^^\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
;6, 1999
OSWER Directive 9200.1 -31P
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
MEMORANDUM
SUBJECT: Interim Guidance in Response to the OIG Audit "Superfund Sites Deferred to
RCI
FROM: IStep^einvtiHtig, Director/
s/rgency and Remedial Response
'^Hilizabeth Cotsworth, Director
I/ Office of Solid Waste
TO: Superfund National Policy Managers
RCRA Senior Policy Managers
CERCLA/RCRA Regional Counsels
PURPOSE:
The purpose of this memorandum is to provide interim guidance to Regional Superfund
and Resource Conservation and Recovery Act (RCRA) programs on reevaluating and setting
priorities within the universe of sites that were the subject of a recent Office of Inspector General
(OIG) audit, "Superfund Sites Deferred to RCRA" (E1SFF8-11-0006-9100116, March 31,1999).
This guidance is designed to implement national policy on these issues and does not substitute
for RCRA, CERCLA or EPA's regulations; nor is it a regulation itself. Thus, it cannot impose
legally-binding requirements on EPA, and may not apply to a particular situation based upon the
circumstances.
BACKGROUND:
On March 31,1999, the OIG released an audit report entitled "Superfund Sites Deferred
to RCRA," which assessed EPA's implementation of its RCRA deferral policy. Under this
policy, EPA defers eligible Superfund sites to RCRA corrective action according to specific
criteria. The original deferral policy (including criteria for deferral) may be found at 48 FR
40658 (September 8,1983); the current deferral policy and a summary of all previous revisions
Racyclod/Recyclabl* . printed wtth Vegetable OB Based Inks on 100% Recycled Paper (20% Postconsumer)
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may be found at 54 FR 41004 (October 4,1989) (See Attachment I for excerpt). The OIG
concluded that, out of nearly 3,000 sites deferred to RCRA, a large portion did not meet
deferral criteria and were ther~fore' inappropriately deferred. Furthermore, a number of the
facilities were not found in th~ RCRIS database and will therefore need additional attention. in
order to clarify their current status and address them appropriately.
The OIG based its results on a random sample of the deferred sites in Regions 2, 3, 5 and 9;
therefore, the actual number of inappropriately deferred sites is unknown at this time. The OIG
recommended that the Office of Solid W asteand Emergency Response reevaluate all of the deferred
. sites not in the RCRA corrective actiQn workload to determine the best legal authority to address the
sites, identify any response actions necessary at the sites, and impr~ve communication between'
Superfund and RCRA program officials. The full text of the OIG's recommendations is included as
Attachment II.
In the paragraphs below, we provide guidance on how Regions should assess this universe of
sites/facilities. Most Regions have already made significant progress in their assessments, and we have
worked closely with Regional staff in developing this guidance. However; we consider this guidance to
be interim, and we will continue to work with you and your staff to ensure that any issues that arise in
the course of your assessments are promptly addressed, and that the Agency can complete the process
expeditiously.
IMPLEMENTATION:
The OIG found that 1,846 of2,941 sites deferred to RCRA were not in the corrective action
workload or were not subject to RCRA corrective action. As a result, the OIG concluded that many
were ineligible for deferral under the current policy. Because the OIG studied only a subset of this
universe, it is necessary for Regional Superfund .and RCRA programs to review all of the 1,846
sites/facilities in order to assess the need for any response actions and determine the most appropriate
authority for such actions. It is essential for representatives from both programs to contribute to these
initial assessment efforts, while also working closely with the ~tates. '
Review and Assessment
These 1,846 sites/facilities must first be reviewed to determine their current status in each
program. Representatives ITom both programs should work together to compare this universe to the
RCRA Corrective Action Workload universe. The RCRA program will maintain responsibility for all
deferred sites/facilities found in this universe, as these facilities either have undergone, or are currently
undergoing corrective action, or will be in the future due to RCRA permitting requirements. If deferred
facilities that are not in the'CA Workload Universe have been acknowledged by the RCRA CA
program as likely to be addressed by RCRA CA in the future (see Attachment III), then these facilities
will (with proper documentation) remain deferred to the RCRA. program.
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Sites not being addressed under RCRA will return to the Superfund program for reassessment.
While Superfund will have-the lead in detennining appropriate responses at these sites, both programs
should continue to work together in order to compile the most recent site information prior to making a
decision on how to address each site. In many situations, State files will also be an excellent resource in
evalUating the current status of a site. Each site may require a different type or level of reassessment,
depending on past assessment activities, preliminary Hazard Ranking System (HRS) scores, or
response actions taken by other parties. File reviews should be performed at all sites to separate those
which need further assessment ftom those which require only database updates to reflect their current
status. Please refer to the coding instructions for the new "Other Cleanup Activity" action and ''Non-
NPL Status" field in Appendix A ofEPA's Superfund/Oil Program Implementation Manual (OSWER
. Directive 9200.3-14-1E-P) and the CERCLISlWasteLAN Coding Guidance Manual for detailed
guidelines on updating site information in the CERCLIS database.
Sites which are appropriate for a NFRAP (No Further Response Action Planned) designation
should be coded in CERCLIS accordingly. Those sites scored under the original HRS should be
reevaluated in light of the revised HRS to ensure that the most appropriate assessment decisions are
made at every site. At sites which have been archived from CERCLIS, information should be collected
to ensure that the archive decision is still valid in light of the OIG's recommendations. The OIG found
that nearly three-quarters of the deferred sites have been archived from the CERCLIS inventory based
on a decision that no further federal Superfund interest exists. These sites need not be returned to the
active CERCLIS inventory unless information reveals that further Superfund assessment or response
activities, including removal actions, are necessary.
The OIG also identified 253 sites/facilities which were not readily located in the RCRIS
database. Upon further investigation, the OIG was able to locate some of the randomly sampled
. facilities in RCRIS under different facility names or identification numbers. However, the OIG
concluded that many of these sites were appropriately excluded from RCRIS because they were not
regulated under RCRA. In fact, many of these sites were not intended to be deferred to the RCRA
. program. Some of these sites were deferred to States or another EP A program, but were coded into
CERCLIS as deferred to RCRA because oflimited options In the CERCLIS database. These 253
sites should be addressed in a process similar to the one described above; however, additional effort
will be necessary during the preliminary stages in order to search for the site/facility in RCRIS and
determine whether it was intended to be deferred to an authority other than RCRA. Specifically,
CERCLIS sites being addressed under non-RCRA State cleanup programs should be assigned the
new "Other Cleanup Activity" action in CERCLIS if no formal State-deferral agreement exists. . Formal
deferral agreements should be developed where possible.
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Reporting Requirements
Documentation of site assessment decisions for the sites described above is an essential aspect
. of achieving the alG's recommendations and ensuring that sites are appropriately addressed.
CERCLIS will be the primary instrument for tracking the status of all the deferred sites during the
course of the audit follow-up, and should reflect all decisions made at these sites in order to track our
progress and report back to the alG. When a site/facility has been appropriately deferred to RCRA,
events at the site will be tracked in RCRIS. Site infonnation should be updated immediately following
all site decisions. Headquarters wi!! pull data from CERCLIS quarterly, beginning March 31, 2000 to
ensure that progress is being made in reviewing the universe of sites/facilities. The two programs should
. . reach agreement on which program will take responsibility for each of the 2,099 sites/facilities by the
end of Fiscal Year 20pO. Although CERCLIS is maintained by the Superfund program, data entered
into CERCLIS as a result of this guidance should reflect site decisions agreed to by both programs; the
quarterly CERCLIS reports will be shared across programs as well. .
Coordination for the Future
The alG specifically cited "communication and collabo11ltion between Superfund and RCRA
regional officials" as one particular aspect of the deferral process that needs improvement. The alG
concluded that a lack of communication between program staff resulted in the inappropriate deferral of
a large number of sites. Both Superfund and RCRA must work more closely to ensure that past
deferrals are addressed appropriately, and that only eligible sites are deferred between programs in the
. future. These programmatic improvements need to take place on all levels, at Headquarters, in the
Regions and in the States, in order to improve the overall deferral process.
At the Regional level, we expect that in the future the Superfund program will continue to
identify candidates for deferral to the RCRA corrective action program. However, any decision to
defer a site will now require written notification to the receiving program. The receiving
program will then review its infonnation on the site, as well as information supplied by the deferring
program, prior to confInning that the site is appropriate for deferral. The receiving program must then
notify the deferring program of ifu conclusion, in writing, and update each information system as
appropriate. The site has not been officially defetred until the receiving program submits written
acceptance of the site. The two programs should establish a time line for this approval process and
follow up on the status of all pending deferrals, to ensure that a backlog of sites awaiting a deferral
decision does not develop. This deferral process must be well documented in site fIles in both prograni
. offices.
Headquarters recommends that each program designate a site deferral coordinator as
the point of contact for working with future sites. Establishing deferral coordinators in each'
. program will also streamline the efforts in assessing the large universe of sites identifIed by the alG and
in detennining the most appropriate authority to carry out ariy necessary response
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actions. Further, Headquarters recommends that Regional staff of both programs 'maintain reguJar
contact to discuss the status of sites that could potentially be deferred or that were recently deferred
between programs. Close coordination between the programs will also facilitate discussions on how to
best address the audit universe.
Finally, future efforts to improve cross-program coordination should include improvements to
CERCLIS-RCRIS consistency. As stated earlier, the OIG identified more than 250 sites that were
not readily located in the RCRIS database. A number of these sites were not in RCRIS and were
never intended to be deferred to the RCRA program; these sites were coded incorrectly in CERCLIS
as deferred to RCRA. A portion of these sites were later found in RCRIS under different facility names
or identification numbers. Regional staff need to work together to identify and correct these common
data errors which inhibit progress at these sites. Similarly, both programs should institute quality control
procedures to ensure data is accurate for sites being entered into either system.
CONCLUSION:
Recognizing in advance that this effort will increase your assessment workload, we appreciate
your efforts in ensuring that the OIG's recommendations are met and this universe of sites is properly
assessed and referred to the appropriate program. Please factor this work into your Regional priorities
for FY2000. OERR and OSW hope to eliminate the need for additional work on your part by tracking
. progress at the Headquarters level through the CERCLIS database.
If you or your staffhave any questions, please contact Jennifer Griesert, Office of Emergency
and Remedial Response, at (703) 603-8888 or Henry Schuver', Office of Solid Waste, at (703) 308-
8656. .
Attachments
cc:
Tim Fields, OSWER, 5101
Mike Shapiro, OSWER, 5101
RCRA Program Contacts, Regions I-X
Superfund Site Assessment Contacts, Regions I-X
Bob Ciancial1l}o, Region I
James Woolford, 5106
Linda Garczynski, 5105'
Barry Breen, 2271A
Craig Hooks, 2261A
Earl Salo, 2366A
Brian Grant, OGC, 2366A
Tom Kennedy, ASTSWMO
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Attachment I
ExceIpt :trom National Priorities List for Uncontrolled Hazardous Waste Sites - Final Rule
Covering Sites Subject to the Subtitle C Corrective Action Authorities of the Resource
Conservation and Recovery Act (commonly referred to as RCRA Deferral Policy), FEDERAL
REGISTER, October 4,1989, (54 FR 41004-41014); Section V which appears on 54 FR 41004-
41006.. .
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.' '":~U_' F~''''''' j, Yot ~ NO." 191' f. Wednesday;' OctOb8r 4; 1989 J.' Ru1es "and Re8WatioDS
. " '
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"(andJWb,lfatiaapo~).~.'~ta. . reicnm_:SabtitleC~.'actioU
publki-...-. ondut.DIOP088LBued '. alllboritlesccnWlnot be.8DforGed.'or a
0J1 these -ta 8Dd further ~ew .' '''Flfiest- portlOJ,1 of the ielease came,
: 1JyBP4..tIie AgeacJcfetatomIfta fIual "'. . ftoa IIOIII'tIjpJIated:uDita.. . :' .
1iRS ic:ot88 8Dd places those sitea that. 011 NoVember 8.188f. the HaziirdoU8
. sl;l1l qaabfy.onthe fIual NPL. . ai1d Solid Waste ~1U"'enta (HSWA)-
. IY. 8tabdu1y RequInaum~.d LiaIIDg..:aA e:i::e ~rr::~:J'na1ided
PoUc:ie8 . authorities as foUows: .
CBRCLA res~cts EPA's authority to . Sec:tioD 3004(u) ~uires permits Issued
respond to certain categories of releases dter the enactment of HSWA to include
of hazardous substances. pollutan~ or corrective action for all releases of hazardous
. contari'lfnllnt& by expresa1y excluding Waste or COD8tibumta from lOUd wa8ttt .
some sutiatimces. such .. petroleum. MlIJ1II88meDt UDitiat . treatmeDt. ltorap. or
from the r9spOD88 proaram-In addition. disposal facility 88e~ a permiL
CBRCLA section 1OS(a)(8)(B) directS. ~ SecUon 3OCN(v) fequfre8 c:orrec:t1ve action
EPA to Ust priority attea "amoD8" the to bit takmt beyond the facility bolmdary
known releases or threatened releasea where II8C8888J'Y to protect human health and
of hazardou substancas.' poUutants. or the envfromnent.un1ea die owner/op_tor
cootAn'linanta. and section 105(a)(8)(A) of the facility demolllltratea that despite the
dire """A id cert-I- owner or operator's best efforts. the owner or
cts 1:4:'. 10~?B er ....... operator was unable to obtaio the necessary
enumerated and other appropriate permissioD to undertake such action.
factors in doing so. Thus. 8S 8 matter of . &lctioD 3008(h) authorizes the
policy. EPA.bas the discretion Dot to use Administrator of EPA to issue an order
.CBRCLA to respond to certain types of requfriD8 corrective action or such other
releases. Foi' example. EPA bas chosen response D1881JUft18 88.cleemed bIICIl/l881')' to
not to ll8UitB8 thatreault from . ~..' pmtKthmDaD health or tb mvlJomn8Dt.. . .
. contambiatloD aasocIated with fliciBtieIJ Wlumev8rUI8 4atemdDecl ~t ~ 18 or baa
llC8D88d.W the-Nac1ear R.-.toiy..' '., been...... of.Iuaudoaa'w88t8li1to the.
CoiDmiuioil (NRC). on tb8 ~ that . .u1,,~tr,om.. fadlItY..wttb in~ . .'
. the ~C ~die aUthority.iUu:l8xP.ertfse .'. ItatDI.. ". . . -.: ::. <: :. i . .:" .
to cleaa up releases &om those facilities' ... As a result of the broadened Subtitle
(48 FR 40661. September 8,1983). Where C corrective action authorities of
other authorities exist. placing the 81te HSWA. the Agency sought comment on
on. the NPL for possible remedial: action a policy for deferring the listing of non-
under CERCLA may not be appropriate. . Federa18ites '8ubject to the Subtitle C
Therefore. EPA haa chosen not to." corrective action authoritie8 (50 FR
consider certain types ohlles for the 14111. Aprl11D. 1985). Under the draft
NPL even tIun1P CER~ may provide. policy. the listiDS of such'sites would be
authoritY. tD respond. 1ft however. the' difened unlesa and untilthe A.gei1cy .
Asency.1ater determines.that sitea not determh1ed that RCRA'correcUve action
listed as' a matter of policy. are not being' was not likely to '8ucCeed or occur
properly responded to. the Aseocy may. promptly'due to factors. such 88:
place ~m. on the NPL. . 1be inability or unwillingness of the'
The IiiIIf1iB policy o! relevance to this. owner/operator to pay f~r addressiD8. .
final Me applies to 81tes 8ubject to ~e .thecontamfnation at the site. . .
cotrective action authorities ofRCRA . IDaclequateflnanC1alrespOnBibUity
Subtitle C. . . gueruifees to p~y for such costs. . .
. V. DeveJoPnumt of the NPL/RCRA . . EPA or State priorities for' .'
Pouq.' .' . . addres8iDS RCRA sites. . .' .
Since the first NPL final rule (~Fa The intet of the pollcy was to
40658, September 8, 1983) the Asency's maximize the number of site responses
policy. has been to defer lisliDs sites that achieved through the RCRA corrective
could be addressed by the RCRA action authoritie8. thus preserving the
. Subtitle C corrective action authorities, CERCLA Fund for sites for. which no
evan'though EPA has the statutory . ..other authority is avanable. Federal .
authority to Uat aU RCRA sites that meei ,facility sites were not considered in the
the NPL eligibility criterion (i.e.. a score Clevelopment of the po~c:r at that;tfme
of 28.50 or greater undet the HRS). Until because th~ Nq'. prohibIted plaC1D8
1984: RCRA corrective action authoritie8 f.ederal facility sltea on.the NPL.
'were limited to facilities with releases to On JUDe 10. 1988 (51 FR 21051). EPA.
ground water from8urface aDnOUDced componeots'of a poUcy for
impoundments. waste piles. land the lfsliDs. or the deferral from UsIiDs. of
treatment areas. and 1andfi1la that. ,several categories of non-Federa1sites
received RCRA huardous waste after subJect to the RCRA Subtitle C
. July Z8. 1982. Sites which met these corrective actio.. auth~rities. Under the
criteria were Usted only if they were poUcy. RCRA sites not subject to .
abandoned or lacke~ sufDc1ent : Subtitle C corrective action authol';itiea
~ . :" .
.i.i"
. wo~ eol1tini&e to be placed 011 UIe NPL . .
. Examples of suCh..tea ~i1de:' .' ,
. .: facilities that ceased treating.
~ or dispost"8 of hazardous waste
. prior to NOV8IIIber 18. 1880 (the effective
date of Pba881 of the RCRA.
regulations)..8Dd to which the RCRA
corrective action or other authorities of
. Subtitle C cannot be app~ed.
.. Sites at which only materials
'exempted from the statutory or' .
regulatory dafinition of soUd waste or
'hazardous waste were managed. .
. . RCRA huardoU8 waste 'handlers to
which RCRA Subtitle C corrective
action authorities do not apply, such as
hazardous waste generators or .
transporters not required to bave interim
status or a final RCRA permit.
Further. the policy stated that certain
RCRA sites at which Subtitle C
corrective action authorities' are
available may also be listed if they meet
the criterion for listing (i.e.. an HRS
sC0rt! of 28.50 or greater) and they fall
within one of the foUowiag categories:
. Pac:iUties owned by persona who'
. have demonstrated an inability to
. 6i1ance s' clelU111p ... evidenced by' their
. ~vocation of the bankruptcy laws.
. Fac1Uties that have lost
authorization to operate and for which
there are additional indications that the
OWDer or operator will be unwilling to
undertake corrective action. .
Authorization to operate may be lost
. when issuance of a corrective action
. order under RCRA section 3008(h)
termiDatesthe interim status of a facility
or when the interim status of the facility
is' terminated as a result of a permit
deDial under RCRA section 3005(c).
Also. authorization to operate is lost
through operation of RCRA 8ection .
3OO5(e)(2) when an owner or operator of
a land'disposal facility'did not certify
co!11PUanca with applicable ground
. water moDitDriDg and financial. .
.' ~sponsibUity requirements ~d submit
a Part B permit applicatioo by
November 8, 1985-elso known in .
HSWA as the Loss of Interim Status
Provision (LOIS)).
. Facilities that have not lost
authorization to operate. but which have'
. a clear history of unwillingness. These.
situations are determined on a case-by-
case ba8is.
.' On JUDe 24.1988 (53 FR 23978) EPA
amended the June 10. 1986 policy (51 FR
21051). to include four additional
categones ofRCRA sites as appropriate
for the NPL. These categories are:
. Non- or late filers. . .
. . Converters. .
. Protective filers.
. Sites holding permits issued before
the enactment of HSW A.
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.,-'~ . ...;:.~ F"".~., V~ H. :N~' 1st., We~y~ Ociob8r'~'1989 ,.. Ruie~..mid R8PIatio~'
.... '. . . -. . '. -...". t. .
. . . . ::.:.:ID:ibcit-'w1e!'Zf..188iraottc:e:th8. i' :. -~..for th8 NP& On AUsua~ s.
.Aseucr'ProPoIed ~add.u.8ite. to.~, . '1888 (&3.ftUOO06J; BPA added objective
.. NPL.OIt-the.bufa,oftlu......ded.NPLI cdtert&.to.!t8'.pol1cy.fordetenDfDiDg>..
RCR:ApoUcy~.~.to'chop,30 lites fi'om .'. UDWIJJJDpea. Sp8ctfIca1ly;'a RCRA-
..pIOpOsed NPL.because .theyw.ere' faaW., would b8 placed on the NPL
.aubJect to' the SubUtle.C corrective .baIed OD 1IDWiUIDgnns when the
acUon: authoriJ1e8 of.RCRA 8Dd did not, OWD.fIr/operatora ant not in compHance
at thetime. appear to faR-into Due. of the with one or more of the followms: .
categories of RCRA faeWtiea that SPA . Federal or substantially equivalent
considers,appropriate for listing under. State unilateral administrative order
the current policy. In addition. in a requiring corrective action. after the -
separate Federal Register notice on . faciUty owner/operator has exhausted
the same date (53 PR 239(8). ~e Asency administrative 'due process rights .
proposed Update ,#'1. whicb. included a -Federal or substantially. equivalent
number of RCRA sites for listing under State unilateral administrative order
the NPL/RCRA poUey. Nine of these requiring corrective action. if the faciUty
sites are being added to. the NPL In owner/operator did not pursue . .
today's final rule. Also..on May &, 1989 administrative due procesa rights within
(54 FR 19528). the Asency proposed the ap8cified time period. '.
Update '8. which included 10 sites, One . Initial Federal or State preliminarY
of these sites. a RCRA site. received no injunction or other judicial order
comment and is being added.to the NPL requiring corrective action
iI} today's final rule, . Federal or State RCRA permit
~ . . condition requiring corrective action
Unwillingness CrIterIa' . . I after the facility owner/operator has
. AJJ part o~ the NPL/RCRA.. policy exhausted administrative due process
announced on June 10, 1988 (51 ~ riPta. '.. . - . . . .
. . 21059), SPA expJalned.lta poUey of . . . FJDaI Federal Or State cOnsent.
. 'UsdDs R~ sit8lJ-WIumt the owner/. decree 'ondmJDIetratiwordetOn'
,operatol:has d8m~_tedm'" .'. '. . coD8imtreq1qrfni'C:orrecfIve action.. after
. unWll1ln8"'eSI to tab oorrect!ve acticm." . ~ exhaU8tioDOf any dfaPute resolution
'Out pOlicy. stated that.. 88 a ~. . . procedures ",: '.' -, . . .' .
matter, EP'A prefers using available However, the Agency explained it
RCRA enforcement Qr permittiniJ would be both unnecessary and
authorities to require corrective action. inappropriate to go back and reexamine
by the owner/op~tor at RCRA lites already propos.ed sites based on the .
because this helps to conserve CERCLA reviSed criteria.. First, the revised
resources for sites with. no financiaily criteria had not been announced when
viable owner/operator. However. when the sites in this rule were evalnated for
the Agency determiDes that a RCRA unwillfDsnesa and proposed for the NPL.
faeW., owner/ operator' is unwilling to Second, the new criteria do not. . .
Carry out corrective action directed by represent a substantive change. but
EPA or a State p~nant to' a RCRA rather, an attempt at developing more
order or permit, there is.little assurance easily appUed and understood objective
. that releases will be addressed in a. crtiaria. EPA believes that the .
timely manner wider a RCRA o~er or determJnations of unwillfDsness made
. pemiit. Therefore. such faciliU.. should for the sites in this mle runy satisfy the .
be listed in order to make CERCLA . . Agency's poliey and goals. Third, the
resources available expeditiously, '. Agency recognized that 80me lead time
Under the poUey. RCRA faCilities will. be. would be necessary fOr the-Regions and
placed on the NFL when owners/ States to apply'the new criteria to sites
operators are found to be unwilling' before submitting them for proposal to
based on a case-by-case determination. the NPL; speciBcally. the Regions imd
Several RCRA facilities being . Stat.. would b., required to issue
finalized in this rule were proposed for corrective action orders at RCRA sites
.the NPL based upon their ~ scores before determ.1nin8 unwillingness. rather
and EPA's cas~by-case determination than evaluatiniJ aU evidence on a case-
that the owner/operators were wiwilling by-case basis. Thns, the Ageney decided
to take corrective action. For each such" .to apply the new criteria ooly to sites
site. the Agency has prepared a lengthy proposed after August 9. 1986; so as not
memorandum to the record, '. to significantly e.nd unneccelisarily
documenting .the actions .cor failures to delay promulgation'and response action
act) upon which the unwillingness . at already proposed sites. .
finding was based. EPA solicited ' .. '.
comment on the Hating of these sites Amended NPL/lICRA Policy .
(and on the findiop of unwillirlsness), . . On June 24. 1986 (53 FR 23918). the
and is rt!8POnd1ng to comment here and~-Agency amended its NPL/RCRA poUey .
in the accompanyiog II'C1pport docum~ by adding four categories of RCRA sites
EPA believes that the site. are' .' appropriate for listing. ,
'41-
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. . (1) NtJa-.tIr lats FiltirtJ: Facllitln that ~
tNatIDs ltorbqfor dilpallD8 of Subtitle'C .
. hazII1'dou8 waate after-November 19, 1D80.
and did DOt file a PutA:'RCRA permit.
. appl1cathm.b,. that data and haw Uttle or no
~Iarf of compliance with RCRA.
The Agency decided -to place on the
NPL "Don- or late mers" based on the
Bnding that RCRA treatment, storage or
disposal facilities.("TSDFs") that fail to
me Part A of the RCRA permit
appUcat,ion generally remain outside the
range of COSJIi".ance of authorities .'.
responsible for compUance with RCRA,
and generally are without the
institutional mechanisms, such as
around water monitoring programs.
necenary to asslii'e prompt compUance
. with the standards and goals of the
RCRA program. Therefore. EPAbelieves
that it is not appropriate to defer to
RCRA for action at these sites. even
though RCRA technically may apply.
However. in cases where non- or late
mer facilities have in fact come within
the RCRA syste~ and demonstrated a
history.of compUance with RCRA
.regulations (as D18J. be the case with
. late ma). the Asency may decide to
defer listing and allow RCRA to
.' continue to address problems at the site.
(Z) Convertem: Facilities that at one time
were treating or storing RCRA Subtitle C
hazardous waste but have since converted 10
an activity for which interim status Is not
,required (e.g., generators who atore
hazardous waate for 90 daya or le88). These
facilities. the withdrawal of whoae Part A
application baa been acknowledged by EPA
or the State. ~ referred to ea converters.
Converters at one time treated or
stored Subtitle C hazardous waste and
were required to obtain interim statuS.
EPA believes that under RCRA section
3008(h) it can compel correct!ve action
at such sites. However, RCRA's '
corrective action program currently
focuses on TSDFs subject to permitting
requirements. and thus EPA has not.
routinely reviewed converters under
RCRA Subtitle C. EPA has decided that
the deferral of this category of sitos is
not appropriate. as these sites are not
. currently engaged in treatment. storage.
or disposal activities subject to RCRA
permitting and they are not a priority for
prompt corrective action under RCRA.
Instead. the Agency has decided to Ust
such sites to make full CERCLA
resources and authorities available, if
necessarY. In cases where a converter
has agreed to corrective actlon under' a
RCRA unilateral or consent corrective
action order, the Agency will generally
defer liating and allow RCRA to
continue to address problema at the site.
BPA is currently prioritizing RCRA
facilities fo~ c,orrective action. If the .
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. .
,r.~,.- \.;~: -':I.v~.~.NO:'~i.~~.:~.. ~.~~ i-~....~:B8sidatimla .
~ . '. '.-" . .' -: - . - .: ." . f ,. ,
,':. . .~~~~~~lIies . . "'~NC8IM4:.'~:::".',: ,:>-"daaad"tha.aat,ifnmdamt..1'!iAt'APnaY
.: : ,~Iii."'" ~ ~ ",...', , ,:~"""OUrtb8I11D~I~,~,:,: ' 'bd8adstDtbe two ~toprovfd8
~1D8DII8I'bJ.KqcA:"" ~ ; - .." ~......~tmh8a~,DDfID8I." " =~:= ~.~tdad18r, ,
auiJJmttln.thii1ltwUh:........--the... '-~~.tbe:R....1'b8,. . ,pro&leia.8V8D1f " - ,
,IiItbia'po1lay~~.~8ite8',', Apaq.rapoadtop.'''lIII6u''8Dd,' pncedunlNq1drementsdlfrer.lndeed.
and mat defer Cu4V8tNNfD RCRA for aDD01IIICIt I,,'deciaIqa cm.tbia,poUq 1m , ODe of the Asencr'e priJDary obfectivec
, corr8c:tive.~dD., '. ';, . ,,' tber.tar..:.. ',' lm~o('~'.I{~~ve,
, (8) ~ P1Itmt: PaciI1t1e8 !bat haft. . VL Re8pOase to PabIic ComIiaeftt8 actIoia ftIjuIatloDs is to 8.cbhmt .
IlI8d RCRA Part A peradt ~ for . , . .' ' IRIbataJstive consiatency with the '
lrealm8Dt. atorap, 01' dJapo8a.I of Subtitle C 'l1ie Apncy received a number 01 CBRa.A .remedial profP'8DL '
hazardous waate B8 a precautionary me88~ . comments 01;1 the JUDe 24. 1988 The NPL/RCRA policy fa based on
only. ~88 facWUea may be generato~ amendments ~o the NPL/RCRA policy, . efficient allocation of limited CERCLA
1r8D8pO~ or recyc1ers of hazardous and on the application of those resources AlthoUBh CERCLA provides
wastes, aad are not subJeCt to Subtitle C lQIIendments,and the JUDe 10. t988.NPL/ authority to clean up all aites.lncluding
coll8Clive aGtlaa autbmttie8. . ,.RCRA policy to sites ~ for the RCRA site$, usmg CERCLA In all cases
, The~ facilities m~ RCRA Part A NPL. RespoJ18.88 to the lignificant, ' would be Inemcfent because RCRA has
permit appHcatioD8 88 TSDFa as a , . commenta concerniDs the general , . authority to conduct certain cleanup
precautionary me881U'e only. and are' . application of ~ amended criteria are, . ac:ti,ons. Corrective action provisions are
, g:::tors. ttaDspCJrters; or recyclers of, eUlDlll8rized below. All si~c now reCIuired in'RCRA permits. which
OUI wastes. Protective &81'8 are comments ~ 81UDID8I'ized and direct activities at the site, often JODB
not subject to Subtitle C corrective responded to 1D ~e support document after cleanup actions are camp Ie led. By
action authorities, and thus, EPA has accompanying this rule. which Is deCerrina to RCRA more sites are
, decided to place them on' the NPL in , av~nable In the Superfund dockets. addressed. and th~ overall goals of both
order to make full ~CLA resources Vla. Support for the Policy statutes are advanced.
Bnd authorities available. , . . ' ,
, . A nuniber of commenters supported Two commenters opposed transfemng.
, (4) Pre-HSWA PermJuee.: FacWtie8 with the poliCJ to drop sites from the NPL sites from CERCLA to RCRA authorities,
~~~~~==~~ ,thatQID be,adequately addreeaed under main~t enforcement ov~t ,
werel88aedpriartOtIIe.,...-ofHSWA, the correctiveactlon.authoritie8,ol -, faP:88.ter. CERaA thanReRA.
8Dd'Wbo.OWII8t/~tarwiD"'''' -: ",;~,Subtitle~0D8~-. ',: ,.'ID~'BPAbe11eveatheRCRA.,
"ohm~cim88Dlto"'~ofth81t '. ~~A'~',.blUt1tobdliateabort-. prosraiD.,888IU'888dequateovenisht.
permit toJa" COd-U.... ac:IIOD '..,,' .,: ". temLemersenq, ~ at RCRA sU.. :' RCRA orden and permits estabJish
'requ1remeD18. - ' .. .' ADok commenteuupparteci the.. , .' ~t"OD 1uite-by.eite bali& If a
For facilities with j)ermibl that pre- plimned use of RCRA authority remedial action 18 extremely complex 0Ii'
date HSWA. the owner/operators are wheneve, possible. since the use of the owner/operator fa not ful.ly'
not required through the permit to RCRA authorities "avoids the cooperative, EPA may provide extensive
perform corrective action for reJeases admJnfatrative complexity and overaJsht. In other ceaea. extensive
from solid waste management unfts, and unneeded poJitical burden of NPL oversight fa not necessary. In any event,
the Asency does not have the authority liatiDg... . . ' SPA Inspection requirements apply to
, to inodfi1r such pre-HSW A pemuts to ,In response. the Agency notes that Its all tiltes UDder RCRA corrective action
include facility-wide RCRA corrective decf8fon to ~er certain utes subject to authorities. Under RCRA. States may be
actiaD under RCRA section 3OOI(u) until the RCRA Subtitle C corrective action " . authorized to operate a hazardous waste
the permit is relseued. Because Dumy . . authoritie.18 ,based on the ability of' ,program in lieu of the Federal program.
pre-HSWA permits are for 10 years. those authorities to achieve cleanup at a Consequently, in many celles States.
with the last pre-HSWA permit haviDgsite and to ~e CERCLA resources ' . pro~de ove1'8ight (RCRA section 3(06).
, been issued ~r to November 8, 19M. it for use at,~ther Sltes.. .' . One 80mmenter opposed the policy to
. could be'191N, before ,the Agency ~~d, ,', VLb. OppOsition to tlitiPolk:Y ,,' drop RQA sites from the NPL because
reisSue 8OD18 permits to ~ude "'A:" .' her, 'of'" .~.......;- RCRA was not Intended as a cleanup.
corrective actioD requirements. . '. '. . Dum comm~-- 0.........- bilL. '.
. "Therefore. the A8ency u. declded.to . . droppiag RCRA.aitas &om the proposed. . , '
'. : list RCRA facilities. with pre-HSWA ,.' . NPL, transferring th~ sites, from CBRCLA In response, th~ Agency disagrees. As
" p8rm1ts' (that haVe IfRS aeores Of at ' , to RCRA authorities,,~n ~ grounc18 that dIaCuss~ ;~U' ~WA ~at1y cti
leut ~ or are otherwise eligible for SuperfUDd,"autboritiee are more '. expan u e corre ve a on
listing) 80 that CERCIA authorities wiD. protective of huioan health and the,' alithoriUes,. and EPA. believes a ,
be avaUabJe t 01'8 expenditiousJy environment than are RCRA authorities. comple~e cleanup can be achieved under
addre8a any r:.:ses at such site.. ' One commenter, stated that Superfund ReRA. As the House Committee on
H if th .tted t: ciUty.. cleanup standm:da are more atrfnsent Energy and Commerce noted In its .
co-::::io th: ~:ance :f Its pre- than RCRA'.. The cOmment~noted that report on HSW A: .
HSWA permit to include corrective CERCLA requires permanent treatment UoIeaa aU hazardous constituent releales
action requirements. the Agency will to the maxirilum extent feasible. from lOUd waste managment units Bt
consider not adding the facility to the whereas RCRA does DoL The . p_lted facWties are addre8aed imd
NPL . commenter added that the RCRA deaued up the Committee fs deeply
, ,', , program does not Include cleanup concemed that many more lites will be
Flnonclallnabih"ty to Pay' , guidelines similar to those under added to the ~ture burdens of the Superfund
. '( ) EPA S perfund.' An th d program with Uttle prospect for control or
C?n August 9. 1988 53 FR 30002 , U 0 ~ commenter ~ate deanup. The responsibility to control such
solicited comment on amendments to that CERCLA offers more remedial. ' releuee 'Ueewith the facility OWDer and
the NPJ./RCRA policy co~ the . Opti0D8 than RCRA. '. . operator and should DOt'be shifted to the
" Inability of an owner/ o~eri1~ to pay .', In response, bo~ statutes require that Superfund program. particularly when a &aa1
:: ' Cor cleanup at.a RCRA~t~d site. remedies employ~ pro~ect hUIDIUI (RCRAI permit baa beea requested by the
~ .
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Attachment II
OIG Audit Recommendations from "Superfund Sites Deferred to RCRA"
2-1. Develop a method and procedures for EPA regions and. the states to use to evaluate deferrals not
in the RCRA corrective action workload, but which may pose risk to human health and the .
environment. (Note: Recommendations 3-1, 4-4, 4-6, and 4-7 should be considered when developing
the method and procedures.)
3-1. In cooperation with the states, assess the sites that were inappropriate. for deferral. Develop
. criteria to determine which of them will be evaluated, update site characterizations, prioritize the sites,
and identify the best legal authority and available resources to effect cleanup.
3-2. Reemphasize the need for communication and collaboration between Superfimd and RCRA
regional officials prior to deferring sites from one program to another. Restate the criteria for deferring
sites, and require regions to maintain written documentation (for example, the deferral checklist)' which
shows that the decision to defer has been agreed to by both programs. Sites should not be considered
deferred, or coded as such in respective information systems, until written acceptance of the proposed
deferral( s) by the receiving program is obtained.
4-1. Add a code in CERCUS for deferring sites to other EP A programs.
4-2. Change tlle status of the 13 sites with low HRS scores in CERCUS to reflect the NFRAP
designation rather than deferral to RCRA.
4-3. Revise CERCUS to reflect the appropriate status of the 14 sites scoring equal to or 'above 28.5
in the HRS that were incorrectly coded as deferred to RCRA.
4-4. Delay archiving sites until OSWER develops a policy to determine whether state or tribal cleanups
are adequate. Include as a prerequisite to archiving, a requirement for five-year reviews or some
comparable process for sites 'where hazardous substances have been left on site so protectiveness of
remedies can be assured over the long term.
4-5. Enter into written agreements when sites of federal interest are deferred to states.
4-6. Determine whether the sites that were not scored but were deferred to states merit federal
interest, and proceed with recommendation 4-2 or :4-3 and 4-4 and 4-5 as appropriate. '
4-7. Determine the appropriateness of the deferral (see Chapter 2 for guidance and discussion) for the
58 status unknown sites. After coordination with RCRA and state officials, either defer and update
, RCRlS accordingly, assess for potential listing on the NPL, or retain and momtor state cleanup
progress in CERCUS.' .
4-8. Adjust the active/archived status in CERCUS as necessary.
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Attachment ill
Impact of OSWER response to OIG audit of "Superfund Sites Deferred to RCRA"
on RCRA Corrective Action Program and Staff
In order to assist the Superfund program in addressing the OIG's recommendations, the RCRA
Corrective Action (CA) program must carefully focus its efforts.
The RCRA CA program has .twice analyzed and reported to the Superfund program the
approximately 800 facilities, out of the nearly 3,000 deferred (from CERCLIS2 and CERCLIS3), that
are in the CA Workload Universe in RCRIS. Facilities in the CA Workload are either being
addfessed by the RCRA CA program ~urrent1y (with RFI Imposed) or will be in the future due to
RCRA permitting requirements, and, for the purposes of responding to this audit should be considered
to have been properly deferred from CERCLIS.
To f\n1her assist the Superfund program in responding to the OIG's recommendations and
fulfilling the RCRA CA program's role in the deferral process the EPA's Regional offices of the RCRA
CA program should be ready to review those facilities that the Superfund program believes should be in
the CA Workl.oad Universe (Le., properly deferred). This may involve additional review ofRCRIS for
new identification numbers and/or names not previously supplied to the RCRA CA program.
However, for the purposes of responding to the OIG's recommendations, the RCRA CA
program staff should not initiate reviews, in Federal or State files, for facilities ~t the CA program
does not have evidence that they are in, or should be in, the CA Workload Universe. Individual EPA
Regional or State offices of the RCRA CA program may assist the Superfund program by conducting
/ .
reviews and accepting responsibility for additional individual facilities that are subject to Corrective
Action (e.g., via 3008h, 7003 or other Orders) and that are intended to be addressed by RCRA CA in
the future, when resources become available.
Acceptance of responsibility (by the RCRA CA program) for facilities deferred from
CERCLIS that are not in the CA Workload Universe, but are subject to future Corrective Action
should be documented (with written acceptance) as described above in this OSWER Directive.
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