&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
9330.2-5
TITLE: CERCLA Off-site Policy: Providing Notice
To Facilities
APPROVAL DATE: April 2B, 1986
EFFECTIVE DATE: May 12, 1986
ORIGINATING OFFICE: office of Waste Programs
B FINAL Enforcement
D DRAFT
STATUS.
REFERENCE (other documents):
OSWER OSWER OSWER
'E DIRECTIVE DIRECTIVE Dl
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vvEPA
United States Environmental Protection Agency
Washington, DC 20460
OSWER Directive Initiation Request
Interim Directive Number
9330.2-5
Originator Information
Name of Contact Person ...
Michael Kilpatrick
Lead Office D OUST
D OERR [3 OWPE
D OSW [] AA-OSWER
Mai'»527
Telephone Member -7 •• c
Approved for Review
Signature of Office Director .
w.t. (y**4 ,£r/
Date
4/28/86
Title
CERCLA Off-site Policy: Providing Notice To Facilities
Summary of Directive
Guidance on providing notice to commerical treatment,
storage and disposal facilities which are deemed ineligible
to receive CERCLA response wastes. Regions concurrent with
initiating enforcement action. Facilities may submit written
comment on the application of the policy to the conditions
alleged at their facility.
Keywords
Notice, Notification, Due Process, Eligibility, Procedures
Facilities
Type of Directive (Manual, Policy Directive. Announcement, etc.)
Status
D Draft
E Final
QLI New
1 — 1 Revision
Does this Directive Supersede Previous Directive(s)? [ | Yes IM No Does It Supplement Previous Directive(s)? (Xl Yes M No
If "Yes" to Either Question. What Directive (number, title)
Review Plan
D AA-OSWER
D OERR
D OSW
LJ OUST
D OWPE
I—I Regions
D OECM
D OGC
D OPPE
D
Other (Specify)
This Request Meets OSWER Directives System Format
Signature of Lead Office Directives Officer
Signature of OSWER Directives Officer
Date 4/28/86
Date
^fe
EPA Form 1315-17 (10#S)
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Directive t 9330.2-5
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAY I 2 1986
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT:
FROM:
TO:
Jr./ Winston Porter
Assistant Administrator
Policy: Providing Notice to Facilities
Regional Administrators, Region I-X
Background
On May 6, 1985, the Acting Assistant Administrator issued
interim guidance on Procedures for Planning and Implementing Off-
site Response Actions (Off-site Policy). Its purpose was to
provide criteria for selection of off-site commercial waste
treatment, storage and disposal facilities which may receive
hazardous substances from sites where response actions are taken
under the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA or Superfund). These criteria are necessary
to prevent CERCLA generated wastes from contributing to present
or possible future environmental problems, and to minimize the
potential for future federal liability at problem facilities.
Key provisions of the policy include:
0 A preference is established for use of treatment, re-usa
or recycling over land disposal.
0 Wastes may only be sent to permitted (or interim status)
facilities.
0 Land disposal facilities must meet the minimum technical
requirements established by the Hazardous and Solid Waste
Amendments of 1984 (double liner, etc) absent a showing
that other facilities can provide adequate protection.
0 Facilities must have no significant violations or other
physical conditions which may pose a significant threat.
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Directive # 9330.2-5
-2-
The interim guidance was made effective June 5, 1985 and was
subsequently published in the Federal Register November 5, 1985
and comments from the public were sought. Comments were received
from states, other federal agencies, commercial facilities,
major chemical companies and other organizations. As a result
of those comments and experience gained in the first year of
implementing the policy, revisions will be made and the policy
will be published as a final Agency policy later this spring.
Issue - Notice to Facilities
Some commenters pointed out that the interim policy provides
no specific requirement or mechanism for notifying facilities
that violations or other conditions at their facility make them
ineligible for receipt of Superfund wastes. Because the policy
will affect the ability of a facility to receive Superfund response
wastes, commenters argue that notice and opportunity to respond
be provided before final determinations of ineligibility are
made.
In adopting procedures that address the comment, EPA must
consider several concerns:
0 Programmatic need to ensure that wastes are not sent to
facilities which do not meet the criteria of the policy.
0 Accommodation of notice and fairness concerns, consistent
with the nature of these decisions.
0 Avoiding interference with enforcement actions which are
the basis for decisions made under the policy.
0 Resource limitations of EPA regional offices.
The following procedures are an attempt to balance all of the
above concerns.
Notice Procedures
0 Regions should provide written notice to facilities of
their status under the policy, generally concurrent with
the bringing of enforcement action for significant
violations (generally Class I). Notice may be given at
any time after discovery of a violation. Where a signifi-
cant lag is expected between notification and bringing of
a formal enforcement action, notice should generally
be accompanied by a notice of violation. The facility
becomes ineligible to receive Superfund wastes upon
notification.
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Directive # 9330.2-5
-3-
0 Notice should be provided through standard language
incorporated into transmittal letters for AOs or NOVs,
or through a form letter when civil actions are brought
(see attached language).
0 Notice should provide an opportunity for the facility to
submit written response to EPA as to the application of
the policy to the fact situation alleged in the enforcement
action. Comments as to the validity of the allegation of
violations would not be considered in the context of
determinations under the policy. (Any such concerns
should be addressed in the forum provided as part of the
enforcement action).
0 Regions should provide written response to comments
submitted, addressing only those related to the applica-
tion of the policy, not the merits of the enforcement
action. The response should be signed by the appropriate
Division Director and should include a final statement
as to the eligibility or ineligibility of the facility.
0 Where enforcement actions (NOV, AO, Civil Action) were
brought by an authorized state, Regions should provide
similar written notice upon receipt of information on
significant violations from the state. Regions may
arrange agreements whereby states provide notice directly
concurrent with their enforcement action. However,
written comment should be directed to both EPA and the
State, with EPA participation in the final eligibility
determination.
0 Where determinations of ineligibility are made based on
"other conditions" Regions should give similar notice
identifying those conditions which trigger ineligibility
under the policy. Facilities should be invited to comment
on the application of the policy to the conditions cited.
Unless those conditions are also the subject of a concur-
rent or ongoing enforcement action under RCRA §3008(h)
or other authority, Regions should also request and
respond to comments related to the validity of findings.
Interim Guidance
The procedures outlined above are intended to be used by
Regions on an interim basis pending revision to the Off-site
Policy this spring. At that time, provisions for notice to
facilities will be incorporated into the policy. Regional comment
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Directive # 9330.2-5
Directive ft 9330.2-5 -4-
on these procedures is solicted and should be directed to Michael
Kilpatrick of the Office of Waste Programs Enforcement (WH-527).
Attachment
cc: Marcia Williams, Director OSW
Henry Longest, Director OERR
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Directive f 9330.2-5 Attachment
INSERT FOR NOV OR COVER LETTER FOR AO
Applicability of EPA's Off-Site Policy to the facility.
On May 6, 1985, the Acting Assistant Administrator issued
interim guidance on Procedures for Planning and Implementing Off-
site Response Actions (Off-site Policy). Its purpose was to
provide criteria for selection of off-site commercial waste
treatment, storage and disposal facilities which may be used for
response actions taken under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA or Superfund).
These criteria are necessary to prevent CERCLA generated wastes
from contributing to present or possible future environmental
problems. A key provision of the policy is that facilities
must have no significant violations or other physical conditions
which may pose a significant threat.
As a result of the violation(s) and/or conditions described
herein, your facility is ineligible to receive waste from response
actions taken under CERCLA. If you have any information which
indicates that your facility does meet the criteria set out in
EPA's off-site policy please provide this information, in
writing to:
Regional Division Director
[Address]
The Agency will fully respond in writing, within 30 days, to any
comments regarding the applicability of the off-site policy to
violations/conditions described. Comments addressing the validity
of alleged violations or conditions which are the basis of an
enforcement action will not be considered in the content of this
determination.
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