly, will create  a  new
 credibility throughout the country about the way DOE serves the
 .Nation.
  mes  D. Watkins
'Admiral, U.S. Navy  (Retired)
                                                                             i
-------
         CHAPTER 10



ORGANIZATION CHARTS/CONTACTS
-------
                                    CHAPTER 10
                          ORGANIZATION CHARTS/CONTACTS


Federal Facility Hazardous Waste Compliance Office (FFHWCO)

Department of Defense

Department of Energy

Department of Interior
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-------
           FEDERAL FACILITIES HAZARDOUS WASTE COMPLIANCE OFFICE



Chris Grundler, Director                                                    475-9801

Gordon Davidson, Deputy Director                                           475-9801

Chip Landman. Coordinator, Region 5                                       382-2035
      Attorney Advisor

Linda Southerland. Coordinator, Regions 1 & 3                               475-9806
      NCP/Subpart K

Nick Morgan, Coordinator, Regions 2 & 9                                    382-4846
      Docket Coordinator

Linda Cooper, Coordinator, Regions 6 & 7                                    475-7025
      Training Coordinator

Melanie Barger, Coordinator, Regions 4, 8 & 10                               475-9808
      Mixed Waste
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