&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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                               -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

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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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                               -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.

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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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