vvEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 93-20.1-5
TITLE: RCRA/NPL Listing Policy
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE:
0 FINAL
September 10, 1986
September 10, -1986
OERR/.HSCD/DIB
D DRAFT
STATUS:
[ ] A- Pending OMB approval
{ j B- Pending AA-OSWER approval
[ ] C- For review &/or comment
[ ] D- .In development or circulating
headquarters
REFERENCE (other documents):
OSWER OSWER OSWER
fE DIRECTIVE DIRECTIVE Di
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-SEPA
United States Environmental Protection Agency
Washington. DC 20460
OSWER Directive initiation Request
Interim Duective Number
9320.1-5
Originator Information
Name of Contact Person
Lu.cv Sibold
Mail Code
WH-548E
Telephone Number
382-2454
Lead Office
OERR
D OSW
D OUST
Q OWP6
LJ AA-OSWER
Approved for Review
Signature of Office Director
Date-
Title
RCRA/NPL Listing Policy
Summary of Directive
Guidance reflecting RCRA/NPL listing policy as
promulgated in Federal Register (51 FR 21054, June 10, 1986)
Key Words: Superfund, CERCLA, Remedial Program, National
Priorities List (NPL), RCRA/NPL Eligibility Policy
Type of Directive (Manual. Policy Directive. Announcement, etc./
Status
D Draft
Final
GD New
I I Revision
Does this Directive Supersede Previous Qirective(s)? | | Yes | | No Does It Supplement Previous Oirective(s)? ( [ Yes | | No
If "Yes" to Either Question. What Directive (number, title/
Review Plan
D AA-OSWER D OUST
d] OERR D OWPS
CD OSW U Regions
D OECM
D OGC
LJ OPPE
D
Other (Specify)
This Request Meets OSWER Directives System Format
Signat
d Office Directives Officer
Date
STgnature o^OSWER Oirectiyes'Officer
Date
EPA Form 131 s? (10-85)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
SEP.IOSB6
Qff\Cฃ OF
SOLiO WASTE AND SME3GENCY Hc3?O.NSa
OSWER DIRECTIVE 9320.1-5
MEMORANDUM
-\
SUBJECT: l.RCKA/NBX Listing Policy
\ /
FROM: 'Jite-H 'f^cGlraw, Deputy Assistant Administrator
^Office of Solid Waste and Emergency Response
TO: Regional Administrators,
Regions I-X
On June 10, 1986, the Agency announced the first phase of a
new policy for listing RCRA Subtitle C facilities on the National
Priorities List (NPL) (51 FR 21057-21062 and 21109-21112). The
Agency intends to announce the complete policy in February 1987.
This memo presents interim guidance for implementing the first
phase of the new policy, and solicits information from the Regions
to assist in the development of the final policy. Specifically,
this memo:
0 Transmits the final and proposed RCRA/N.PL listing policy;
0 Provides a questionnaire for an initial screening of
potential NPL sites with respect to their RCRA status;
0 Solicits suggestions about effective policy development
and implementation from the Regional offices; and
0 Identifies an interim course of action until more
definitive guidance is available.
FINAL/PROPOSED RCRA POLICY
Background
Since the first NPL final rule, it has been the Agency's
policy to defer placing sites on the NPL that can be addressed
through RCRA Subtitle C corrective action authorities. Prior to
enactment of the Hazardous and Solid Waste Amendments of 1984
(HSWA), only releases to ground water from surface impoundments,
waste piles, land treatment areas, and landfills that received
RCRA hazardous wastes after, July 26, 1982 and' did not certify.
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closure prior to January 26, 1983 (the effective date of the RCRA
regulations requiring permits for land disposal facilities) were
subject to corrective action requirements under Subtitle C.
Since these units-were subject to the corrective action requirements
they were not eligible for listing unless they were abandoned,
lacked sufficient resources or RCRA corrective action requirements
could not be enforced.
The enactment of HSWA greatly expanded RCRA Subtitle C
corrective action authorities. For example, under section 3004(u),
hazardous waste treatment, storage and disposal facilities* seeking
RCRA permits were now required to address all releases of hazardous
constituents to any medium from solid waste management units
(SWMU's) whether active or inactive. HSWA also provided new
authorities in Section 3004(v) to address releases that have
migrated beyond the facility boundaries. In addition, section
3008(h) authorized EPA to compel corrective action or any response
necessary to protect human health or the environment when there
is or has been a release of hazardous waste at a RCRA interim
status facility.
In light of' the new authorities, on April 10, 1985, the
Agency announced in the preamble to proposed MPL Update 3, a
revised policy for listing of RCRA-related sites on the NPL.
The policy announced on June 10, 1986 evolved from this earlier
proposal.
Policy Overview
The policy statement in the June 10, 1986,- Federal Register
contains two major components: a final policy of three elements
that is presently in effect and a proposed policy consisting
of two elements. This proposed policy is not in effect now but
is under consideration for inclusion in the final, complete
policy currently scheduled for announcement in February 1987. In
addition, the Agency solicited public comments-on additional
categories .of RCRA sites that might be considered eligible for
the NPL (e.g., non-notifiers).
The final policy is generally consistent with the proposal
and with the Agency's previous RCRA listing policy. Sites not
subject to RCRA Subtitle C corrective action authorities will
* When using the term "facility", the Agency is referring to the
broadest extent"ofEPA's area of jurisdiction under Section
3004 of RCRA, i.e., the entire site that is under the control of
the owner or operator engaged in hazardous waste management.
Therefore, the term- "facility" is not limited to those portions
of the property at which RCRA hazardous waste management units
are located but extends to all contiguous property under the
owner or operator's corttrol (See the Final Codification Rule,
July 15, 1985., 50 FR 28712).
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remain eligible for the NPL. (These may include sitas at which
action can be taken pursuant to Section 7003 of RCRA..) Examples
include but are not limited to:
(1) facilities that ceased treating, storing or disposing
of hazardous wastes prior.to November 19, 1980 (the
effective date of Phase I of the RCRA regulations)
(2) facilities which need not seek permits because they
manage only materials exempted from the statutory or
regulatory definition of solid waste or hazardous waste
(e.g. facilities that handle only household waste)
(3) facilities whose only Subtitle C waste management units
are exempt from Subtitle C Parts 264 and 265 requirements
(e.g. totally enclosed treatment units)
(4) facilities that handle hazardous waste subject to
Subtitle C but who are not required to have interim
status or a final RCRA permit (e.g. generators and
transporters).
In most situations, listing of sites with releases that can be
addressed under the RCRA Subtitle C corrective action authorities
will be deferred.
Although' sites that can be addressed by RCRA Subtitle C
corrective action authorities generally will not be placed on the
NPL, in certain situations facilities subject to the corrective
action requirements may be listed if they meet all the other
listing criteria (e.g., an HRS score of 28.5 or greater). The
situations qualifying for consideration on the NPL and the reasons
why the Agency has made these facilities eligible for listing are
outlined below,
Final Policy
The final portion of the policy identifies three categories
of RCRA Subtitle C facilities that are eligible for the NPL.
Specifically they are:
8 Facilities owned by entities that are bankrupt
0 Facilities that have lost authorization to operate and
whose owner/operator has also demonstrated a probable
unwillingness to undertake corrective action
0 Facilities where a case-by-case analysis indicates that
the owners/operators appear unwilling to take corrective
action : ' .
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9320.1-5
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(1) Bankruptcy
Once an entity is in bankruptcy, the entity's' assets are
protected by the courts. In such situations, the Agency does not
have adequate assurance that funds will be available in a timely
manner for response actions. Therefore, RCRA facilities that are
bankrupt are eligible for the NPL listing.
In applying this policy component, it is necessary to document
that the facility is actually bankrupt. In general, this means
documenting that the facility has filed for bankruptcy under
Chapter 7 or 11 of the Bankruptcy Code or under State law.
ซ
(2) Loss of Authorization to Operate and Probable
Unwillingness to Undertake Corrective Action
RCRA facilities that have lost authorization to operate and
that have also demonstrated a probable unwillingness to undertake
corrective action are eligible for listing on the NPL.
Under RCRA, authorization to operate may be terminated by
any of the following four mechanisms:
0 Section 3005(c) permit denial
a Section 3005(e) termination due to failure of
owner/operator to certify compliance with ground
water and financial assurance requirements or
failure to submit Part 3 permit application
by the required statutory date
0 Termination via Section 300S(h) authority to revoke
interim status
0 Termination via permit revocation under
Section 3005(d)
In applying this policy component, EPA will have to
demonstrate that an owner/operator who has lost authorization to
operate is likely to be unwilling to carry out necessary corrective
action. To do this, the Region needs to compile a history of
violations by the facility, enforcement actions taken against
the facility or other indications of unwillingness. If no
enforcement efforts have been initiated or if no violations are
documented, then the facility cannot be listed under this policy
component. The Region should review the enforcement/compliance
history for each facility to determine whether the facility is
eligible for NPL listing.
(3) Case-by-Case Determinations of Unwillingness- ..
This, case-by-case listing component was intended to be
included as an interim palicy. It was included to address
situations where a RCRA facility has not lost authorization to ...
operate yet there is reason to believe, based on prior enforcement
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or compliance history, that the owner/operator will not perform
the necessary corrective action. Once the full criteria for
listing RCRA sites on the NPL is fully developed in the final policy,
this case-by-case-component may be withdrawn or narrowed in scope.
Until such time, the Agency will consider, for a limited number of
sites, case-by-case determinations of the unwillingness of the
owner/operator to carry out corrective action.
To determine whether this criteria applies to a particular
site, the Region will need to .compile a history of enforcement
actions that have been initiated against the facility, of violations
by the facility, or of other indications of unwillingness including
failure to take action in response to CSRCLA 106 notice letters.
If no enforcement efforts have been initiated or if no violations
are documented, it is unlikely that the facility can be listed
under this policy component.
Documentation of unwillingness to satisfy the second or third
components may include memoranda of meetings or telephone conver-
sations in which an owner/operator expressed unwillingness to
perform corrective actions. Confirmatory follow-up letters would
further strengthen the case.
Proposed Policy
EPA proposed two additional categories of sites where RCRA
authorities may not result in expeditious or adequate remedial
action. Sites that may be eligible for the NPL under the-proposed
policy are:
0 Facilities where the owner/operator has not complied
adequately with an administrative order, judicial action,
or RCRA permit condition requiring response or corrective
action.
0 Facilities where the owner/operator has not submitted
or implemented an adequate closure plan as required under
RCRA,
The Agency specifically requested comment on how it would
evaluate the adequacy of compliance with an order or permit
conditions or of a closure plan or implementation of a closure
plan.
In addition to proposing these two categories, the Agency
solicited comments on other situations that may indicate that
the owner/operator is unwilling or unable to undertake corrective
action. For example, additional categories might include non-
notifiers... ...--
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HEADQUARTERS' POLICY DEVELOPMENT SCHEDULE
The Agency has requested comment on the proposed components
of the RCRA policy and requested comment on other categories of
RCRA sites that the Agency . should consider incorporating into the
final policy. Related to this policy development is the application
of the complete, final policy (scheduled for publication in the
Federal Register for February 1987) to final and proposed NPL
sites. Accordingly, we have developed a schedule for the RCRA
policy development process which is included in Attachment A for
your reference.
In addition, we plan to provide guidance in early 1987
which elaborates on the complete, final policy. The guidance
will provide greater definition of unwillingness, non-compliance,
bankruptcy and other appropriate terms or concepts. The guidance
will also describe the internal management system for identifying
and referring RCRA sites for NPL consideration and resolving the
final disposition of a site. Interim milestones for this guidance
are also included in Attachment A.
We are planning to hold a meeting soon with some of the
Regional RCRA and CSRCLA branch chiefs to obtain their input in
the RCRA policy development process. We will distribute more
information on this as soon as we are able to schedule an
appropriate time.
REGIONAL ACTION
To support the Headquarters guidance and policy development
process as well as to help you anticipate the application of
the policy to existing and future NPL sites, we have identified a
number of items for'immediate Regional action.
(1) Evaluation of the RCRA policy
We have solicited regional participation in the workgroup
that will develop the final policy and guidance. In addition,
we specifically request that each region evaluate the final and
proposed policy relative to your current operations so that we
may better understand the impact of this policy on your program.
Your input will guide us in our upcoming policy and guidance
development. We specifically ask that you identify categories of
RCRA sites that the final or proposed RCRA policy may not effectively
address, discuss the impact that this policy may have on your
program as well as identify any other areas that might be of
particular concern to you.
Regions should not: submit comments to the public'docket..
Rather, plaase mail your evaluation to Harold J. Snyder/ (WH-548E) , .
by October.10,.1986.
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(2) Application of RCRA listing policy to proposed and final
NPL sites
The Federal-Register notice states that the Agency plans to
review the status of and apply this policy to RCRA sites that are
already listed on the final NPL. To assist us in understanding
the effect of applying this policy to proposed and final NPL
sites, we need to 1
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COMMUNITY RELATIONS
In light of the new RCRA listing policy, it is possible that
some sites that are currently addressed via CERCLA authorities
may be referred to the RCRA program for attention. Until a
specific site-by-site determination is made as to the continued
eligibility of all final and proposed NPL sites, we suggest that
the CERCLA community relations staff continue to take the lead
for community relations at these sites, especially where CERCLA
enforcement or response actions are underway. As usual, the
CERCLA and RCRA community relations staff should work closely on
this matter and coordinate with the CERCLA and RCRA program staff
on community relations activities.
Thank you for your cooperation in this RCRA/NPL listing
effort. If you have any questions, call Sylvia Lowrance at
FTS-475-3253 or Hal Snyder at FTS-475-8103. Community relations
questions should be addressed to the appropriate Headquarters
coordinator.
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Attachment A
Schedule of Milestones for RCRA/NPL Policy and
Guidance Development
Final RCRA Policy - FR notice
Distribute Summary of Public Comments 9/19/86
Regional Comments and Questionnaires to HQ 10/10/86
OWPE Prepare Draft Policy 10/10/86
Workgroup Meeting on Draft Policy ' 10/17/86
CERCLA/RCRA Regional Branch Chief's Workshop TBA
Workgroup Meeting - Incorporate Br. Ch. comments 10/31/86
Brief OD's on draft final policy 12/10/86
Brief AA on draft final policy 12/17/86
Submit final policy to Red Border review 1/12/87
Policy Signed 2/11/87
Final Guidance
Draft Guidance prepared 2/10/87
Workgroup review complete 2/25/87
Draft Guidance to AA for signature 3/3/87
Comments received on Guidance 3/31/87
Final Guidance to AA for signature 5/6/87
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ATTACHMENT B
PURPOSE OF THE QUESTIONNAIRE:
The purpose of the following questionnaire is to:
0 To determine the universe of facilities on the proposed/final NPL that may
be subject to the RCRA/NPL policy
0 To determine the effect of the eligibility categories (bankruptcy, unwill-
ingness) on the continued listing of RCRA sites
0 To gather information to be used in formulating the final RCRA/NPL policy
GENERAL INSTRUCTIONS
Please complete the following questionnaire for each final and proposed NPL site.
It is not necessary at this time to attach supporting documentation, but the
responses to the questionnaire should be 'cased on verifiable information.
SOURCES OF INFORMATION
To minimize as much as possible the resource burden to complete these forms we
have identified some sources of information that should help you answer or begin
to answer the questions. None of the data sources is impeccable therefore,
please update the response to the questionnaire based on your personnal knowledge
of the facility. It is not necessary at this time to exhaustively investigate
any of the questions. However, one of the purposes of this effort is to also
help you assess the likelihood that the facility will continue to be eligible for
the NPL. -Therefore, the more complete and accurate your findings, the better you
will be able to assess the next steps.
(1) RCRA Sources
HWCMS
" Pertinent data elements in HWCMS include:
- C1105 - RCRA permit application or permit status
- 2100 corridor in HWCMS - permit processing data elements
- 2300 corridor in HWCMS - compliance/enforcement history
0 A data dictionary describing each data element in the database is available
through the HWCMS RPO.
(?) Financial Information Sources
BANKRUPTCY MEW (enclosed)
9 'Identifies bankrupt HWCMS facilities identified by ICF and GAO studies
(not guaranteed to be exhaustive or up to date, i.e. a facility may
have emerged from Chapter 11 reorganization)
9 Update information based on personal knowledge .
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Additional informtion can be obtained through:
- PRP searches for NPL sites
- Federal bankruptcy courts
- Dun & 3racstreet's Business Inforration
(available through NEIC)
(3) CERCIA Sources
SITE SPECIFIC FJNDING REPORT (enclosed)
9 Arranged by State and by site
0 Data elements include:
~ obligations and outlays to date
- activities funded
ENFORCEMENT CASE MANAGEMENT SYSTEM (enclosed)
0 Arranged by- Region and site
0 Includes surnrary information on:
- CERCLA notice letters
- negotiations
- 3013 orders
- 106 orders
- 7003 order
- CQJ referred cases
- cases filed
- settlements
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RCRA/NPL POLICY QUESTIONNAIRE FDR INITIAL SCREEN!^
Site Name
City ' State
Facility I.D. Number
Type of Facility: Generator Transporter TSD
I. RCRA -APPLICABILITY yes no
Does :the facility have RCRA interim status?
Did the facility ever have RCRA interim status?
Does the facility have a final or post-closure
permit? If so, date issued '
Is the facility a non-notifier that has been
identified by States or EPA?
Is the facility a known or possible protective filer?
STOP HERE IF ALL ANSWERS TO QUESTIONS IN SECTION I ARE NO
II. FINANCIAL STATUS'
Is the facility owned by an entity that has filed
for bankruptcy under federal laws (Chapter 7 or 11) or
State laws?
If yes, what has it filed under?
Chapter 7 Chapter 11 Other
III. ENFORCEMENT
RCRA Status
Has the facility lost authorization to operate
via LOIS, 3005(c) permit denial, 3008(h)" IS
termination, 3005(d) permit revocation?
Has the facility's Interim Status been terminated
via another mechanism (i.e. administrative
termination)?
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-CERCLA Status
What CERCLA financed remedial or removal activities have been initiated at
the site? (RI/FS, RD/RA, O&M, forward planning, and removal; dees not include
enforcement or PA/SI activities)
Enforcement Status
YES
In general, would you characterize the facility as demon-
strating an unwillingness to undertake corrective action
based on prior State, CERCLA or RCRA actions?
If yes, please describe and cite the authorities
exercised.
Is the owner/operator a party to any enforcement action at the
site?
If not, why not?
Are any PRPs (including owner/operators) undertaking remedial studies or
. action in response to CERCLA enforcement authorities? What is the extent/type
of work that has been completed (RI/FS, etc.) and who (generators, owner/operator,
etc.) is conducting the work?
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