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.
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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
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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:
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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
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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
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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
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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,
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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
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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.
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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.
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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
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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
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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.
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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
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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
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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
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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
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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.
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9834.1
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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
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9830
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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
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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.
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