UNIT *»« XTES ENVIRONMENTAL W»OTECTION AGENCY
WA.MINUTON. O.C. -04*0 OSWER # 9829.0
DEC 2 3 1985
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Tranaporters involved at many Superfund aitaa have argued
that CERCLA was intended to impart liability only when the
tranaportera aelected tht facility or aite to which the hazardous
substances were delivered. Consequently, thoae tranaportera
contend that interstate common or contract carriers, who under
the authority of the Intaratate Commerce Commiaaion do not exerciae
control of the deatination of ahipmenta, are excluded from the
liability proviaion of fl07(a)(4). No judicial opinion haa been
rendered to date on the interpretation of thia provision.
Policy
As part of the responsible party searchea. Regional ataff
ahould gather and review all available information related to
tranaportera and the nature of their involvement with the facilty
or aite at which the hasardoua aubatancea are located. Thia
review ahould include all of the common aourcea of information
auch aa aite recorda and recorda from federal, state and local
regulatory agenciea. In addition, information related to the
transporters should b? obtained through S104(e) information
requeat lettera to the ovner/operatora, generatora and to the
transporters. Information requeat lettera, and any subsequent
intarviewa, ahould aeek documentation aa to the aource, volume,
nature and location of waatea tranaported. Regional staff should
alao seek to identify through this process the role of the
tranaporter in the aelection of the facility or aite.
Notice lettera informing transporters of potential liability
under CERCLA will not be issued unless and until the information
gathering process indicates that the transporter may have aelected
the afte or facility to which the hazardoua substances were
delivered. (Bowever, as indicated above, information request
lettera ahould be routinely sent to all transporters.) Issuance
of notice letters to tranaportera ia appropriate only when
information obtained indicates that the transporter may have
selected the site or facility.
Similarly, enforcement actions (whether administrative or
judicial) would be brought under flOt or 1107 only under the aame
circumstancea. . As a matter of policy, EPA will bring action only
against transporters where information is available which indieatea
that the transporter aelected the site or facility. Bowever, in
the event that information is inconclusive due to a lack of
cooperation from tranaportera in providing information, EPA may
bring action against any transporter to compel full response to
information requests.
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Transporter Liability Under RCRA
This policy is not intended to address ths potential liability
of hazardous wast* transporters under RCRA $7003. The recent
RCRA amendments explicity state that the imminent hazard provisions
of RCRA apply to past and present transporters who contributed
to the transportation of solid or hazardous waste.
For further information on this policy and its application to
particular sites, please contact Michael Kilpatrick of OHPE
(382-4835) or Reidi Hughes of OECM-Waste (382-2845).
Note on Purpose and Dees of this Memorandum
The policies and procedures set forth here, and internal
Government procedures adopted to implement these policies, are
intended as guidance to Agency and other Government employees.
They do not constitute rulemaking by the Agency, and may not be
relied on to create a substantive or procedural right or benefit
enforceable by any other person. The Government may take action
that is at variance with the policies and procedures in this
memorandum.
cc: Superfund Branch Chiefs
Superfund Enforcement Section Chiefs
David Buente, OOJ
Lisa Friedman, OCC
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