3EPA
              Unittd State*
              Environmental Protection
              Agency
            Off ice of
            Solid W»«te and
            Emergency Responee
 DIRECTIVE NUMBER:  9834.13

 TITLE: ' TR^NSMITT^>"OF " INTERIM POLICY ON' CERCLA..."
                            i



.APPROVAL DATE;   .December 6, 1989

 EFFECTIVE DATE:   December 6, 1989

 ORIGINATING OFFICE:  OWPE

 Q FINAL

 D DRAFT

 LEVEL OF DRAFT

   ChA — Signed by AA or DAA
   SB — Signed by Office Director
   DC — Review & Comment
       •  ,*
        i ,
 REFERENCE (other documents):
  OS WER      OS WER      OS WER
VE    DIRECTIVE    DIRECTIVE   Dl

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*^ ^«» A ~ -'3 United States Environmental Protection Agency
JELPPA -.* V^' • Washington. DC 204«0
ocrM . OSWER Directive Initiation Reau
• • • Z Originator Information
Hunt of Contact Person > . •• t -^ Mad Code Office
Kathy MacKinnon. - ' 0'S-'510 OWPE
3. Title v. ,' .—
Transmittal of Irlnterim Policy on CERCLA..."
* * .
1. Directive Number
est 9834-13

Telephone Code
475-6771
•
4. Summary of Directive (include brief statement of purpose) •„
This memorandum establishes EPA''S, interim policy on settlements involving municipaliti
or municipal vastes under .Section 122 CERCLA as amended by SARA 1
•. _ >»•".' '
' ' *•/•••''
t * . «* •
5. Keyword*. , . ... • //•• , •.^;;'.I/
Settlements, "Municlpai'^wlstes, Municipalities
Sa. Does This Directive Supersede Previous Directive^)? ««,*; v .
- " ' *§^!*?- • No Yts w
, , ' tfl«VfV-U.-^ ^~~^
b. Does It Supplement Previous Dlnctive(s)?
1 • Y N^ Yes w
^
7. OraK Level
A- Signed by AA/DAA I 1 B- Signed by Office Director C-ForR
...«, l^»^J ' ' V ' — -'

hat directive (number, title)
hat directive (number, title)
ivlew & Comment I 1 D - In Development
       8. Document to be distributed to States by Headquarters?  I IYM  [x|No
This Request Mt«ts OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator . - *- .
^ « •
10. Name and Title of Approving Official , -
Oat*
Date ^
   EPA Form 1315-17 (Rev. S-«7) Previous editions are obsolete^'
                       •. t
  OSWER-- -  OSWER         OSWER         O
VE   DIRECTIVE     DIRECTIVE     DIRECTIVE

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. O.C. 20460
                           OEC-6
MEMORANDUM                                  SOLID WASTE AND EMERGENCY SESPONSE

SUBJECT:   Transmittal  of "Interim Policy on CERCLA Settlements
           Involving Municipalities and Municipal Wastes"
           (•referred to as the "Municipal Settlement Policy")
FROM:      Don  R.  Clay  _
           Assistant Administ
TO:       Regional  Administrators
     Attached  is  a  package containing the interim "Municipal
Settlement  Policy"  and other related documents as follows:

     o    The  "Interim CERCLA Municipal Settlement Policy Fact
          Sheet"  which summarizes certain key provisions of the
          interim policy.

     o    The  "Interim Policy on CERCLA Settlements Involving
          Municipalities  or Municipal Wastes" which provides
          guidance  to  the Regions on how to involve
          municipalities  and wastes in the Superfund settlement
          process and  other related issues.

     o    The  "Federal Register Notice" which explains to the
          public  the process the Agency used for developing this
          interim policy,  the Agency's rationale for this interim
          decision, and how they may provide the Agency with
          formal  comment.

Attachments

cc:

Directors, Waste  Management Divisions, Regions I, IV, V, VII, and
viii
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Region III
Directors, Air and  Waste  Management Division, Regions II and VI
Director, Toxics  and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
CERCLA Branch  Chiefs,  Regions I - X
CERCLA Section Chiefs,  Regions I - X
Regional Counsels,  Regions I. - X
Regional Counsel  Branch Chiefs,  Regions I - X
                                                          Prinud on Rtcyeltd Paptr

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 INTERIM  CERCLA
 MUNICIPAL  SETTLEMENT
                FACT  SHEET
                               *    --   *
                               \mj
                                                                           DECEMBER  1989
                          OFFICE  OF  WASTE  PROGRAMS   ENFORCEMENT
 I.        INTRODUCTION
IV.     NOTIFICATION
     This fact sheet summarizes certain key provisions of
 tit* "Interim Policy on CERCLA Settlements Involving
 Municipalities or Municipal Wastes" COSHER Directive
 19834.13); it doe* not cover all aspects of the interiia
 policy nor provide definition* of key terms.  The Municipal
 Settlement Policy has been developed to provide the Region*
 with national guidance on hou to involve municipalities and
 municipal wastes (i.e., municipel solid waste (MSU) or
 sewage sludge) in the Superfund settlement process.  It also
 addresses how the treatment of municipalities and municipal
 wastes affects the treatment of private parties and certain
 kinds of commercial, institutional, or industrial waates.
 II.     CERCLA  LIABILITY
     CERCLA doe* not provide an exemption from liability for
municipalities nor for municipal wastes.  Municipalities may
be potentially responsible parties (PRPs) like private
parties if they fall within the categories of liability
specified under Section 107(a) of CERCU (e.g.,  if they are
owners/operators of facilities, or generators/transporters
of hazardous substances).  Municipal wastes nay be
considered hazardous substances if they are covered under
the definition of hazardous substances in Section 101(14) of
CERCLA and if they are the subject of a release or
threatened release.  The interim policy does not provide an
exemption from legal liability for any party or any
substance; potential liability continues to apply in all
situations covered under Section 107 of CERCU.
 III.   INFORMATION
           GATHERING
    All owners/operators and generators/transporters should
generally be included in the information gathering process
(e.g.. they should all generally receive Section 104(e)
information request letters).  This  includes municipal
owners/operators of facilities a* well a* municipal and
private party generators/transporters of municipal wastes.
    Owners/operators;  Both municipal and private party
past and present owners/operators should generally receive
notice letters.

    Generators/transporters of municipal solid waste;
Municipal and private party generators/transporters of NSW
will not generally be notified as PRPs unless:

  o      the Region obtains  site-specific  information that
         the MSU contains a  hazardous substance; AND

  o      the Region ha* reason  to believe  that  the
         hazardous substance is derived from a  commercial,
         institutional, or industrial process or activity.

Notwithstanding this general policy, EPA may consider
notifying generators/transporters for MSW containing a
hazardous substance derived only from households in truly
exceptioneI situations where the total contribution of
commercial, institutional',  and industrial hazardous waste by
private parties is insignificant when compared to the MSU.

    Generators/transporters of sewage sludge;  Municipal
and private party generators/transporters of sewage sludge
will not generally be notified a* PRPs unless:

  o      the Region obtains  site-specific  information that
         the sewage sludge contains a hazardous substance;
  o      the Region has re**on to believe that the
         hazardous substance is derived from a centnerciat,
         institutional, or industrial process or activity.

    Generators/transporters  of trash from a commercial.
institutional,  or industrial  entity;  Parties who are
generators/transporters of trash frost a commercial,
institutional,  or industrial  entity will not generally be
notified a* PRPs if such parties demonstrate to the Region
that:

  o      none of the hazardous substances contained  in the
         trash are derived from a commercial,
         institutional, or industrial process or activity;

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        a        the amount and toxicity of  the hezardous
                 •ubatancea contained in the traah do not
                 •xcaed thoe* which one would expect to find
                 In common household trash.

     Generators/transporters of any other hazardous
t^itrstance.  ind'Hine  lOM*hezar*fr?*is jp**>*trial wastes?
Municipalities and private parties Mho are generators/
transporters of any hazardous substance or any subatance
that contains a hazardous substance (except those discussed
above) will  generally  be notified as PRPs.  This  includes
low-hazardous industrial wastes like certain paint sludges
and industrial waateweters.
V.        SETTLEMENTS
     The overall  process and goals for reaching sett tenants
it sites involving mjnicipalities or sunicipel Maates is  tfte
sane as for other Super-fund sites (e.g., to reach one
settlement agreement),  although separate settlements  like dj
ni minis sett laments nay be used where appropriate.

     Nonetheless, there ere sone sett lament provisions that
lay be particularly suitable for municipal PRPs (e.g.,
delayed payments, delayed payment schedules, and in-kind  -
contributions).   These  settlement provisions are not
routinely available to  municipal PRPs, but nay be considered
nhere s municipality has successfully demonstrated to EPA
that they are  appropriate.  These settlement provisions may
« separate settlements or may be folded into a larger
-atttenant that  includes private parties.  Although these
-ettlement provisions may be particularly appropriate for
municipalities,  they may be available to private parties,
-uch as certain  saall businesses, where appropriate.

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     si
     1       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, O.C. 20460
               '                               OSWER DIRECTIVE
                                                 #9834.13


                            DEC -6 1989                OFe,CEOP
MEMORANDUM                                   SOLID WASTE AND EMERGENCY RESPONSE

SUBJECT:  Interim  Policy  on CERCLA Settlements Involving
          Municipalities  or Municipal Wastes
FROM:     Don R.  Cla
          Assistant Administra

TO:       Regional Administrators,  Regions I - X

I.   INTRODUCTION

     A)   Focus of Interim Policy

     This memorandum  establishes EPA's interim policy on

settlements  involving municipalities or municipal wastes under

Section 122  of the Comprehensive Environmental Response,

Compensation, and Liability Act of  1980 (CERCLA or Superfund) as

amended by the Superfund  Amendments and Reauthorization Act of

1986 (SARA).  In  particular,  this interim policy indicates how

EPA will exercise its enforcement discretion when pursuing

settlements  which involve municipalities or municipal wastes.

The municipal wastes  addressed by this interim policy are

municipal solid waste (MSW)  and sewage sludge as defined below.

This interim' policy has been developed to provide a consistent

Agency-wide  approach  for  addressing municipalities and municipal

wastes in the Superfund settlement  process.
     1   This interim policy does not provide  an exemption from
potential CERCLA  liability  for any party; potential liability
continues to apply  in  all situations  covered under Section  107 of
CERCLA.
                                                           Priiutd on Rieycted Paper

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                                       OSWER DIRECTIVE #9834.13
     Although this interim policy focuses on municipalities and
municipal wastes, it addresses how private parties and certain
kinds of commercial, institutional, or industrial wastes will be
handled in the settlement process as well.  It is important to
address private parties and certain kinds of commercial,
institutional, or industrial wastes in this interim policy
because private parties sometimes handle municipal wastes or
wastes of a similar nature and because municipal and private
party waste streams are sometimes co-disposed at sites,
particularly municipal landfills.  The kinds of commercial,
institutional, or industrial wastes covered by this interim
policy include "trash from a commercial, institutional, or
industrial entity" and "low-hazardous industrial wastes" as
defined below.
     There are three fundamental issues addressed by this interim
policy.  First is whether to notify generators/transporters of
MSW or sewage sludge that they are considered to be potentially
responsible parties  (PRPs) and to include them in the Superfund
settlement process.  Such parties are usually municipalities,
although they may include private parties as well.  Second is how
municipalities should be handled in the Superfund settlement
process when the decision is made to notify them that they are
PRPs under Section 107(a) of CERCLA.  Third is how the treatment
of municipalities and municipal wastes under this interim policy
affects the treatment of private parties and certain kinds of

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                                       OSWER DIRECTIVE #9834.13
commercial, institutional, or industrial wastes in the Superfund
settlement process.
     Key questions specifically addressed as part of this interim
policy include the following:                   -
     o    Information Gathering;  Should municipalities be
          included in the Agency's information gathering process?
          Should generators/transporters of MSW or sewage sludge
          be included in the information gathering process?
     o    Notification:  Should municipalities be notified that
          they are PRPs?  Should generators/transporters of MSW
          or sewage sludge be notified as PRPs?
     o    Settlements:  How should municipalities be handled in
          the Superfund settlement process?  What settlement
          process and settlement tools should be used to
          facilitate settlement involving municipalities or
          municipal wastes?
     o    Private Parties;  How does the treatment of
          municipalities and municipal wastes affect the Agency's
          treatment of private parties and certain kinds of
          commercial, institutional, or industrial wastes?

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                                       OSWER DIRECTIVE #9334.13
     B)   Kev Terns Used  in Interim Policy^
     The following defines the key terms used in this interim
policy:
     o    The term "municipalities'* refers to any political
          subdivision of  a State and may include cities,
          counties, towns, townships, and other local
          governmental entities.
     o    The term "municipal solid waste" refers to solid waste
          generated primarily by households, but may include some
          contribution of wastes from commercial, institutional
          and industrial  sources as well.  As defined under the
          Resource Conservation and Recovery Act (RCRA), MSW
          contains only those wastes which are not required to be
          managed as hazardous wastes under Subtitle C of RCRA
          (e.g., non-hazardous substances, household hazardous
          wastes (HHW), or small quantity generator  (SQG)
          wastes).  Although the actual composition of such
          wastes varies considerably at individual sites, MSW is
          generally composed of large volumes of non-hazardous
          substances  (e.g., yard waste, food waste, glass, and
        The definitions provided under this section are for the
purpose of this interim policy only.  Where possible,  this
interim policy includes already existing definitions used under
other Federal environmental programs  (e.g., under the  Resource
Conservation and Recovery Act or the  Clean Water Act).  However,
nothing in this interim policy affects the regulatory  efforts of
these other programs.

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                                       OSWER DIRECTIVE #9834.13

          aluminum) and may contain small quantities of household

          hazardous wastes (e.g., pesticides and solvents) as

          well as small quantity generator wastes.3  Many

          industrial solid wastes and some commercial and

          institutional solid wastes are managed separately from

          household wastes, but may enter the MSW waste stream.

          The term "municipal landfill" refers to any landfill,

          whether publicly or privately owned, that has received

          municipal solid waste for disposal.

          The term "sewage sludge" refers to any solid, semi-

          solid, or liquid residue removed during the treatment

          of municipal waste water or domestic sewage.4

          The term "trash from a commercial, institutional, or

          industrial entity" refers to waste which is very
        All household wastes,, including household hazardous
wastes, are unconditionally exempt from the Federal hazardous
waste regulations promulgated under Subtitle C of RCRA  (See 40
CFR Section 261.4 (b)(l)).  With regard to non-household sources
of solid waste, if such waste is not a listed or characteristic
hazardous waste accumulated in quantities exceeding the small
quantity generator limitations (i.e., less than 100 kg/month of
hazardous wastes and less than 1 kg/month for acute hazardous
wastes), such waste is not required to be managed in a RCRA
Subtitle C hazardous waste treatment, storage, or disposal
facility (See 40 CFR Section 261.5).  "Household hazardous
wastes" refers to those wastes which are generated by households
and would be managed as hazardous wastes under RCRA Subtitle C if
they were generated by a non-household in quantities exceeding
the small quantity generator limitations.

     4  The definition of sewage  sludge is contained in the
National Pollutant Discharge Elimination System Sewage  Sludge
Permit Regulations published in the Federal Register as a  final
rule May 2, 1989 (See 40 CFR Part 122.2).

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                                       OSWER DIRECTIVE #9834.13
          similar to the MSW that is derived from households.
          This term covers only those wastes that are essentially
          the same as what one would expect to find in common
          household trash.  This term does not include hazardous
          substances that are derived from a commercial,
          institutional, or industrial process or activity.
     o    The term "low-hazardous industrial wastes" refers to
          high volume wastes that contain small quantities of
          hazardous substances derived from an industrial,
          commercial, or institutional process or activity.
          Examples may include certain paint sludges or
          industrial wastewaters.
II.  CZRCLA LIABILITY
     Important questions have been raised about whether
municipalities may be PRPs and whether municipal wastes  (i.e.,
MSW and sewage sludge) may be considered hazardous substances
under CERCLA.
     A)   Municipalities as PRPs
     The statute does not provide an exemption from liability for
municipalities.  Municipalities may be PRPs like private parties
if municipalities fall within the categories of liability
specified under Section 107(a) of CERCLA.  In general, Section
107(a) establishes liability for past and present owners or
operators of facilities as well as generators or transporters of
hazardous substances for the release or threatened release of

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                                       OSWER DIRECTIVE #9834.13
hazardous  substances.  Such parties may be liable for the costs
of responding to a  release or threatened release of hazardous
substances as well  as  for resulting damages to natural resources.
The specific categories of liable parties under Section 107(a)
are:                                         -. r --•
     1.    the owner and operator of a vessel or a facility,
     2.    any person who at the time of disposal of any hazardous
           substance owned or operated any facility at which such
           hazardous substances were disposed of,
     3.    any person who by contract, agreement, or otherwise
           arranged  for disposal or treatment, or arranged with a
           transporter  for transport for disposal or treatment, of
           hazardous substances owned or possessed by such person,
           by any other party or entity, at any facility or
           incineration vessel owned or operated by another party
           or entity and containing such hazardous substances,
           [commonly referred to as "generators"5],  and
     4.    any person who accepts or accepted any hazardous
           substances for transport to disposal or treatment
        Persons who fall into this category are commonly referred
to as "generators," although liability under this Section extends
beyond "true generators" of hazardous substances to include
persons who arranged for the disposal or treatment of hazardous
substances owned or possessed by such party or another party.
The term "generator" is used throughout this document to refer to
any party who is potentially liable under Section 107(a)(3).

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                                        OSWER  DIRECTIVE  19834.13
            facilities,  incineration vessels, or sites  selected by
            such person  [commonly  referred to as "transporters'1].
      Section  107(a)  describes  liable parties  as  "persons"  and the
 definition of "person"  under Section 101(21)  includes municipal-
 ities  and  political  subdivisions of a  State. . Municipalities may,
 therefore,  be PRPs as  part  of  CERCLA's broad  definition of who  is
 potentially liable.
      B)    Municipal  Wastes  as  Potential CERCLA Hazardous
            Substances
      Similarly, the  statute does not provide  an  exemption  from
 liability  for municipal wastes.   Municipal wastes  may be
. considered hazardous substances  if they are covered under  the
 definition of hazardous substances in  Section 101(14} of CERCLA.
 As  indicated  under the definitions of  MSW and sewage  sludge,
 these  municipal wastes are  generally characterized by large
 volumes  of non-hazardous substances and may contain small
               «
 quantities of household hazardous or other wastes, although  the
 actuaj, composition of  the waste  streams vary  considerably  at
 individual sites.  To  the extent municipal wastes  contain  a
 hazardous  substance  that is covered under Section  101(14)  of
 CERCLA and there  is  a  release  or threatened release,  such
 municipal  wastes  may fall within the CERCLA liability framework.
 III. INFORMATION  GATHERING
      The Regions  should include  all municipal and  private  party
 owners/operators  and generators/transporters  in  the information
                                  8

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                                       OSWER DIRECTIVE #9834.13

gathering process, including the generators/transporters of

municipal wastes.  This means that municipal owners/operators as

well as municipal generators/transporters should generally

receive Section 104(e) information request letters and should

otherwise be fully included in the information gathering process

like private parties.  Information obtained through such letters

or through other means is important for determining (among other

things) whether it is appropriate to notify a party as a PRP,

including whether to notify a generator/transporter of MSW or

sewage sludge as discussed below.6

IV.  NOTIFICATION OF POTENTIAL RESPONSIBILITY

     A)   Owners/Operators

     The same approach will be used for both municipalities and

private parties when determining whether to notify them as

owners/operators.  Specifically, such parties will generally be

notified where they were past owners or operators of facilities

at the time of disposal of hazardous substances, or they are

present owners or operators of facilities where hazardous

substances have been released or there is a threatened release.
     6  The Regions may accept and consider credible site-
specific information from any party to supplement their own
information gathering efforts as appropriate.

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                                       OSWER DIRECTIVE #9834.13

     B)   Generators/Transporters

     1.   Municipal solid waste:  Municipalities and private

parties will be treated the same when determining whether to

notify them as PRPs when they are genera tors/transporters of MSW.

Specifically, such parties will not generally be notified unless:

     o    the Region obtains site-specific information that the

          MSW contains a hazardous substance;8 Aj£Q

     o    the Region has reason to believe that the hazardous

          substance is derived from a commercial, institutional,

          or industrial process or activity.

This means that EPA will not generally notify municipalities or

private parties who are generators/transporters of MSW if only

household hazardous wastes  (HHW) are present, unless the truly

exceptional situation discussed below exists.  The general policy
     7  The categories of wastes discussed below, i.e., relating
to municipal solid waste,  sewage  sludge, trash  from a  commercial,
institutional,  or industrial  entity,  and low-hazardous industrial
wastes, are defined  in  the "Introduction"  to this interim  policy
(See I.B.).

     8  The term "site-specific" information refers to
information pertaining  to  a particular Superfund site.   "Site-
specific"  information does not  generally include, for  example,
"general studies" conducted by  EPA or other parties which  draw
general conclusions  about  whether MSW or sewage sludge typically
contain a  certain percentage  of hazardous  substances,  unless the
"general study" includes "site-specific" information obtained
from the PRP or Superfund  site  in question.  "General  studies"
may nonetheless be used to supplement "site-specific"
information.

                                10

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                                       OSWER DIRECTIVE #9834.13

 of not notifying parties who are generators/transporters of HHW

 extends to "HHW collection day programs" as well.9

     This also means that such parties may be notified as PRPs if

 the MSW contains hazardous substances from non-household sources.

 Non-household sources include, but are not limited to. small

 quantity generator  (SQG) wastes from commercial or industrial

 processes or activities, or used oil or spent solvents from

 private or municipally-owned maintenance shops.

     Notwithstanding the above general policy, there may be

 truly exceptional situations where EPA may consider notifying

 generators/transporters of MSW which contains a hazardous
     •
 substance derived only from households.  Such notification may be

 appropriate where the total contribution of commercial,

 institutional, and  industrial hazardous waste by private parties

 to the site is insignificant when compared to the MSW.10   In  this
        The term "HHW collection day programs" refers to programs
that have generally been sponsored by municipalities or community
organizations whereby residents voluntarily remove their HHW  from
their household waste.  The HHW is then typically disposed of in
a RCSA Subtitle C hazardous waste facility and the household
waste is typically disposed of in a RCRA Subtitle D solid waste
facility.

     10  The Regions should consider both the  volume and the
toxicity of the commercial, institutional, and industrial
hazardous waste when determining whether it is insignificant  when
compared to the MSW.  In determining whether  the volume is
insignificant, the Regions should consider the total volume of
such waste contributed by all private parties.  In determining
whether the toxicity is insignificant, the Regions should
consider whether such waste is significantly  more toxic than  the
MSW and whether such waste requires a disproportionately high
treatment and disposal cost or requires a different or more
costly remedial technique than that which otherwise would be

                                11

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                                       OSWER DIRECTIVE #9834.13
situation, the Regions should seriously consider notifying the
generators/transporters of MSW containing a hazardous substance
from households as PRPs and include them in the settlement
process where it would promote either settlement or response
action at the site.
     2.   Sevaae sludge;  Municipalities and private parties will
be treated the same when determining whether to notify them as
PRPs when they are generators/transporters of sewage sludge.
Specifically, such parties will not generally be notified unless:
     o    the Region obtains site-specific information that the
          sewage sludge contains a hazardous substance; AND
     o    the Region has reason to believe that the hazardous
          substance is derived from a commercial, institutional,
          or industrial process or activity.
     3.   Trash from a commercial, institutional, or industrial
entity t  Parties who are generators/transporters of trash from a
commercial, institutional, or industrial entity will not
generally be notified as PRPs if such parties demonstrate to the
Region that:
     o    none of the hazardous substances contained in the trash
          are derived from a commercial, institutional, or
          industrial process or activity; AND
technically adequate for the site.
                                12

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                                       OSWER DIRECTIVE #9834.13

      o    the amount and toxicity of the hazardous substances

          contained in the trash does not exceed that which one

          would expect to find in common household trash.

      4.   Anv other hazardous substance, including low-hazardous

 industrial wastes;  Municipalities or private parties who are

 generators/transporters of "any other hazardous substance" will

 generally be notified as PRPs if the Region obtains  information

 that  the substance is hazardous or that it contains  a hazardous

 substance.  This  includes notification of private parties who  are

 the generators/transporters of low-hazardous industrial wastes.

 "Any  other hazardous substance" in this category refers to any •

 hazardous substance covered under Section 101(14) of CERCLA other
                      •
 than  hazardous substances that may be contained in MSW, sewage

 sludge, or trash  from a commercial, institutional, or industrial

 entity  (as discussed under IV.B.l., IV.B.2., or IV.B.3. above).

 The generators/transporters of hazardous substances  that may be

 contained as part of the waste streams discussed under IV.B.l.,

 IV.B.2., or IV.B.3. should be addressed as specified above.

V.    SETTLEMENTS

      A)    Settlement Process

      Once the notification decision is made, the general goal  and

overall process for reaching settlement at sites involving

municipalities or municipal wastes is the same as for other

sites.  The general goal remains to negotiate with PRPs to reach

one settlement agreement that provides complete resolution of  all


                                13

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                                       OSWER DIRECTIVE #9834.13
pending CERCLA claims, and is consistent with both applicable
statutory requirements and EPA's Interim CERCLA Settlement
Policy.11  This means  that at sites where both municipal and
private PRPs exist, EPA will attempt to include both types of
parties in one settlement agreement.
     Although one settlement agreement is the goal for each site,
separate settlement agreements may be used at any site to
facilitate settlement, where appropriate.  This includes sites
involving municipalities or municipal wastes.  Separate
settlements are not automatically available to municipalities and
are generally available to such parties under the same conditions
as for private parties.  Examples of separate settlements are
Section 122(g) de minimis settlements and cash-outs which may be
used when they are consistent with applicable statutory
requirements and existing EPA guidance.12
     B)   Settlement  Provisions That Mav Be Particularly Suitable
          for Certain Municipalities
     As indicated, once parties are notified as PRPs, the overall
process and goals for reaching settlement at sites involving
municipalities or municipal wastes is the same as for other
Superfund sites.  Nonetheless, there are some settlement
provisions (e.g., delayed payments, delayed payment schedules,
     11   "interim CERCLA Settlement  Policy",  February 5,  1985,
50 FR 5034.
     12   For  example,  see "Interim Guidance  on Settlements with
De Minimis Waste  Contributors," June  30,  1987,  52  FR 24333.
                                14

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                                       OSWER DIRECTIVE #9834.13

 and  in-kind  contributions) that may be particularly suitable for

 facilitating settlement with certain municipal PRPs because they

 take into  account  a municipality's status as a governmental

 entity.13

      Such  settlement provisions are not routinely available to

 municipalities.  As a general rule, they may be considered where

 a municipality has successfully demonstrated to EPA that they are

 appropriate  (e.g., where valid ability to pay or procedural

 constraints  that affect the timing of payment exist).  These

 settlement provisions may be embodied in separate settlements or

 they may be  folded into a larger settlement that includes private

 parties.   In addition, although these settlement provisions may
               •
 be particularly suitable for municipalities, they may also be

 available  to private parties, such as certain small businesses,

 where appropriate.

      The following discusses how delayed payments, delayed

 payment  schedules, and in-kind contributions may be used:

      1.    Delayed payment:  If a municipality has demonstrated

 difficulty providing a lump-sum payment upfront for past costs or
        In some circumstances a municipality's  governmental
status may impose practical constraints on its  ability to  carry
out its legal obligation as a PRP under CERCLA.  For example,  a
municipality may need to hold a special vote involving its
legislative body or its citizens to gain approval to issue a bond
or arrange other financing to cover cleanup costs at a Superfund
site where it is a PRP.  These settlement provisions are designed
to take into account these types of unavoidable constraints that
may exist.

                                15

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                                       OSWER DIRECTIVE #9834.13
for cleanup needs, the settlement could be structured to allow
the municipality to pay at a specified future date.  This would
allow the municipality time to raise the money needed to cover
its contribution.  This may include an interest payment.
     2.   Delayed payment schedules (payments over time);  An
alternative to a delayed payment is to allow a delayed payment
schedule where the settlement is structured to allow the
municipality to pay over time based upon a predetermined schedule
of payments.  The payment schedule would be adjusted in such a
way that the discounted present value of the payment would be
greater than or equal to the settlement.14
     3.   In-kind contributions;  The settlement could be
      «
structured to allow for an in-kind contribution, especially where
a municipality can provide only a portion of its share of costs
or is unable to provide a monetary payment.  In-kind
contributions may be made in conjunction with or in lieu of cash.
Factors the Regions may use in considering the appropriateness of
an in-kind contribution may include the overall financial health
of the municipality, the amount of the municipality's share, the
     14  Delayed payment  schedules  may  include  "structured
settlements" which are settlements paid over time generally
through an annuity.  EPA is currently  developing guidance, titled
"Interim Guidance on the Use of Structured Settlements Under
CERCLA," which will establish criteria for evaluating whether  a
particular site is a good candidate for a structured settlement.
EPA expects to issue this interim guidance in  the Spring  of 1990.
                                16

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                                       OSWER DIRECTIVE #9834.13

value of the in-kind contribution, and the effect of the in-kind

contribution on the overall effort to achieve settlement.

     One mechanism for allowing an in-kind contribution could be

a "carve-out" order when, for example, the municipal PRP has

agreed to provide the operation and maintenance at the facility.

Other in-kind contributions could include the use of trucks and

equipment to carry out cleanup activities, the installation of

fences and the provision of other security measures to control

public access to the site, or the use of the municipality's

sewage treatment plant.

     C)   Contribution Protection

     Nothing in this interim policy affects the rights of any :

party in seeking contribution from another party, unless such

party has entered into a settlement with the United States or a

State and obtained contribution protection pursuant to Section

113 (f) of CERCLA.15

VI.  DISCLAIMER

     This interim policy is intended solely for the guidance of

EPA personnel.  It is not intended and can not be relied upon to

create any rights, substantive or procedural, enforceable by any

party in litigation with the United States.  The Agency reserves
     15  Under Section  113 (f), where EPA determines  that
settlement is in the best interests of the Federal  government,
CERCLA provides contribution protection to the settling parties
for matters covered by the settlement.  This may  include  a  party
who has not been notified as a PRP by EPA but wishes to settle
its potential CERCLA liability.

                                17

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                                       OSWER DIRECTIVE #9834.13



the right to act at variance with this policy and to change it at



any time without public notice.



VII. FOR niRTHKR INFORMATION



     For further information or questions about this interim



policy, the Regions may contact Kathleen MacKinnon in the Office



of Waste Programs Enforcement at FTS-475-9812.  Inquiries by



other persons' should be directed to Ms. MacKinnon at



202-475-6771.
                                13

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              DEC-6 1989
                                        OSWER DIRECTIVE
                                           #9834.13
FEDERAL REGISTER NOTICE
Superfund Program; Interim Municipal Settlement Policy
AGENCY:  Environmental Protection Agency
ACTION:  Request for Public Comment
SUMMARY:  The Agency is publishing the "Interim Policy on CERCLA
Settlements Involving Municipalities or Municipal Wastes"
(referred to as the Municipal Settlement Policy) today to inform
the public about this interim policy and to solicit public
comment.  This interim policy focuses on settlements  involving
municipalities or municipal wastes under Section 122  of the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA or Superfund) as amended by the Superfund
Amendments and Reauthorization Act of 1986 (SARA).  It also  -
addresses how the treatment of municipalities and municipal
wastes affects the treatment of private parties and certain kinds
of commercial, institutional, or industrial wastes in the
Superfund settlement process as well.
DATE:  Comments must be provided no later than 60 days after
publication of this interim policy.
ADDRESS:  Comments should be addressed to Kathleen MacKinnon,
U.S. Environmental Protection Agency, Office of Waste Programs
Enforcement,  Guidance and Oversight Branch (OS-510),  401 M
Street, S.W.,  Washington, D.C. 20460.

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                                   OSWER DIRECTIVE #9834.13


FOR FURTHER INFORMATION CONTACT:  Kathleen MacKinnon at the above


address or at (202) 475-6771.


SUPPLEMENTAL INFORMATION:


     The following supplemental information is provided to assist


the public in reviewing and commenting on EPA's interim policy:


     I.   Effective Date of Interim Policy and Role of Public
          Comment


     II.  Purpose of Interim Policy


     III. Focus of Interim Policy


     IV.  Why Settlement Involving Municipalities or Municipal


          Wastes Is An Issue


     V.   Discussion of Interim Policy


          A.   Public Input


          B.   EPA Consideration of Competing Public- Interests


I.   Effective Date of Interim Policy and Role of Public  Comment


     This interim policy is effective immediately.  However/ the


Agency emphasizes that this is an interim policy and that there


is an important role for public comment.  We are providing the


public with 60 days to review and submit comments in writing.


Based upon public comment or on our experience in implementing


the interim policy, the Agency may address additional  issues or
           •• ••*',..""" * '

revise the interim policy accordingly.
            -,'-' **.'

IT-  Purpose of Interim Policy


     The primary purpose of this interim policy is to  provide


interim guidance to EPA Regional offices on how they should

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                                   OSWER DIRECTIVE #9834.13
exercise their enforcement discretion in dealing with
municipalities and municipal wastes in the Superfund settlement
process.  An additional purpose is to provide municipalities and
private parties who may be potentially liable under Section
107(a) of CERCLA with information about how EPA will handle them
in the settlement process.  We believe this interim policy is
important for establishing a national framework that will help
facilitate our ability to reach settlements and will ensure that
sites involving municipalities or municipal wastes are addressed
consistently throughout the country.
III. Focus of Interim Policy
     The interim policy focuses on how EPA will proceed in
attempting to reach settlements at sites involving municipalities
or municipal wastes.  Focusing on settlements means the interim
policy indicates how EPA will attempt to reach voluntary
agreements for responsible party financing and/or cleanup of
sites involving municipalities or municipal wastes.  Nothing in
the interim policy affects any party's potential legal liability
under CERCLA.  Any decision EPA makes in exercising its
enforcement discretion under this interim policy does not mean
that potential CERCLA legal liability no longer applies.  In
particular, nothing in the interim policy precludes a third party
from initiating a contribution action.
     Focusing on settlements involving municipalities or
municipal wastes means that the primary intent of the interim

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                                    OSWER DIRECTIVE  19834.13
 policy is to address questions about how EPA should handle
 municipalities or municipal wastes in the Superfund settlement
 process.   However,  in the process of addressing those questions
 we  found  it necessary to address other issues relating to private
 parties and certain kinds of commercial,  institutional,  or
 industrial wastes.   We have addressed these related issues
 because private parties sometimes handle municipal  wastes,
^private parties generate some waste streams that are similar in
 nature to municipal wastes, and municipal and industrial wastes
 are sometimes co-disposed at the same site (particularly
 municipal landfills).
      Specific questions that have been examined by  EPA as part of
 this interim policy relate to who should be included in the
 information gathering process, who should be notified as
 potentially responsible parties, how municipalities should be
 handled in the settlement process, and how the treatment of
 municipalities and municipal wastes affects the Agency's
 treatment of private parties and certain kinds of commercial,
 institutional, or industrial wastes.
 IV.  Why  Settlement Involving Municipalities or Municipal Wastes
      Is An Issue
      Involving municipalities and municipal wastes in the
 Superfund settlement process is an issue because questions  have
 been raised about how such parties and wastes should be treated
 in  the settlement process.  Until the development of this interim

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                                   OSWER DIRECTIVE  #9834.13
 policy,  EPA had  not  addressed these questions  from  a national
 perspective.  This issue  is  important because  there are a
 significant number of proposed  and final sites on the National
 Priorities  List  (NPL) that involve municipalities or municipal
 wastes,  and EPA  expects more of these sites to be added to the
 NPL  in the  future.
     EPA has  identified 320  (about 25%) of the 1219 proposed and
 final NPL sites  that may  involve municipalities or  municipal
 wastes.  Of those sites,  236 (about 20%) have  been  classified as
 municipal landfills.  EPA defines a municipal  landfill as any
 landfill, either publicly or privately owned,  which has received
 municipal solid  waste.  Although it is difficult to accurately
 predict  how many of those sites involving municipalities or
 municipal wastes may be added to the NPL, historically about 20%
 of each  NPL update has included municipal landfills.  Municipal
 landfills are particularly complex sites to address because they
 typically involve multiple responsible parties (sometimes
 hundreds of different parties), multiple sources of wastes (often
 municipal and industrial  wastes), as well as diverse waste
 streams  (in terms of amount  and toxicity).
 V.   Discussion  of Interim Policy
          :?%;---
     In  thefpevelopment of this interim policy, EPA has examined
 a variety of issues and options for addressing these issues.
We have  also made an effort  to provide meaningful opportunities
 for interested parties to participate in the debate about

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                                   OSWER DIRECTIVE #9834.13
municipal settlements.  EPA has listened to all sides of the
debate and has attempted to develop an approach that is both fair
and manageable.
     A.   Public Input
     Throughout the development of this interim policy, EPA has
established and maintained an extensive dialogue with a full
range of interested parties.  For example, in March of 1988
EPA sponsored a Municipal Settlement Conference attended by over
100 representatives from State and local governments and
organizations: industry, environmental, and other groups; as well
as Congressional staff.  EPA sought input from all interested
parties to facilitate our efforts to develop a fair assessment of
the issues, particularly from municipal and industrial
representatives who are most directly affected by the interim
policy.  Both municipalities and private parties are affected by
this interim policy because, as mentioned above, both
municipalities and private parties handle municipal waste,
private parties generate waste streams that have similar
characteristics to municipal waste streams, and municipal and
industrial waste streams are often co-disposed at individual
sites.
     As a followup to this conference, EPA established the
Municipal Settlement Discussion Group.  The discussion group met
in June, August, and October of 1988 and was generally comprised
of the same groups and interests that participated in the March

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                                   OSWER DIRECTIVE #9834.13

conference.  All discussion group meetings were open to the

public  and a notice of each meeting was published in the Federal

Register.

     The purpose of this dialogue has been for EPA to inform the

public  about the issues that the Agency is addressing as part of

our effort to develop the Municipal Settlement Policy.  At the

same time, the Agency has sought to stimulate the public debate

about these issues by providing a public forum for the exchange

of ideas.  The conference and discussion group activities have

been conducted as an information exchange and public debate

exercise.  EPA has not requested recommendations nor attempted to
                                  •
reach a consensus among the various parties.  Minutes of all

meetings have been prepared and are available to the public upon

request.

     A  final meeting of the discussion group is expected to be

held in January 1990, before the close of the 60 day public

comment period.  The purpose of this meeting will be to discuss

the interim policy and to further facilitate public comment.  A

notice of this meeting will be published in the Federal Register.

Minutes of this meeting will be kept and made available to the

public upon request.

     B.    EPA Consideration of Competing Public Interests

     Input from the public has played an important role in EPA's

development of this interim policy.   Within the context of

CERCLA's statutory language and objectives, EPA has considered

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                                   OSWER DIRECTIVE #9834.13
the competing interests and objectives of the various parties
interested in this issue, especially municipalities and private
parties who are directly affected by the interim policy.  EPA has
developed an interim policy which the Agency believes is
appropriate, is in the interests of the public, and is fair to
both municipalities and private parties as well as one which can
be managed and implemented by EPA's Regional offices.  The
following examples highlight how EPA considered competing
interests on key issues.  The discussion below only summarizes
(and sometimes paraphrases) certain key aspects of the interim
policy; readers should refer to the interim policy itself for an
                         •
indication or clarification of how EPA will proceed.
     1.   Treatment of municipalities as owners/operators;  Some
interested parties expressed uncertainty about whether potential
CERCLA liability should apply to municipal owners/operators of
facilities where hazardous substances are present.  In addition,
there are different views about how municipal owners/operators
should be handled in the settlement process.  For example, some
municipal representatives have suggested that when potential
owner/operator liability applies that municipalities should be
given "special treatment"  (e.g., provided with an early
opportunity to meet with EPA to resolve their potential
liability).  Industry representatives have indicated that
municipal owners/operators should be handled the same as other
                                3

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                                   OSWER DIRECTIVE  #9834.13
 PRPs  and  should be  part  of the  larger settlement process that may
 involve other parties, including private parties.
      EPA's  interim  policy clarifies that municipal  owners/
 operators may be potentially liable just like private parties,
 and that  such parties will generally be notified and handled in
 the same  manner during the settlement process as private parties.
      2.   Treatment of generators/transporters of municipal
 wastes and  certain  kinds of commercial, institutional, or
 industrial  wastes;  There are different views on whether the
 generators/transporters  of municipal wastes  (e.g.,  municipal
 solid waste and sewage sludge)  (usually municipalities) should be
 notified  that they  are considered to be potentially responsible
 parties and brought into the Superfund settlement process.
 Municipalities and  some  States  do not believe it is appropriate
 to include  the generators/transporters of municipal wastes as
 potentially responsible  parties.  Industry representatives have
 generally taken the opposite view.
      EPA's  approach to this issue is as follows: when the source
 of the municipal waste is believed to come from households,
 regardless  of^whether household hazardous waste may be present,
          •vllissf
the general^policy  is to exclude such municipal wastes from the
Superfund settlement process, unless the Region obtains site-
specific information that the municipal solid waste or sewage
sludge contains a hazardous substance from a commercial,
institutional,  or industrial process or activity.

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                                   OSWER DIRECTIVE #9834.13
     The only exception to this general policy is that EPA may
consider bringing generators/transporters of municipal solid
waste that contains a hazardous substance derived only from
households into the settlement process as potentially responsible
parties if the total privately generated commercial,
institutional, and industrial waste at the site is insignificant
compared to the municipal solid waste.  EPA expects this
exception to be sparingly applied.
     When we are dealing with industrial wastes (including low-
hazardous industrial wastes), the generators/transporters of the
wastes will generally be notified as potentially responsible
parties because the source of the waste is a commercial,
institutional, or industrial process or activity.
     One question raised by the interim policy relates to how EPA
will handle trash from a commercial, institutional, or industrial
entity which is very similar to municipal solid waste that is
derived from households.  Although the source of the waste in
this situation- is not households, when the generator/transporter
shows EPA that its waste is very similar to that generated by
households and that it is not the result of a commercial,
institutional, or industrial process or activity, the
generator/transporter generally will not be notified as a
potentially responsible party by EPA and brought into the
Superfund settlement process.
                                10

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                                   OSWER DIRECTIVE  #9834.13
      In carrying  out  this  approach,  EPA is exercising  its
 enforcement  discretion  in  determining whether we will  treat
 generators/transporters as potentially responsible  parties for
 certain categories  of wastes.  EPA believes this approach is  fair
 and manageable.   For  example, this approach treats  municipalities
 and private  parties that handle the  same waste streams in the
 same  manner  (e.g.,  municipal generators/transporters of municipal
 solid waste  are treated the same as  private party generators/
 transporters of such  waste).
      This approach  also treats different waste streams in a
 logical  and  consistent  manner.  A key factor in -determining
 whether  to notify generators/transporters of municipal solid
 waste,  sewage sludge, trash from a commercial, institutional, or
 industrial entity,  or low-hazardous  industrial wastes  is tied to
 whether  a hazardous substance is present that is derived from a
 commercial,  institutional, or industrial process or activity.
      Finally, this  approach is one that can be effectively
 managed  and  implemented by EPA's Regional offices.  For example,
 based on our experiences at Superfund sites, especially municipal
 landfills, we believe that it is generally not a cost-effective
 use of our enforcement  resources to  pursue those generators/
 transporters whose only contribution at a Superfund site appears
 to have  been substances  that may have been contaminated only  with
 relatively small quantities of household hazardous  waste  (e.g.,
municipal solid waste).  The resource-intensive nature of

                               11

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                                   OSWER DIRECTIVE #9834.13
obtaining sufficient evidence to demonstrate the presence of
household hazardous waste as well as the potentially increased
transaction costs of settlement and/or litigation far outweigh
the possible benefit the Government may derive from obtaining
cleanup costs from such parties.  The Agency believes that its
enforcement resources are better spent on pursuing other
potentially responsible parties to achieve the cleanups needed to
effectively implement the Superfund program and to protect human
health and the environment.
     3.   Role of municipalities in the settlement process;
There are also different views on the appropriate treatment of
municipalities vis-a-vis private parties in the settlement
process (i.e., whether municipalities should receive "special
treatment1* because they are governmental entities).
Municipalities generally -believe they should be treated
differently than private potentially responsible parties while
industry generally believes they should not.
     EPA believes that municipalities and private parties should
generally be handled in the same manner in the settlement
process.  Handling municipalities and private parties the same
means that EPA will seek information in appropriate circumstances
from all parties, including municipalities.  This also means that
all parties who are owners/operators of facilities will generally
be notified as potentially responsible parties.
                                12

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                                   OSWER DIRECTIVE 19834.13
     Relating to municipal solid waste or sewage sludge, all
parties who are generators/transporters (either municipalities or
private parties) are generally exempt from notification unless we
obtain site-specific information that the waste contains a
hazardous substance from a commercial, institutional, or
industrial activity or process.  In instances relating to
notification as a potentially responsible party, we focus on the
nature/source of the waste, not whether the party is a
municipality or private party.
     The interim policy also handles municipalities and private
parties essentially in the same manner once they are notified as
potentially responsible parties by attempting to negotiate and
settle with such parties as one group, unless separate
settlements such as de minimis settlements pursuant to Section
122(g) of CERCLA are appropriate.  Nevertheless, EPA does
recognize that municipalities have unique characteristics as
governmental entities which EPA may take into account when
designing specific settlements (e.g., by considering delayed
payments, delayed payment schedules, or in-kind contributions
under appropriate circumstances).
Date                               Don R. Cfcay, /Assistant
                                   Administrator, Office of Solid
                                   Waste and Emergency Response
                                13

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