&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9320.3-02
TITLE: Instructions for Promulgating National Priorities
List Updates
APPROVAL DATE: January 18,
EFFECTIVE DATE:
ORIGINATING OFFICE:
® FINAL
D DRAFT
STATUS.
REFERENCE (other documents):
OS WER OS WER OS WER
/E DIRECTIVE DIRECTIVE D
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03/19/87 United States Environmental Protection Agency
Washington, O.C. 20460
EPA OSWER Directive Initiation Request
2. Originator Information
Name of Contact Person Mall Code Office
PARRISH , OERR/HSCD
1. Directive Number
9320.3-02
Telephone Number
382-5632
3. Title
INSTRUCTIONS FOR PROMULGATING NPL UPDATE
4. Summary of Directive (Include brief statement of purpose)
Defines procedures and Regional responsibilities
for the final rulemaking of the NPL update. (1/84,
7 PP)
i
5. Keywords
SUPERFUND, CERCLA, NATIONAL PRIORITIES LIST, NPL, NPL UPDATING
PROCEDURE
6a. Does this Directive Supercede Previous Directives)?) [ yes [~Xj NO
b. Does It Supplement Previous Directives^)? | | yes | X NO Wha
7. Draft Laval
"" A-SlgnedbyAA/DAA B • Signed by Office Director c-Rx Review
This Request Meets OSWER Directives System Format
8. Signature of Lead Office Directives Coordinator
9. Name and THIe of Approving Official
L. THOMAS
What directive (number, title)
t directive (number, title)
& Comment In Development
Date
i
Date
01/18/84
OSWER OSWER OSWER
DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAN I 8
OSWER Directive 9320.3-2
OFFICE OF
SOLID WASTE AND EMERGENCE RESPONSE
MEMORANDUM
SUBJECT: ^instructions for Promulgating the National
/ish Update
FROM: ALee M.
Assistant Administrator
TO: Regional Administrators
Regions I-X
INTRODUCTION
The first update to the National Priorities List (NPL) was
published as a proposed rule on September 8, 1983, and promul-
gation of the NPL update is scheduled for May 1984. The purpose
of this memorandum is to define procedures and the Regional
responsibilities for the final rulemaking on the first NPL
update. In addition to the final rulemaking on the first update,
we also plan to develop a proposed rule to delete sites in May.
In order to meet that deadline, you must forward your candidates
for deletion along with the required documentation by February 17,
1984. Regional responsibilities for that activity are outlined
in a draft memorandum entitled "Procedures for Deleting Sites
from the National Priorities List," which was transmitted to the
Regions for comment on December 6, 1983. You will receive final
guidance on the procedures and criteria for deleting sites shortly,
We are currently planning to publish a second update as a
proposed rule in July 1984. The Agency is evaluating various
approaches for including Federal facilities on that second update.
The Office of Solid Waste and Emergency Response will issue
guidance documents setting forth the Agency's policy on Federal
facilities and the procedures for the second update as soon as
possible.
MANAGEMENT PROCESS
As specified in the preamble to the NPL update proposal
(48 FR 40674), the Hazardous Site Control Division of the Office
of Emergency and Remedial Response (OERR) has received public
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comments on the proposed sites. Copies of the comments have
been sent to the appropriate Regional Offices. In developing a
final rule, the Agency must consider and address these comments
and prepare a comprehensive support document which will accompany
the final list.
The Headquarters support staff who conducted the quality
assurance (QA) on the NPL update sites will consolidate the
comments and develop a draft document presenting the comments
that will be addressed. The draft responses to comments will be
sent to the appropriate Regions as soon as they are available.
The QA staff will then contact the Regional NPL update
designee to schedule a Regional meeting to discuss site specific
questions with the appropriate site managers. The Region should
designate a single NPL update contact for this project. This per-
son should have sufficient authority to schedule meetings between
the contractor staff and site managers. These meetings will be
used to discuss the responses to comments, discuss any new informa-
tion on sites, and to develop revised MRS scores where appropriate.
Please designate such a contact in a memorandum to Hal Snyder,
Chief, Discovery and Investigation Branch by January 27, 1983.
After the Regional meetings, the OA staff will develop a
final version of the support document. The final document will
reflect the consensus of the Regional and QA staff. In cases
where such a consensus cannot be achieved, or where new
information has been received from Agency or State investigations
and will affect the score of the site, the Regions should notify
Scott Parrish (FTS 475-8103) and discuss the related issues. We
believe that such problems will be minimal, given that the QA
staff reviewed the scoring of every site on the proposed update.
REGIONAL RESPONSIBILITIES
Once a consensus has been reached, it will be OERR's responsi-
bility to articulate those determinations in the support document.
The Regions will be responsible for submitting to Headquarters a
number of documents reflecting new information on the proposed
sites. The specific information required is discussed below.
Sites with Revised HRS Scores
Those sites that have final scores different from the scores
used to develop the proposed NPL will require three complete copies
of the revised HRS worksheets, Documentation Record, response
status codes and narrative summaries. Attached is a computerized
listing indicating the original HRS total and pathway scores,
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and the response status codes. Blank spaces are provided for
revised scores (including pathway scores) and revised status
codes. Submit this revised list to Headquarters as specified in
the attached schedule.
The HRS worksheets and Documentation Records must support the
revised HRS total score. We must receive three copies of the
entire set of worksheets and Documentation Records even in
cases where only a single factor has been revised.
Sites without Revised Scores
In cases where the HRS scores for the final li-s.ting are
identical to the proposal, it will not be necessary to submit
new HRS worksheets or Documentation Records. However, the
response status codes and the narrative summaries for such sites
must be reviewed. If new conditions exist, the response status
codes and narrative summaries must be updated to reflect these
conditions.
Response Status Codes
Regardless of comments or score revisions, the Regions must
review the status codes (i.e., v, R, E, D) for all sites to update
that information. Changes in status codes should be reported on
the attached computer listing. The definitions for response
categories are the same as those used for the update proposal and
are presented below for your convenience. Note that two or more
categories may be appropriate for a given site (except for D) and
each site should be assigned all appropriate categories. Under
the response (R) and enforcement (E) categories, please indicate
whether these are State or Federal actions for each site because
we are considering revision of these categories to reflect that
information.
Voluntary or Negotiated Response (V). Sites are included
in this category if private parties are taking response actions
pursuant to a consent order or agreement to which EPA is a party.
Voluntary or negotiated cleanup may include actions taken pursuant
to agreements reached after enforcement action had commenced.
This category of response may include remedial investigations,
feasibility studies, and other preliminary work, as well as actual
cleanup.
Even though response actions qualify for notation in this
category only if sanctioned by a formal agreement, this is not
intended to preclude responsible parties from taking voluntary
response actions outside of such an agreement. However, in order
for the site to be deleted from the NPL, or to be noted in the
Voluntary or Negotiated Response category, EPA must still sanction
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the completed cleanup. If the remedial action is not fully
implemented or is not consistent with the NCP, the responsible
party may be subject to an enforcement action. Therefore,
responsible parties may find it in their best interest to
negotiate a consent agreement.
Federal and State Response (R). The Federal and State
Response category includes sites at which EPA or State agencies
have commenced or completed removal or remedial actions under
CERCLA, including remedial investigations and feasibility studies
(see NCP section 300 .68(f)(i)). The EPA considers the response
action to have begun when EPA has obligated funds. ':Por some of
the sites in this category, remedial investigations and feasibility
studies may be followed by EPA enforcement actions, at which
time the site status will change to "Federal or State Enforcement."
In the case of State-funded response actions not being carried
out with Federal funding, you should indicate that information
on the printout.
Federal or State Enforcement (E). This category includes
sites where the United States or the State has filed a civil
complaint or issued an administrative order. It also includes
sites at which a Federal or State court has mandated some form
of non-consensual response action following a judicial proceeding.
You should also indicate whether the action is State or Federal
lead. It may not, however, include all sites at which preliminary
enforcement activities are underway. A number of sites that
EPA is proposing to add to the NPL are the subject of enforce-
ment investigation or have been formally referred to the
Department of Justice for enforcement action. EPA's policy is
not to release information concerning a possible enforcement
action until a lawsuit has been filed. Accordingly, these
sites have not been included in the enforcement category.
Actions to be Determined (D). This category includes all
sites not listed in any other category. A wide range of
activities may be in progress for sites in this category. The
Agency may be considering a response action, or may be conducting
an enforcement investigation. EPA may have referred a case
involving a site to the Department of Justice, but no lawsuit has
yet been filed. Investigations may be underway or needed to
determine the source of a release in areas adjacent to or near
a Federal facility. Responsible parties may be undertaking
cleanup operations that are unknown to the Federal or State
government, or corrective action may not be occurring yet.
Narrative Summaries
The Regions must review and revise the narrative summaries
describing the NPL Update sites. Copies of the existing narrative
summaries will be mailed to the appropriate NPL designee once we
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receive the designation memorandum, due to Hal Snyder by
January 27, 1984. The existing information contained in the
narrative summaries describes the conditions at listing. The new
information to be provided by the Regions will describe the
status of the site at the time of promulgation (May 1984).
As you are aware, these summaries are used extensively by
the Agency and the public to describe the most current conditions
at each site. Therefore, it is essential that the information
be accurate and concise. Your revised summaries should be mailed
to Headquarters for review and editing. The edited summaries
will be returned to the Regions for final approval'and concurrence
from Enforcement personnel from the Office of Regional Counsel.
DOCKETS
The primary purpose for the NPL docket is to document the
Agency's rationale for the rulemaking and make that information
available to the public. In addition, the docket presents other
information to the public such as comments by interested persons
and summary descriptions of conditions at the sites. If EPA
gains new information about a site or changes a decision (e.g.,
revises a score), new documents such as HRS worksheets and
Documentation Record forms must be inserted into the docket to
show our rationale. Basic rules for updating the docket are
given below:
1. The Headquarters docket and the Regional docket for a
site must be identical. Any significant comments you
receive from the public must be forwarded to the
Headquarters docket.
2. Headquarters sends relevant public comments to the
Regions as soon as possible. You should include them
in the Regional docket immediately.
3. When scores are revised from those on which the
proposed rulemaking was based, the HRS worksheets and
documentation records which reflect those determinations
must be placed in the docket. However, the Regional
program offices should not directly place revised HRS
worksheets and documentation records in the docket
unless they are specifically requested to do so.
Rather, Headquarters will send those documents to the
Regional dockets approximately one week before the
final rule is promulgated. This is to ensure that the
Headquarters docket, the Regional docket, and the
scoring used to develop the final rule are identical.
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4. No documents should be removed from the docket, even if
they contain errors. Explanatory memos or notes may
be inserted to correct such errors. Again, Regions must
send a copy to the Headquarters docket.
Consultation with States During Rulemaking
State participation is certainly critical for developing the
NPL. The Regions are encouraged to consult with the States
whenever it is necessary to address technical questions that
arise as the result of public comments or any other "-new informa-
tion. In all cases the Regions are urged to solicit from the
States the best technical data available on sites included in the
proposed rulemaking. You should note that it is essential for
the Agency to document the decision-making process and any public
contacts that are relevant to that process. Any discussions
between Regional and State staff that are relevant to our site
specific determinations should be documented and placed in the
public record. Where EPA has proposed a site on its own initiative,
not based on data submitted by the State, contacts with the State
regarding the appropriateness of the listing should be discouraged,
just as contacts with potentially responsible parties are dis-
couraged. If comment is received from States in such situations
these too should be documented. Specific instructions on docu-
menting comments and consultations are given below.
Contact with Public During Rulemaking
The NPL and the updates are developed as amendments to the
National Contingency Plan, which is a Federal regulation. There-
fore, all activities related to developing and modifying the NPL
are rulemaking activities. In any discussion of the procedures
for this rulemaking and the guidance for EPA's periodic updates
of the NPL, it is important to review our policy regarding public
contacts during rulemaking. Once a proposed rulemaking has been
issued, the Agency will consider all comments in a fair and open
manner. The formal process for doing this is the comment period
announced in the proposal. The comment period ended on November 7,
1983, for the NPL Update. Contacts with commenters after the
close of the comment period, while not prohibited, should be
discouraged to the extent they relate to the proposed listings,
although commenters are free to submit late written comments.
Any Agency employee who discusses the substance of the
proposed rulemaking with a member of the public must prepare and
place in the docket a written memorandum describing the conversa-
tion. Such memoranda should contain sufficient detail to reflect
all substantive issues, facts, or data, although a verbatim
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transcript is not required. Where the contact is simply a
description of EPA's schedule or procedures, or where EPA relates
information that already is contained in the current docket, the
contact need not be recorded. If you have any questions regarding
the principles and procedures outlined above, contact Todd Gulick
of the Office of General Counsel, FTS 382-7709.
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