Attachment XVI
Procedures for Planning and Implement! ncj
Off-Site Response Actions under CERCLA
5/6/85
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UNITED STATES ENVIRONMENTAL PROTECTION
WASHINGTON. D.C. 20460
Mff 6B85 °Fnc£CF
SOLID WASTE A\D EMEPGf^C
MEMORANDUM
SUBJECT: Procedures for Planning and Implementing Off-site
Response Act'i'pns
l^ikj/- ':/' * //--<
FROM: ,1/ack V. MaGraw'
Acting Assistant Administrator
v/
TO: Regional Administrators
Regions I-X
This memorandum addresses procedures that must be observed
when a response action involving off-site storage, treatment or
disposal of hazardous substances is selected under the Compre-
hensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA), and the Resource Conservation and Recovery Act
(RCRA). It prohibits use of 'a RCRA facility for off-site manage-
ment of Superfund hazardous substances if it has significant
RCRA violations^' or other environmental conditions that affect
the satisfactory operation of the facility. It also addresses
requirements for analyzing and selecting response actions that
involve permanent methods of managing hazardous substances.
In November of 1984, amendments to the Resource Conservation
and Recovery Act were enacted. These amendments impose new
requirements for the safe management of hazardous wastes. In
the case of land disposal facilities, the amendments require
that certain types of units (new, replacement and lateral exten-
sions) be double lined by May 9, 1985. The amendments impose
technical requirements to ensure that when land disposal facilities
are used they are used safely.
EPA intends to follow the direction established by Congress
in the RCRA amendments when undertaking on-site response
A signi fi cant violation includes a Class I violation as defined
by the RCRA Enforcement Response Policy (December 21, 1984).
This policy defines a Class I violation as a violation that
results in a release or a serious threat of release of hazardous
waste into the environment, or involves the failure to assure
that ground water will be protected, that proper closure and
post closure activities will be undertaken, or that hazardous
wastes will be destined for and delivered to RCRA permitted or
interim status facilities. The policy contains a list of
examples of violations which are Class I violations. Regions
should recognize that violations other than Class I violations
may be significant for purposes of these procedures, depending
on the situation at the facility.
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ind when response actions involve off-site management of hazardous
iubstances. This memorandum details how the Agency plans to
ichieve these goals.
Section I of this memorandum discusses background issues.
Section II A discusses the need to consider treatment, recycling
and reuse before off-site land disposal is used. Section II B
details procedures that must be followed in selecting any off-site
facility for management of hazardous substances. This section
also discusses the criteria to be used in making the selection.
For facilities in assessment monitoring, this part states that
conditions which lead to and result from being in assessment
monitoring may constitute conditions that render the facility
unsuitable for disposal of hazardous substances. Therefore,
when a facility is in assessment, the conditions which lead to
the required assessment, and any monitoring data, must be evalu-
ate-d to determine if the facility poses such conditions. .If so,
the facility may not be used unless the owner or operator commits
to correct the problems and the unit to be used for disposal
poses no problems.
Section III discusses RCRA manifest requirements. Section IV
discusses PCB disposal requirements. Finally, Section V details
how this policy will be implemented. Attachment A is a chart
summarizing the policy on use of off-site RCRA facilities. Th.i s
chart should be used in conjunction with the policy document, not
in lieu of i t .
These procedures are applicable to all response and enforce-
ment actions taken pursuant to CERCLA and section 7003 of RCRA.
This memorandum replaces guidance entitled "Requirements for
Selecting an Off-Site Option in a Superfund Response Action",
dated January 28, 1983. This policy is an interim one that the
Agency intends to publish as a notice in the Federal Register
in order to receive public comment on its provisions. After
reviewing these comments EPA will determine whether revisions
are necessary.
These revisions strengthen previous requirements in several
ways :
0 Coverage - This memorandum extends requirements to
enforcement actions under §106 of CERCLA and 57003.of RCRA,
and expands requirements for removal actions.
" Use of Treatment - These procedures require consideration
of treatment, recycling or reuse for all response and
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enforceraent actions, to foster the use of mo.e p^rma..ent
solutions, and, in the case of remedial actions, where
cost-effective. The Agency is not certain whether
sufficient capacity is available at this time to use
treatment in all cases where it is feasible. As more
information on capacity becomes available, the Agency
will re-examine requirements for treatment to determine
whether they can be strengthened. The previous procedures
'did not address use of treatment.
e Requirements for a treatment, storage or disposal facility
Previous guidance required inspection within 12 months
before contract award for storage, treatment or disposal.
The revisions require inspection within six months of
actual storage, treatment or disposal. It also stated
that if a facility had deficiences that resulted in unsound
treatment, storage or disposal practices it should not be
used. The guidance also required RCRA violations that
adversely affected facility performance to be corrected
prior to contract award. Under the revisions, a facility
that has significant RCRA violations or other environmental
conditions that affect its satisfactory operation may not
be used unless certain conditions are met. First, there
must be a compliance agreement in place to correct all
deficiencies at the facility; second, the unit that is
used must not cause or contribute to significant problems
at the facility. This provision recognizes that in some
situations it is infeasible to complete correction of all
violations.prior to using a facility (for example, it may
•take several years before pumping and treating of ground-
water is completed) and that there may be a unit at such
a facility that is sound.
0 Land Disposal Facilities - The 1984 RCRA amendments impose
new requirements on land disposal facilities. When use
of such facilities is contemplated, the policy requires that
the facility meet these minimum technical requirements.
I. BACKGROUND
Facilities that are not in compliance with RCRA requirements
may be unacceptable to use for treatment, storage or disposal of
hazardous substances from response actions. Facilities used for
management of substances in connection with response actions
should not pose a significant threat to public health, welfare or
the envi ronment.
CERCLA contains two references to off-site management of
hazardous substances. First, CERCLA section 104(c) requires, as
a condition of Fund-financed remedial response, that the State
assure the availability of an acceptable facility in compliance
with the requirements of subtitle C of RCRA for any off-site
management of hazardous substances. Second, where remedial
measures include off-site storage, treatment, destruction or
secure disposition, the statute also requires such measures to
be more cost-effective than other remedial measures, create new
disposal capacity in compliance with Subtitle C of RCRA or be
necessary to protect public health, welfare or the environment
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from a present or potential risk which may be created by further
exposure to substances. Section 300.65 (b)(6) of the National
Contingency Plan (40 CFR 300) states that when off-site action is
taken in connection with a removal action the facility used for
off-site management oust be in compliance with Subtitle C of
RCRA. This memorandum establishes procedures for implementing
these CERCLA and NCP provisions. '
These procedures apply to all removal, remedial, and enforce-
ment actions taken pursuant to CERCLA and section 7003 of RCRA.
Any other parties undertaking cleanup under other authorities
are urged to comply with these procedures. In the case of
Superfund-financed removal actions or enforcement actions taken
as a removal action in response to an immediate and significant
threat, compliance with these procedures is mandatory unless the
On-Scene Coordinator (OSC) determines that the exigencies of the
situation require off-site treatment, storage or disposal without
following the requirements. This exception may be used in cases
where the OSC believes that the immediacy of the threat posed .by
the substances makes it imperative to remove the substances and
there is insufficient time to observe these procedures without
endangering public health, welfare or the environment. In such
cases, the OSC should consider, to the extent possible, temporary
solutions (e.g., interim storage) in order that the feasibility
of using treatment can be evaluated prior to a decision to use
land disposal. Also, in such cases, the OSC must provide a
written explanation of his decision to the Regional Administrator.
This explanation should be provided within 60 days of taking
the action. In Regions in which authority to make removal deci-
sions has not been fully delegated by the Regional Administrator,
the decisions discussed above must be made by the Regional official
that is delegated removal decision making authority.
II. PROCEDURES FOR SELECTING HAZARDOUS WASTE MANAGEMENT FACILITIES
This section discusses in detail the requirements Regions
must follow in assessing and selecting an off-site RCRA facility
for management of Superfund hazardous substances. Part A requires
consideration of treatment, recycling or reuse for on-site and
off-site actions in order to foster the use of more permanent
methods of managing hazardous substances. These policies are
consistent with directions taken by Congress in the 1984 amend-
ments to the Resource Conservation and Recovery Act. Furthermore,
Part B of this section establishes procedures Regions must use
in selecting an off-site RCRA facility for management of hazardous
substances. Where off-site land disposal must be used, this Part
requires that disposal facilities be in compliance with the appli-
cable technical requirements of RCRA.
A. Treatment
It is EPA's policy to pursue response actions that use
treatment, reuse or recycling over land disposal to the greatest
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extent practicable, consistent with CERCLA requirements for
cost-effective remedial actions. EPA requires that such alterna-
tives be considered for all Fund-financed and private party
removal and remedial actions. For Fund-financed removals or
enforced actions in response to immediate and significant threats,
treatment, reuse or recycling must be considered, unless the OSC
determines that treatment, reuse or recycling methods are not
reasonably available considering the exigencies of the situation,
or they pose a significant environmental hazard.
When developing remedial alternatives, treatment, reuse or
recycling must be considered. Such alternatives should not be
screened out on the basis of cost alone. Section 300.68(h)(l) of
the NCP allows rejection of alternatives during the screening
stage based on cost, only when the cost of the alternative far
exceeds the cost of others (e.g., by an order of magnitude) and
does not provide substantially greater public health and environ-
mental benefi ts .
Detailed analysis of these alternatives should include
consideration of long-term effectiveness of treatment and compara-
tive long and short term costs of treatment as compared to other
remedial alternatives. Finally, when recommending and selecting
the appropriate remedial action, treatment, reuse or recycling
may be found more protective of public health and the environment
than land disposal. Such alternatives may be recommended as the
appropriate remedial action where the detailed analysis of
alternatives shows that the alternative is more cost-effective
than others in minimizing the damage to public health, welfare
or the environment. During the next six months, EPA will be
developing additional guidelines for evaluating the comparative
long-term costs of treatment and land disposal.
At this time, the Agency does not know the current and
projected treatment capacity available, nor the needs or capacity
that will be required for Superfund actions in the future. Over
the next several months, the Agency plans to undertake a study
of available treatment and interim storage capacity and needs.
Once completed, this analysis will provide information on treat-
ment facilities currently operating for Regions to use. Additional
information on capacity will be provided at a later date through
a more comprehensive capacity survey being undertaken in support
of the implementation of the 1984 RCRA amendments.
B. Requirements for selecting storage, treatment or disposal
facilities
Selection of an appropriate facility for off-site management
of hazardous substances requires that a judgment be made as
to the overall acceptability of the facility to receive the
substances and the acceptability of the unit that will receive
the hazardous substances. In making this judgment the following
steps must be observed:
1. The owner or operator of any hazardous waste management
facility under consideration for off-site storage, treatment or
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actions under CERCLA or section 7003 of RCRA must have an applic-
able RCRA permit or interim status.2
2. A RCRA compliance inspection must be performed at any
hazardous waste management facility before it can receive hazardous
substances from a response action. This inspection must assess
whether there are any significant violations or other environmental
conditions' that affect the satisfactory operation of the facility.
The RCRA compliance inspection must have taken place not more than
six months prior to the storage, treatment or disposal of the
hazardous substances from a response action. If the inspection
has not taken place or is not scheduled, REM/FIT contractor
personnel may conduct the inspection under the direction of the
Deputy Project Officer, working in cooperation with RCRA Regional
personnel. If Regions use contractor personnel, the Region should
ensure that such personnel are adequately trained to conduct
inspections. Further guidance on conducting inspections when a
facility is being considered for management of hazardous substances
will be issued in the near future. The FY 85 and FY 86 RCRA Imple-
mentation Plans establish compliance monitoring and enforcement
targets. For FY 85 the guidance requires Comprehensive Ground-
Water Monitoring Evaluations (CGMEs) at one third of the ground
water monitoring facilities. Top priorities for this type of
inspection are all facilities receiving wastes from Superfund
sites.
In States with Phase I or II interim authorization or final
authorization,.the inspection should -b'e conducted -in accordance
with State 'regulations or permit conditions. "EPA Regions
should always involve States when undertaking an inspection
at a RCRA facility that is likely to accept Superfund wastes.
Regions must use the results from the inspection, along
with other information, to determine whether the facility is an
acceptable one.
Both permitsand interim status apply to specific wastes and
specific storage, treatment or disposal processes. The Remedial
Project Manager (RPM) or OSC must determine that the facility's
permit or interim status includes the wastes that would be
transported to the facility and the type of process for which
wastes are being taken to the facility. Because of these
concerns, it is important that facility selection be coordinated
with RCRA personnel. However, not all CERCLA substances are
hazardous wastes under RCRA. Therefore, it is possible that a
particular permit may not cover a hazardous substance that may
be taken to the RCRA facility if it is not a hazardous waste.
Moreover, in some situations a hazardous substance under CERCLA
may trigger disposal requirements under other laws (for example,
PCBs and some radioactive substances). In such cases the
applicable requirements of these other laws must be observed.
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3. It is EPA's policy to minimize the use of land disposal in
accordance with the direction taken by Congress in amending RCRA.
Where land disposal is used, these amendments establish new tech-
nical standards for land disposal facilities. New disposal units,
lateral expansions and replacement units (defined as of November 8,
1984) of interim status landfills and surface impoundments oust
have at least two liners and a leachate detection, collection
and removal system above (in the case of landfills) and between
the liners, if they receive wastes after May 8, 1985. All Fund-
financed and enforced response actions (removal and remedial)
involving the off-site disposal of hazardous substances must involve
use of disposal facilities that are in compliance with applicable
RCRA minimum technical reqiurement s . This means that units first
receiving wastes after November 8, 1984 cannot receive wastes
after May 8, 1985 if not double lined. The RCRA statute does
allow continued use of existing units after that date. In consider-
ing whether to use an existing unit that does not meet the double
liner requirements, the Agency will consider the toxicity, persis-
tence and mobility of the hazardous substances and the ne.ed to
segregate these substances from others. Such a unit can be
used only if it is shown to adequately protect public health and
the envi ronment .
CERCLA hazardous substances which are not hazardous wastes
under RCRA may, in some circumstances, be disposed of in other
legal units. In such cases, disposal should take place in accordance
•wi th '-other " 1 egal requirements. Hazardous substances which are not
hazardous wastes may be .-taken to a RCRA unit under the terms out-
lined in the preceeding paragraph, or to a unit legal under other
statutory provisions (for example, PCBs may be disposed of in a
TSCA approved disposal facility and radiocative materials in a
radioactive materials disposal facility). This disposal must be
consistent with Section 104(c)(3) of CERCLA, when applicable.
4. Interim status land disposal facilities under considera-
tion for off-site disposal must have adequate ground water
monitoring data to assess whether the facility poses a threat to
ground water. 3 Due to the lack of compliance with RCRA ground
water requirements, available data may not be adequate to assess
the facility. Moreover, lack of evidence of contamination fror.
the monitoring data does not necessarily mean the facility is
secure. The monitoring data may be faulty. In addition, there
may be other problems at the facility such as air emissions or
surface run-off. Where doubt exists concerning the acceptability
of a facility, an on-site inspection should be undertaken to
specifically address these concerns. Where possible, this
on-site inspection should be part of the required RCRA compliance
inspection.
All remai ni ng land disposal permit applications will be
requested in FY 1985. These applications contain summaries
of ground water monitoring data obtained during the interim
status period, and are required to identify any plume
cont aminat i on .
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5. Using information gathered from the compliance inspection,
other data sources (e.g., RCRA facility permit data), any other
facility visits and all other relevant information, Regional
Offices must evaluate and make a judgment on the acceptability of
using the facility for storage, treatment or disposal of hazardous
substances. For the facility as a whole, this evaluation should
consider whether there are any RCRA violations or other environ-
mental conditions^ at the facility which affect its satisfactory
operation. This evaluation should include consideration of
facility operations as well as whether there are physi cal, condi -
tions at the facility that pose a significant threat to public
health, welfare or the environment. For facilities in assessment
monitoring, the conditions which lead to required assessment
monitoring, as well as resulting monitoring data, must be evaluated
The evaluation also should consider the nature and quantity of the
substances and whether it is feasible to treat the substances prior
to land dis'posal to mitigate any adverse effects.
No Superfund hazardous substances shall be taken off-site to
a RCRA facility if the Region determines that the facility has
significant RCRA violations or other environmental conditions that
affect the satisfactory operation of the facility, unless
both the following conditions are met:
- (1) The owner or operator must commit, through an enforce-
able agreement (i.e., consent order or decree), to
correct the ptoblem. The agreement must be signed •
before the facility may receive the hazardous
substances. In addition, the Regional Administrator
must determine that the agreement is likely to result
in correction of the problem and the owner or operator
of the facility is capable of compliance with the terms
of the agreement; and
(2) Disposal only occurs within the facility at a new or
existing unit that is in compliance with RCRA require-
ments. The new or existing unit must not contribute
in any significant way to adverse conditions at the
facility.
III. MANIFEST REQUIREMENTS
If an off-site option is chosen, a manifest for the transpor-
tation of the hazardous waste must be obtained. The manifest must
It Is recogni zed that the RCRA regulations may not at this
time cover all environmental conditions at a facility. Regional
offices may consider other environmental factors at a facility
under consideration Including other State and/or Federal
environmental laws. If a facility is in assessment monitor-
ing, the conditions which lead to assessment monitoring may
constitute environmental conditions that adversely affect
facility operations. In such cases, Regions should assess the
conditions at the facility prior to using the facility for
Superfund purposes.
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be in compliance with RCRA for the transportation of hazardous
wastes. The manifest must be a Uniform Hazardous Waste Manifest
in compliance with requirements at 40 CFR 262 (see 49 FR 10490,
March 20, 1984). The lead agency or other party undertaking
the cleanup oust ensure that the transporter properly notifies
under RCRA section 3010. Where the lead agency allows contractors
to fill out the manifest, the agency should ensure that the
manifest is properly filed.
IV. PCB DISPOSAL REQUIREMENTS
Requirements for the disposal of PCBs are established in
40 CFR 761.60. Generally, these regulations require that whenever
disposal of PCBs are 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 excep-
tions that provide alternatives to the incineration requirements.
The principal alternative is disposal in an EPA approved landfill
for PCBs. Landfills used for PCB disposal must be inspected
within six months prior to disposal. Regions must determine the
acceptability of the facility based on the same- criteria used to
evaluate RCRA facilities in Section II. B.5.
V. IMPLEMENTATION
Beginning (30 days from date this document is signed) all
Records of Decision (RODs) and Enforcement Decision Documents
(EDDs) for Superfund-1ead and enforcement lead actions, respec-
tively, must include a discussion of compliance with these pro-
cedures for alternatives involving off-site management of Superfund
hazardous substances at RCRA facilities. Decision documents for
removal actions also should include discussion of compliance with
these procedures. It is recognized that actual offsite facility
information will not be available at the ROD stage. However, the
RI and FS should use actual off-site facilities in costing remedial
alternatives, In order to have cost figures that are as accurate
as possible.' It is recognized that additional facilities are
likely to be considered during the bidding process. Any facility
ultimately selected for disposal, treatment or storage must meet
the requirements of this policy.
Provisions requiring compliance with these procedures must be
included in any contracts for response, cooperative agreements
with States undertaking Superfund response and all enforcement
agreements. For ongoing projects, these provisions will be
implemented as follows:
RI/FS: The Regions shall immediately notify Agency contractors
and States that 1) alternatives for off-site management
of wastes must be evaluated pursuant to the provisions
of this policy, and 2) consistent with the policy on
other environmental laws, treatment alternatives
should not be dropped during the screening stage.
RD: The Regions shall Immediately notify Agency contractors,
the States, and the U.S. Army Corps of Engineers that
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all remedies chat include off-site disposal of hazardous
substances must comply with the provisions of this
policy pertaining to selection of an acceptable o.ff-site
facility.
RA: The Regions shall immediately assess the compliance
status of land disposal facilities receiving hazardous
wastes from ongoing projects. For a facility not in
compliance, the Region should take immediate steps
to bring the facility into compliance with the policy.
Enforcement: Actions currently under negotiation and all future
actions must comply with these procedures. 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 agree-
ment (See the Interim CERCLA Settlement Policy, Part
VII; Thomas, Price, Habicht; December 5, 1984).
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. If the response action is
proceeding under a State-lead, the Regions should amend the
cooperative agreement. Exceptions for existing contracts and
cooperative agreements may be allowed on a case-by-case basis •
by the appropriate Headquarters Office Director.
All Regions must adopt procedures to implement and continual-
ly monitor compliance with these requirements. The procedures
must include designation of a management official who is respon-
sible for providing information on RCRA facilities in the Region
to other Regions. It is the responsibility of the Region in
which the RCRA offsite facility is located to assess the accept-
ability of the facility in consultation with the Region planning to
ship wastes to the facility. The names of these officials should
be provided to the Office of Waste Programs Enforcement by May
21, 1985. These names will then be forwarded to all Regions.
If you have any questions concerning these procedures, please
contact Sylvia K. Lowrance (FTS 382-4812).
Attachments
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