9854-n UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 November 13, 1987 SOLID WASTf AND fMIMQINCY MfSPONSC MEMORANDUM SUBJECT: /Revised Procedures for Planning and Implementing luff—«ite Response Actions \ I 17 V / 'TY?* & J/ FROM, lttJKmffc&**rt- Assistant Administrator TO: Regional Administrators Regions I-X With this memo I am transmitting the revised procedures for planning and implementing off-site response actions (the "off-site policy"). These procedures should be observed when a response action under the Comprehensive Environmental Response/ Compensation and Liability Act (CERCLA) or Section 7003 of the Resource Conservation and Recovery Act (RCRA) involves off-site treatment/ storage or disposal of CERCLA waste. This policy incorporates all of the mandates of CERCLA as amended by the Superfund Amendments and Reauthorization Act (SARA) and expands several of the more stringent requirements when applying them to wastes resulting from CERCLA decision documents signed/ and RCRA section 7003 actions initiated/ after the enactment of SARA. This revised policy also reinterprets the original off-site policy/ issued in May 1985, as it applies to CERCLA wastes resulting from decision documents signed/ and RCRA section 7003 actions initiated/ before the enactment of SARA. This revised policy is effective immediately upon issuance. It is considered to be an interim final policy as key elements of the policy will be incorporated in a proposed rule to be published in the Federal Register. As part of that rulemaking, the policy will be subject to public comment. Comments received during that period may cause additional revisions to the policy. ------- -2- If you have comments regarding this revised policy, pleasa contact Gene Lucero, Director, Office of Waste Programs Enforcement. cc: Waste Management Division Directors Regions I-X ------- 9834.H REVISED PROCEDURES FOR IMPLEMENTING OFF-SITE RESPONSE ACTIONS I. INTRODUCTION The off-site policy describes procedures that should be observed when a response action under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or Section 7003 of RCRA involves off-site storage, treatment or disposal of CERCLA waste. The procedures also apply to actions taken jointly under CERCLA and another statute. The purpose of the off-site policy is to avoid having CERCLA wastes contribute to present or future environmental problems by directing these wastes to facilities determined to be environmentally -ound. It is EPA's responsibility to ensure that the -criteria for governing off-site transfer of CERCLA waste result in decisions that are environmentally sensible and that reflect sound public policy. Therefore, in developing acceptability criteria, the Agency has applied environmental standards and other sound management practices to ensure that CERCLA waste will be appropriately managed. EPA issued the original off-site policy in May 1985. See "Procedures for Planning and Implementing Off-Site Response Actions", memorandum from Jack w. MeCraw to the Regional Administrators. That policy was published in the Federal Register on November 5, 1985. The 1986 amendments to CERCLA, the Superfund Amendments and Reauthorization Act (SARA), adopted EPA's policy for off-site transfer of CERCLA wastes, with some modifications. CERCLA §l21(d).(3) requires that hazardous substances, pollutants or contaminants transferred off-site for treatment, storage or disposal during a CERCLA response action be transferred to a facility operating in compliance with §§3004 and 1005 of RCRA and other applicable laws or regulations. The statute also requires that receiving units at land disposal facilities have no releases of hazardous wastes or hazardous constituents. Any releases from other units at a land disposal facility must also be controlled by a RCRA or equivalent corrective action program. While the original policy required compliance.with RCRA and other applicable laws, SARA goes beyond the original policy, primarily by prohibiting disposal at units at a land disposal facility with releases, rather than allowing the Agency to judge whether the releases constituted environmental conditions that affected the satisfactory operation of a facility. The off-site policy has been revised in light of the mandates of SARA. This revised policy also extends the SARA concepts to certain situations not specifically covered by the statute. These requirements apply to CERCLA decision documents signed, and RCRA §7003 actions taken, after enactment of SARA. Specifically, this policy covers: ------- 9834.1 -2- o Expanding SARA'S "no release" requirement to all RCRA units receiving CERCLA waste, not just units at RCRA land disposal facilities; o Expanding SARA'S release prohibition to include releases of CERCLA hazardous substances, in addition to releases of RCRA hazardous waste and hazardous constituents ; o Addressing releases from other units at RCRA treatment and storage facilities; and o Addressing oft-site transfer to non-RCRA facilities. The revised policy also reinterprets the Hay 1985 policy as it now applies to CERCLA decision documents signed, and RCRA |7003 actions taken, prior to the enactment of SARA. The revised off-site policy is effective immediately upon issuance. It is considered to be an interim policy as key elements of the policy will be incorporated in a proposed rule to be published in the Federal Reoleter. AS part of that rulemafcing, the policy will be subject to public comment. Comments received during that period may cause additional revisions to the policy. The final rule will reflect the final policy under CERCLA §121(d) (3) and EPA will issue a revised implementation policy memorandum- if necessary. II. APPL.ICiBT.Y There are. a number of variables which will determine whether and how the off-site policy applies: waste type, authority, funding source, and whether the decision document or order supporting the clean-up was signed before or after the enactment of SARA (i.e. f before or after October 17, 1986). In order to determine which elements, Of the policy apply to a specific CERCLA cleanup each factor must be considered. The first factor to consider is the type of waste to be transferred. The revised policy1 applies to the off -site treatment, storage or disposal of all CERCLA waste. CERCLA waste's include RCRA hazardous wastes and other CERCLA hazardous substances, pollutants and contaminants. RCRA hazardous wastes are either listed or defined by characteristic in 40 CFR Part 261. CERCLA hazardous substances are defined in 40 CFR 300.6. Because RCRA permits and interim status apply to specific wastes and specific storage, treatment or disposal processes, the Remedial Project Manager (RPM) .or On-Scene Coordinator - ( OS C) must determine, tnat the facility's permit or interim ------- 9834.11 -3- status authorizes receipt of the wastes that would be transported to the facility and the type of process contemplated for the wastes. Therefore, it is important that facility selection be coordinated with RCRA personnel. A CERCLA hazardous substance that is not a RCRA hazardous waste or hazardous constituent (i.e., non-RCRA waste) may be taken to a RCRA facility if it is not otherwise incompatible with the RCRA waste, even though receipt of that waste is not expressly authorized under interim status or in the permit. Non-RCRA wastes can also be managed at non-RCRA facilities. Criteria applicable to CERCLA wastes that,can be disposed of at non-Subtitle C facilities are discussed later in this revised policy. The'second factor to consider in determining whether this revised policy applies is the statutory authority for the action. This revised off-site policy applies to any remedial or removal action involving the off-site transfer of any hazardous substance, pollutant, or contaminant under any CERCLA authority or under RCRA {7003. This policy also applies to response actions taken under 1311 of the Clean water Act, except for cleanups of petroleum products. The policy also covers cleanups at Federal facilities under §120 of SARA. The third factor to assess is the source of funding. The revised policy applies to all Fund-financed response actions, whether EPA or the State is the lead agency. The*policy does not apply to State-lead enforcement actions (even at NPL sites) if no CERCLA funds are involved. It does apply to State-lead enforcement actions where EPA provides any site-specific funding through a Cooperative Agreement or Multi-Site Cooperative Agreement, even though the State may be using its own enforcement authorities to compel the cleanup. Similarly, non-NPL sites are covered by this policy only where there is an expenditure of Fund money or where the cleanup is undertaken under CERCLA authority. The final factor that affects how this revised policy applies is the date of the decision document. As noted earlier, there are two classes of actions subject to slightly different procedures governing off-site transfer: first, those actions resulting from pre-SARA decision documents or RCRA §7003 orders issued prior to October 17, 1986, are subject to the May 1985 policy as updated by this revised policy; and second, those actions resulting from post-SARA decision documents or RCRA §7003 orders issued after October 17, 1986, are subject to the requirements of SARA as interpreted and expanded by this revised policy. Although the procedures in this policy are similar for these two classes of actions, there are important differences (e.g., the requirements pertaining to ------- 9834.U -4- reloaooo from other units at a facility) that will bo highlighted throughout this document. Compliance with the revised procedures is mandatory for removal and remedial actions. However/ there is an emergency _ exemption for removals if the OSC determines that the exigencies of the situation require off-site treatment, storage or disposal without following the requirements. This exception may bo used when the OSC believes that the throat poood by the substances makes it imperative to roaovo the substances immediately and there is insufficient time to observe those procedures without endangering public health, welfare or the environment. In such cases, the OSC should consider temporary solutions (e.g., interim storage) to allow time to locate an acceptable facility. The OSC must provide a written explanation- of his or her decision to uoo thio onorgoney exemption to the Regional Administrator within 60 dayo of taking the action. In Regions in which authority to nafco removal decisions has not boon fully delegated by the Regional Administrator to the OSC, the decisions discuoood above oust bo made by the Regional official to whon ronovol authority hao boon delegated. This emergency exemption io aloo available to OSC'o taking response actions under 5311 of tho Clean Water Act. Ill . DEFINITIONS A. For tho purpoooo of thio policy, tho torn "roloaoo" io defined horo ao it io dafinod by 5101(22) of CSRCL&, which io repeated in 40 CFR 300.6 of tho NCP, and tho ROt& 03000 (h) guidance ("Interpretation of Section 3000 (h) of tho Solid Waste Disposal Act0, nonorandun fron J. ttinoton Porter and Courtney M. Price to tho -Regional Adniniotratoro , nfc Al, Doconbor 16, 1985) . To ouEoariso, a roloaoo io any spilling, looking, punping, pouring, onitting, eoptying, diocharging, injection, escaping, leaching, dunping or diopooing to tho onvironnont. Thio i&olutiao roloQooo to ourfaco voter, ground water, land ourfaco, ooil and air. A roloaoo oloo included a oubotontiol threat of a roloaoo. In dotomining whether a oubotantial throat of roloaoo oxioto, both tho ianinonco of tho throat and tho potential magnitude of tho roloaoo should bo considered. Exanploo of situations whore a oubot&ntiol throat of a roloaso may exist include a weakened or inadequately engineered dike wall at a ourfaco impoundment, or a oovoroly ruotod treatment or otorago tonic. Dn Rinirain roloaoos froa receiving unito are exempt; that io, they are not considered. to bo releases under tho off-site ------- 9834.1 1 -5- policy. Eft ainimia releases are those that do not adversely affect public health or the environment, such as releases to the air from temporary opening and closing of bungs, releases between landfill liners of 1 gallon/acre/day or less, or stack emissions from incinerators not otherwise subject to Clean Air Act permits. Releases that need to be addressed by implementing a contingency plan would not normally be considered dji ainimia releases. Federally-permitted releases, as defined by CERCLA §101(10) and 40 CFR 300.6, are also exempt. These include discharges or releases in compliance with applicable permits under RCRA, the Clean Water Act, Clean Air Act, Safe Drinking Water Act, Marine Protection, Research and Sanctuaries Act, and Atomic Energy Act or analogous State authorities. For purposes of this policy, an interim status unit in RCRA ground-water assessment monitoring (under 40 CFR 265.93) or a permitted unit in compliance monitoring (under 40 CFR 264.99) is not presumed to have a release. EPA will evaluate available information, including the data which lad to a determination of the need for assessment or compliance monitoring, data gathered during asaessment monitoring, and any other relevant data, including that gathered from applicable compliance inspections. A determination of unacceptability should be made when information will support the conclusion that there is a probable release to ground water from the receiving unit. Finding a release can happen at any time before, during or after an assessment or compliance monitoring program. On the other hand, it is not necessary to have actual sampling data to determine that there/ is a release. An inspector may find other evidence that a release has occurred, such as a broken dike or feed line at a surface impoundment. Leas obvioua indications of a release might also be adequate to make the determination. For example, EPA could have sufficient information on the contents of a land disposal unit, the design and operating characteristics of the unit, or the hydrogeology of the area in which the unit is located to conclude that there ia or has been a release to the environment. B. Receiving Unite The receiving unit is any unit that receives off-site CERCLA waste: (1) for treatment using BOAT, including any pre- treatment or storage units used prior to treatment; (2) for treatment to substantially reduce its mobility, ------- 9834.1 1 -6- toxicity or persistence in tho aboonco of a defined BOAT ; or (3) for storage or ultimate disposal of wanto not treated to tho previous criteria. Note that the acceptability criteria may vary from unit to unit, and that tho receiving unit may vary from transfer to transfer. C. Othor Unitn Other units are all other regulated units and solid waste management units (SWMU'e) at a facility that are not receiving units. Control Ind In order to bo considered o controlled release, tho roloeoo aunt bo addroocod by & RCRA corrective action prograa (incorporated in a pornit or order) or a corrective action prograa approved and enforceable under another applicable Federal or delegated State authority. E. Rnlnvant Violntionn Relevant violationo include Claoo I violationb ao defined by tho RCRA Enforcement Response Policy (Docombor 21, 1984, and subsequent revisions) at or affecting a receiving unit. A Class I violation is a significant deviation fron regulations, compliance order provisions or pornit conditions designed to: o Enouro that hazardouo waoto io dootinod for and delivered to authorized facilitioo; o Provont roloaooo of hazardouo waoto or conotituonto to tho onvironnont; o Enouro early detection of ouch roloaooo; or o Coopol corroctivo action for roloaooo. RocordJcooping and reporting roquirononto (ouch ao failure to submit tho biennial report or failure to naintain a copy of tho cloouro plan at tho facility) are generally not conoidorod to bo Class I violations. Violations affecting a receiving unit include all ground-water oonitoring violationo unlooo tho receiving unit is outside tho waste management area which tho ground-water monitoring syoton was designed to monitor. Facility-wide Class I violations (such as failure to comply with financial ------- 9834.11 -7- rosponsibility requirements , inadequate clocuro plan, inadoquato waste analysis plan, inadequate innpoction plan, otc.) that affect the receiving unit are alno relevant violations. Violationo of State or other Federal laws should also be examined for relevance, considering the significance of the requirement that is being violated; the extent of deviation from the requirement; and the potential or actual throat to human health or the environment. F. Relevant Rnlctann A ralnvant r^lnann under this revised policy includes: o - Any release or significant throat of release of a hazardous substance (defined in 40 CFR 300.6) not previously excluded (i.e., dp minlmin releases or permitted releases) at all units of o RCRA Subtitle C land disposal facility and at receiving units of a RCRA Subtitle C treatment or storage facility; and o Environnontolly significant roloaooo of any hazardous substance not previously excluded at non-receiving units at RCRA Subtitle C treatment and storage facilities and at all unito at other facilities. G. Relovant Conditionn Relevant conditions include any environmental conditions (besides a relevant violation) at a facility that pose a significant throat to public health, welfare or the environment or that othorvioo affect the satisfactory operation of the facility. . • H. Doterninationo of acceptability to receive an off-site tranofor of CERCIA vaoto will bo node by EPA or by States authorised for corrective action under §3004(u) of RCRA. Roforoncoo in this document to the "rooponsiblo Agency" refer only to EPA Rogiono or to states with this authority-. I. Rnnponnibln Geynrnmnnt Officinl The responsible government official is that person authorized in the responsible Agency to make acceptability determinations under this revised policy. ------- 9834.11 -8- IV. ACCEPTABILITY CRITERIA A. Acceptability Criteria for Wastes Gnnnratnd Undnr CERCLA waotos from actions rooulting from pro-SARA docioion documents and pro-SARA RCRA §7003 ordoro may go to a facility aooting tho following criteria: o There are no relevant violationo at or affecting the receiving unit; and o There are no relevant conditions at tho facility (i.e., other environmental conditiono that pooo a significant throat to public health, welfare or tho environment or othorwioo affect tho oatiofactory operation of tho facility). * In order to determine if thoro io o relevant violation, an appropriate compliance inopoction muct bo conducted no aoro than aix montho before tho expected date of receipt of CERCIA waoto. Thio inopoction, at a mininun, nuot addrooo oil regulated unite. Thio inopoction nay bo conducted by EPA, a stato or an authorized roprooontativo. Whon a State conducto tho inopoction, it ohould determine tho facilityo compliance otatuo. Whore a violation or potential violation conoo to EPA'o attention (e.g., through a citizen conplnint or a facility vioit by permit otaff), the Region or State io expected to investigate whether a violation occurred ao ooon ao io roaoonably poooiblo. Tho tiay 1985 policy dooo not rotor opocifieally to roloaooo. Rathor, a corrective action plan is required for relevant conditiono. Therefore, in oono caooo, a facility receiving CERCLA waotoo from an action oubjoct to a pro-SARA docioion docunont nay not nood to inotituto a progran to control roloaooo. Roloaooo will bo evaluated by tho rooponaiblo Agency to dotornino whothor ouch roloaooo conotituto rolovant conditiono undor thio policy. Tho activitioo rolatod to dotomining acceptability, providing notieo to facilitioo, regaining acceptability and inplonontation procoduroo aro diocuoood in tho "Inplocantation" ooction of thio docunont, and apply to off-oito tronoforo of waoto generated undor pro-SARA and poot-SARA docioion docunonto. ------- 9834.1 1 -9- B. Acceptability Criteria for Wastes c«n«rat«d Und«r Dae i« ion Under this revised policy, there arc three basic criteria that are used to determine the acceptability of a facility to receive off-site transfers of CERCLA waste generated under a post -SARA decision docuaent or post-SARA RCRA §7003 cleanup. The criteria are: o There must be no relevant violations at or affecting the receiving unit; o There must be QO. releases from receiving units and contamination from prior releases at receiving units must b. addressed as appropriate; and o Releases at other units must be addressed as appropriate. The last two criteria are applied somewhat differently, depending on the type of facility. These differences are described below. storage and Dispoaal Paeilities. The first criterion that applies to all Subtitle C facilities is that there can be no relevant violations at or affecting the receiving unit. As discussed earlier, this determination must be based on an inspection conducted no more than six months prior to receipt of CERCLA waste. A second element that applies to all Subtitle C facilities is that there must be no releases at receiving units. Releases from receiving units, except for de •i«i*i« releases and State- and Federally-permitted releases, must be eliminated and any prior contamination, from the release must be controlled by a corrective action permit or order under Subtitle C, as described in the next section. The final criterion that applies to all Subtitle C facilities, is that the facility must have undergone a RCRA Facility Assessment (RFA) or equivalent facility-wide investigation. This investigation addresses EPA's affirmative duty under CERCLA f!21(d)(3) to determine that there are no releases at the facility. Releases of RCRA hazardous waste or hazardous constituents and CERCLA hazardous substances are all included under the policy. While the RFA need not focus on identifying releases of hazardQus substances that are not RCRA hazardous wastes or hazardous constituents, to the extent such releases are discovered in an RFA or through other means, they will be ------- 9834.1 1 -10- considorod tho same as a roloaso of hazardouo waoto or hazardous constituents. o Additional CrJLtorJLa Applicable to RCRA Subtitle c fiflnd Disponal Facilltion. Land dispooal facilitioc aunt moot additional requirements impoood by SARA and thio policy. Tho torn "land dispooal facility" moans any RCRA facility at which a land disposal unit in located, regardless of whether tho land diopooal unit io tho receiving unit. Land disposal units include surface impoundments , landfillo, land treatment units and waste piles. As stated earlier, there muot bo no release. at or from receiving units. In addition, roloaooo fron other units at a land disposal facility must bo controlled under a corrective action program. Tho RFA will help dotornino whether there is a rolaaso. In addition, land diopooal facilities nuot have received a comprehensive ground-water monitoring evaluation (CME) or an operation and maintenance (Ofitf) inspection within tho last year. Units at RCRA Subtitle c land diopoool facilitioo receiving CERCLA waoto that io aloo RCRA nasardouo wasto nuot moot tho RCRA mininun technology roguirocanto of RCRA 5 3004 (o). Only whore a facility hao boon granted a waiver can a land diopooal unit not mooting tho aininuo technology roquirononto bo considered acceptable for of f-oito diopooal of CERCLA waoto that io" RCRA hazardouo waoto. Critnria AppiicAblo to Subtitln c Trnntw)n.|i and Tho criterion for controlling roloaooo fron othor unite dooo not apply to all roloaooo at traatnont and otorago facilitioo, ao it dooo at land disposal facilitioo. Roloaooo fron othor unite at troatnont and otorago faeilitioo nuot bo evaluated for onvironnantal oignif icanoo and their effect on tho satisfactory operation of tho facility. If dotominod by tho rooponoible Agency to bo onviroraoantally oignif icant, roloaooo nuct bo controlled by a eorroctivo action progron under on applicable authority. Roloasoo fron othor unite at troatcont and otorago facilitioo dotominod not to bo onvironcontnlly significant do not af foot tho aecoptability of tho facility for rocoipt of CERCLA vaoto. 2. Critnrla Applicable! to RCRA Jgnrrvit-bv-Ruln Pneilitinn. Thio revised policy io aloo applicable to facilitioo subject to tho RCRA pcrmit-by-rulo provioiono in 40 CFR 270.60. Thooo include ocean diopooal bargoo or voooolo, injection wolls and publicly owned troatnont worko (POTWo) . Pomit-by-rulc facilitioo receiving RCRA hazardouo waoto nuot have a RCRA permit or RCRA intorin otatuo. RCRA pomit-by-rulo facilitioo must aloo receive an inspection for conplionco with applicable RCRA permit or inter im otatuo -roquiromonto . In addition, those ------- 9834J1 -ii- facilities (and other non-RCRA facilities) should be inspected by the appropriate inspectors for other applicable laws. In general, except for POTWs (discussed below), these facilities will be subject to the sane requirements as RCRA treatment and storage facilities. That is, there can be no releases of hazardous waste, hazardous constituents or hazardous substances from receiving units. There also can be no relevant violations at or affecting the receiving unit, as confined by an inspection conducted no more than six months prior to the receipt of CERCIA waste. Releases from other units determined by the responsible Agency to be environmentally significant must be controlled by an enforceable agreement under the applicable authority. Criteria for discharge of wastewater from CERCIA sites to POTWs can be found in a memorandum titled, "Discharge of wastewater from CERCIA Sites into POTWs,11 dated April 15, 1986. That memorandum requires an evaluation during the RX/FS process for the CERCIA site to consider such points as: o the quantity and quality of the CZRCLA wastewater and its compatibility with the POTW; o the ability of the POTW to ensure compliance with applicable pretreatment standards; o the POTWs record of compliance with its NPDES permit; and o the potential for ground-water contamination from transport to or impoundment of CERCIA wastewater at the POTW. - Based oii a consideration of these and other points listed in the memorandum, the POTW may be deemed appropriate or inappropriate for receipt of CERCIA waste. 3. erltajria Anpiie^bie to Nqn.-fiu.b.title C Facilities. In some instances, it may be appropriate to use a non-Subtitle C facility for off -site transfer: for example, PCB disposal is regulated under the Toxic Substances Control Act (TS'CA) ; nonhazardous waste disposal is regulated under Subtitle D of RCRA and applicable state laws; and disposal of radionuclides is regulated under the Atomic Energy Act. At such facilities, all releases are treated in the same manner as releases from other units at Subtitle C treatment and storage facilities. That is, the responsible Agency should mafce a determination as to whether the release is environmentally significant and, if so, the release should be controlled by a corrective action program under the applicable Federal or State authority. ------- 9834.1 1 -12- Requirements for the disposal of PCBs are established in 40 CFR 761.60. Generally, these regulations require that whenever disposal of PCBs is undertaken, they must be incinerated, unless the concentrations are less than 50 ppm. If the concentrations are between 50 and 500 ppm, the rule provides for certain exceptions that provide alternatives to the incineration requirements. The principal alternative is disposal in a TSCA-permitted landfill for PCBs. If a TSCA landfill is the receiving unit for PCBs, then that facility is subject to the sane criteria applicable if a RCRA land disposal unit is the receiving unit; i.e., no relevant violations, no releases at the receiving unit and controlled releases at other units. PCBs at levels less than 50 ppm nay be transported to acceptable Subtitle a facilities as discussed previously. y . A. Determining Acceptability determinations under the off-site policy vill be made by EPA or by States authorized for corrective action under §3004(u) of RCRA. Where States have such authority, the State may make acceptability determinations for facilities in the State in consultation with EPA. Regardless of a State's authorization status, the Region and States should establish, in the Superfund •Memorandum of Agreement, mechanisms to ensure timely exchange of information, notification of facilities and coordination of activities related to the acceptability of facilities and potential selection of facilities for off-site transfer. The Regions and States also need to establish or enhance coordination mechanisms with their respective RCRA program staffs in order to ensure timely receipt of information on inspections, violations and releases. These agreements can be embodied in State authorization Memoranda of Agreement, State grant agreements, or State-EPA enforcement agreements. The responsible government official in the Region or State in which a hazardous waste facility is located will determine whether the facility has relevant violations or releases which may preclude its use for off -site transfer of CZRCLA wastes. Each Region and State should have a designated off-site coordinator responsible for ensuring effective communication between CERCLA response program staff and RCRA enforcement staff within the Regional Offices, with States, and with other Regions and States. The off-site coordinator should maintain a file of all information on the compliance and release status of each commercial facility in the Region or State. This information should be updated basad on the results of State- or ------- 9834.11 -13- EPA-conducted compliance inspections or other information on these facilities. CERCLA response prograa staff should identify potential off-site facilities early in the removal action or the remedial design process and check with the appropriate Regional and/or State off-site coordinator(s) regarding the acceptability status of the facilities. If one or more facilities is identified that has not received an inspection within the last six months, the Regional off-site coordinator(s) should arrange to have such inspection(s) conducted within a timeframe dictated by the project schedule. The CERCLA REM/FIT contractor may conduct the inspection under the direction of the Deputy Project officer. If contractor personnel are used, the Regi«n should ensure that such personnel are adequately trained to conduct the inspections. Responsible Agencies should base their acceptability determinations on an evaluation of a facility's compliance status and, as appropriate, whether the facility has releases or other environmental conditions that affect the satisfactory operation of the.facility. States not authorized for HSWA corrective action may assist EPA in making the acceptability determination by determining a facility's compliance status (based on a state inspection) and providing this information to EPA. Regions and States should use the following types of information to make acceptability determinations: O State- or EPA-eomiueted inspections. EPA will continue to assign high priority to conducting inspections at commercial land disposal, treatment and storage facilities. Facilities designated to receive CERCZA waste must be inspected within six months of the planned receipt of the waste. In addition, -land disposal facilities must have received a comprehensive ground-water monitoring inspection (CMS) or an operation and maintenance (Ottf) inspection within the last year, in accordance with the timeframes specified in the RCRA Implementation Plan (RIP). under this policy, a RCRA Subtitle C facility must have had an RFA or equivalent facility-wide investigation. The RFA or its equivalent must be designed to identify existing and potential releases of hazardous waste and hazardous constituents from solid waste management units at the facility. o other data soureem. Other documents -such as the facility's permit application, permit, Ground Water Task Force report, ground-water monitoring data or ------- 9834.1 1 -14- ground-wator asoossmont report can contain information on violations, roloaooo or other conditiono. Relevant information froa thooo docuaonto should alpo bo uood to dotoraino a facility's acceptability to rocoivo waste under the off-oito policy. B . Mot ieo Praeodugnn EPA oxpecto that Rogiono and Statoo will toko timely and appropriate enforcement action on determining that a violation has occurred. Whore a responsible Agency performs an inspection that identifies a rnlovant violation at a coanorcial facility likely to accept CERCLA wastes, within five working days of the violation determination, the responsible Agency must provide written notice to the facility of the violation and the effects of applying this policy. Statoo not authorized for HSWA corrective action should inform EPA of the violation so that EPA can notify the facility of the of foot of tho violation under this policy. (Soo RCRA Enforcement Response Policy for a discussion of appropriate onforcooont rooponooo and tinofromoo for Class I violations.) When tho responsible Agency dotorninoo that o relevant roloaso has occurred, or that relevant conditions oatiot, tho responsible Agency nust notify tho facility in writing within five working days of that determination. Tho notice nust also state tho effect of tho determination under this policy. A copy of any notice nudt also bo provided to tho non-issuing Region or Stato in which tho facility is located, statos not authorized for HSHA corrective action should provide EPA with infornation on roloaooo so that EPA can dotomino whether a relevant roloooo hoc occurred. Private parties conducting a response action subject to this policy will need to obtain infornation on tho acceptability of connorcial facilitioo. Tho responsible Agency must rocpasta with roopoct to both pro-SARA and post-SARA waotoo. in addition, tho responsible Agency should indicate whether tho facility is currently undergoing a roviow of acceptability and tho date tho roviow is expected to bo completed. Ho onforcooont sensitive or prodocisional information should bo released. A facility nay submit a bid for receipt of CERCLA waste during a period of unnccopt ability. However, a facility must bo acceptable in ordor to bo awarded a contract for rocoipt of CERCLA wasto. Scoon an.fl EpntnntfLQf flfrfl Notion. Tho responsible Agency must send tho notice to tho facility ownor/ operator by certified and firot-claos mail, return rocoipt requested . Tho ------- 9834.1 1 -15- cortifiod notice, if not acknowledged by tho receipt return card, will bo considered to have boon received by tho addrooooo if proporly oont by first-claoo noil to tho laot addreco known to tho rooponoiblo Agency. Tho notice ohould contain tho following: o A finding that tho facility may havo conditiono that render it unacceptable for receipt of off-oito waoto, baaed upon available information fron an RFA, an inspection, or other date oourcoo; o A description of tho opocific octo, onioniono or conditiono that fora tho baoio of tho findingo; o Notice that tho facility owner/operator hao tho - opportunity to roquoot an infernal conference with tho rooponoiblo govornnont official to diocuoo tho baoin for tho facility'o unoccoptobility determination under thio roviood policy, provided that ouch o roquoot io node within 10 calendar dayo froB tho data of tho notice. Tho owner/operator nay oubnit written connonto within 30 calendar dayo fron tho date of tho notice in liou of holding tho conforonco. o Notice that failure to roquoot an infernal Booting or submit written connonto will rooult in no further consideration of tho determination by the rooponoiblo Agency during tho 60 calendar dayo after ioouanco of tho notico. Tho rooponoiblo Agency will coaoo any tranoport of CERCIA waoto to tho facility on tho 60th calendar day oftor ioouanco of tho notico. o Notico that tho otmor/operator nay roquoot, within 10 calendar dayo of hearing fron tho rooponoiblo govornnont official aftor tho infernal conforonco or tho oubnittal of written connonto, a roconoidorotion of tho dotomination by tho Regional Adniniotrator or appropriate state official. Tho Regional Adniniotrator or State official nay agree to review tho determination at hio or her diocrotion; and o Notico that ouch a review by tho Regional Adniniotrctor or appropriate State official, if agreed to, will bo conducted within €0 calendar dayo of tho initial notico, if poooiblo, but that tho review will not otay tho determination. Tho facility may continue to rocoivo CERCLA waoto for 60 calendar dayo aftor*ioouanco of tho initial notice. Ac indicated above, facility ownoro or oporotoro nay roquoot an informal conforonco with tho rooponoiblo government official ------- within 10 calendar' days from the date of issuance of the notice, to discuss the basis for a violation or release determination and its relevance to the facility's acceptability to receive CERCLA wastes. Any such meeting should take place within 30 calendar days of the date the initial notice is issued. If unacceptability is based on a State inspection or enforcement action, a representative of the State should attend the meeting. If the state does not attend, EPA will notify the State of the outcome of the meeting. The ovner/opeator may submit written comments within 30 calendar days from the date of the notice in lieu of holding the conference. If the responsible Agency does not find that the information submitted at the informal conference or in comments is sufficient to support a finding of acceptability to receive CE"CLA wastes, it should so inform the facility orally or in writing. within 10 calendar days of hearing from the responsible government official after the informal conference or the submittal of written comments, the facility owner or operator may request a reconsideration of the determination by the Regional Administrator or appropriate State official. The Regional Administrator or appropriate state official may use his or her discretion in deciding whether to conduct a review of the determination. Such a review, if granted, should be conducted within the 60 day period (originating with the notice) to the extent possible. The review will not stay the determination. The RPM, OSC or equivalent site manager must stop transfer of waste to a facility on the 60th calendar day after issuance of a notice. The facility then remains unacceptable until such time as the responsible Agency notifies the owner or.operator otherwise. The off-site coordinator and the OSC/RFM should . maintain close coordination throughout the 60-day period. In limited cases, the responsible Agency may use its discretion to extend the 60 day period if it requires more time to review a submission. The facility should be notified of any extension, and it remains acceptable during any extension. The responsible Agency may also use its discretion to determine that a facility's unacceptability is immediately effective upon receipt of a notice to that effect. This may occur in situations such as, but not limited to, emergencies (e.g., fire or explosion) or egregious violations (e.g., criminal violations or chronic recalcitrance) or other situations that render the facility incapable of safely handling CERCLA waste. Implementation of this notice provision does not relieve the Regions or states from taking appropriate enforcement action under RCRA or CERCLA. ------- 9834.1 -17- C. Precodurnn for Facilitinn with Qutntandinq^UnaeenDtabil^y Under the original May 1985 off-oito policy, focilitioo determined to bo unaccoptablo to rocoivo CERCLA wootoo woro provided with written notice and woro generally afforded informal opportunities) to connont on the determination (the latter atop wao not required by the policy) . Although the Agency boliovoc that thooo otopo roprooontod odoquato procedural oofoguardo for facilitioo ooofeing to rocoivo CERCLA waotoo, EPA hao decided to provide on additional opportunity for review, in light of thio roviood policy, for focilitioo with unacceptable ity determination already jn place on the affective date of the roviood policy. Any ouch facility that wiohoo to noot with the rooponoiblo Agency to diocuoo the banio for a violation or roloooe determination and itc relevance to the facility 'o ability to rocoivo CERCLA waotoo, may roquoot an infernal conference with or submit written commonto to the rooponoiblo Agency at any point up to the 60th day after tho publication of tho propoood rule on tho off-oito policy in tho gndnml Bnginfcnr. such a mooting should take place within 30 calendar dayo of tho roquoot. If tho rooponoiblo govornnont Agency dooo not find tho information prooontod to bo oufficiont to oupport a finding of acceptability to rocoivo CERCLA waotoo, than it ohould inform tho facility orally or in writing that tho uneccoptability determination will continue to bo in force. Tho facility nay, within 10 calendar dayo of hearing f ron the rooponoiblo govornnont official after tho infernal conference or oubnittal of written coononto, petition tho EPA Regional Adniniotrator or appropriate State official for roconcidoration. Tho Regional Adniniotrator or State official may uoo hio or her diocrotion in deciding whether to grant roconoidoration. Thooo proccduroo for review of unaccoptability dotoroiaationo that woro already in place on tho effective date of thio roviood policy will not act to otay tho of foot of tho underlying unaccoptability dotominationo during tho period of review. D . An unaccoptablo facility can bo roconoidorod for managoDont of CERCLA waotoo whenever tho rooponoiblo Agency findo that tho facility nooto tho criteria doocribod in tho "Acceptability Criteria" ooction of thio policy. For tho purpoooo of thio policy, rolooooo will bo conoidorod controlled upon ioouanco of an- ordor or pornit that ------- 9830 -18- initiates and requires completion of on* or nor* of the following: a facility-wide RCRA Facility Investigation (RFI); a Corrective Measures Study (CMS); or Corrective Measures Implementation (CMZ). Th« facility must comply with the permit or order to ramain acceptable to receive CERCIA waste. At the completion of any such phase of the corrective action process, the responsible Agency should again review the facility for acceptability under the off-site policy using the criteria listed in this document, and as necessary and appropriate, make new acceptability determinations, and issue additional orders or modify permit conditions to control identified releases. Releases that require a determination of environmental significance will be considered controlled upon issuance of an order or permit to conduct an RFX, CMS or CMZ, or upon completion or an RFI which concludes that the release is not environmentally significant. Again, the facility must comply with the permit or order to remain acceptable to receive CERCIA waste. If the facility is determined to be unacceptable as a result of relevant violations at or affecting the receiving unit, the state (if it made the initial determination) or EPA must determine that the receiving unit is in full physical compliance with all applicable requirements. Where a State not authorized for HSWA corrective action makes this determination, it should notify EPA immediately of the facility's return to compliance, so that the Agency can expeditiously inform the facility that it is once again acceptable to receive CERCIA wastes. * The responsible Agency will notify the facility of its return to acceptability by certified and first-class mail,. return receipt requested. E. Implementation Procedures All remedial decision documents must discuss compliance with this policy for alternatives involving off-site management of CZRCLA wastes. Decision documents for removal actions also should include such a discussion. Provisions requiring compliance with this policy should be\ included in all contracts for response action. Cooperative Agreements with States undertaking Superfund response actions, and enforcement agreements. . For ongoing projects, these provisions will be implemented as follows, taking into consideration the differences in applicable requirements for pre- and post-SARA decision documents: o Ri/FS! The Regions shall immediately notify Agency contractors and Statss that alternatives for off-site ------- management of wastes must be evaluated against the provisions of this policy. o Ranedial Design! The Regions shall immediately notify Agency contractors, the States, and ths U.S. Army Corps of Engineers that all remedies that include off-site disposal of CERCLA waste must comply with the provisions of this policy. o Remedial Action: The Regions shall immediately assess the status of compliance, releases and other environmental conditions at facilities receiving CERCLA waste from ongoing projects. If a facility is founo not to be acceptable, the responsible Agency should notify the facility of its unacceptability. o Enforcement: Cleanups by responsible parties under enforcement actions currently under negotiation and all future actions must comply with this policy. Existing agreements need not be amended. However, EPA reserves the right to apply these procedures to existing agreements, to the extent it is consistent with the release and reopener clauses in the settlement.agreement. If the response action is proceeding under a Federal lead, the Regions should work with the Corps of Engineers or EPA Contracts Officer to negotiate a contracts modification to an existing contract, if necessary. Zf the response action is proceeding under a State lead, the Regions should amend the Cooperative Agreement. ------- |