&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 ------- 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 ------- 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 ------- -2- 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, ------- -3- 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 ------- -4- 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 ------- -5- 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. ------- -6- 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 ------- -7- 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. ------- |