United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
&EPA
DIRECTIVE NUMBER: 947l.00-0la
TITLE: Assurance of Hazardous Waste Capacity Guidance
to State Officials
APPROVAL DATE: April 15, 1991
EFFECTIVE DATE: April 15, 1991
ORIGINATING OFFICE: Capacity Programs Branch,
Waste Management Division,
Office of Solid Waste
ix I FINAL
DRAFT
STATUS:
D A - Pending OMB Approval
D B - Pending AA-OSWER Approval
REFERENCE (Other Documents):
Supplement to 9471.00-01 (formerly 9010.00) and
9471.00-02 (formerly 9010.OOa)
OSWER OSWER OSWER OSWER
DIRECTIVE DIRECTIVE DIRECTIVE
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United States Office of
Environmental Protection Solid Waste and
Agency Emergency Response
VEPA DIRECTIVE NUMBER: 9471.00-Ola
TITLE: surance of Hazardous Waste Capacity Guidance
to State Officials
APPROVAL DATE: April 15, 1991
EFFECTIVE DATE: April 15, 1991
ORIGINATING OFFICE: Capacity Programs Branch,
Waste Manag r nt Division,
Office of Solid Waste
FINAL
DRAFT
STATUS: 0 A - Pending 0MB Approval
0 B - Pending AA-OSWER Approval
REFERENCE (Other Documents):
Supplerrent to 9471.00—01 (fourerly 9010.00) and
9471.00—02 (fonierly 9010.OOa)
OSWER OSWER OSWER OSWER
DIRECTRIE DIRECTIVE DIRECTIVE
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EPA Washington DC 20460
United States Environmental Protection Agency Directive Number
OSWER Directive Initiation Request 9471.00-Ola
2 OrIginator
Name of Contact Person Mail Code Office
Stephen Bergman OS- 21W Capacity pgr Te e o _ 8474
3 Title
Assurance of Hazardous Waste Capacity Guidance to State Officials
4 Summary of Directive (include bnef statement of purpose)
The attached guidance docun nt describes the suhnission that will constitute the
basis for the State’ s assurance that sufficient hazardous
capacity
u1d exist to manage wastes generated in the State during the 20
years.
It .is lintited in scope, requiring only the States address status of
progress
to ir et capacity needs.
5 Keywords
assurance / hazardous waste / capacity / guidance / State officials/ CA /
6a Does This Directive Supersede Previous Durectuve(sy’ No Yes What directive (number, title)
b Does It Supplement Previous Durectrve(s) No Yes What directive (number title)
9471.00—01 & 9471.00—02
7 Draft Level
A — Signed by AA/DAA B — Signed by Office Director C — For Review & Comment D - In Development
[ 8. Document to be distributed to States by Headquarters? Yes No 1
This Regu st Meets OSWER DIrectlv s System Format Standards
9 nat - of Lead Office Dire ive 2 pordInator
1 i Oives Coordinator
Title of Approving Official
/
Date
‘ //i /
Henry Longest for I n R. Clay, AA/OSWER
Da e /
4/15/91
EPA Form 1315-17 (Rev 5 -87) Previous editions are obsolete
OSWER
OSWER
Os
WER
0
VE DIRECTIVE DI
RECTIVE
DI
RECTIVE
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OSWER Directive 947 l.OO-Ola
O Sr 4 ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C 20460
k - Ke —
“ o ’
APR 15 t991
OFFICE OF
SOLID WASTE AND EMERGENCY ESPQNE
Ms. Cynthia Bailey
Executive Director
Department of Waste Management
101 N. 14th Street
Richmond, Virginia 23219
Dear Ms. Bailey:
The attached guidance document, Assurance of Hazardous Waste
Capacity , describes the submission that will constitute the basis
for the state’s assurance that sufficient hazardous waste
capacity would exist to manage wastes generated in the state
during the next 20 years. It is limited in scope, requiring only
that States address status of progress to meet capacity needs.
This submission and the accompanying transmittal letter, together
with the 1989 CAP and any amendments, revisions or supplements
submitted by the state since its original submission, will be
considered as we determine the adequacy of the state’s assurance.
We would like to thank all those State representatives who
commented on our draft, as well as those who made recommendations
at various meetings we have attended over the past year. The
comments were thoughtful and informative, and we appreciate the
effort you made. We are trying to improve the capacity assurance
planning process, and we cannot do that without your assistance.
We have enclosed a summary of the many comments that we received
concerning the draft guidance, and an explanation of how each
was, or will be, addressed.
Although the intent of this letter is to transmit the 1991
guidance document to you, I would also like to use this oppor-
tunity to tell you what the Agency is doing to implement the 1939
CAP and how the Agency is preparing for the 1993 CAP.
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OSWER Directive 947 l.0O-Ola
2
Implementation of the 1989 CAP
There is a growing concern among some States that the burden
of hazardous waste management is not shared by all States.
States that have capacity believe that they have become the
nation’s dumping grounds. Their original expectation that
CERCLA 104(c) (9) would force all States to assume a “fair share”
of responsibility has been replaced by a feeling that the SARA
capacity planning process is defective unless sanctions are
imposed.
EPA agrees that some inducements may bolster the capacity
process. Over the next several months, we will be reviewing all
these conditions in an effort to determine how we can “level the
playing field” to correct for any current inequities. We expect
to develop guidance that will promote national consistency and
consider the feasibility of equitable inducements. Our plan is
to distribute this 1989 CAP implementation guidance document to
states for review this Spring.
Deadline for States’ Submission
In response to the many requests we have had to allow as
much time as possible between the issuance of the CAP guidance
document and the CAP submittal date, we have decided to require
this submission by February 15, 1992, rather than October 1991.
This should give you sufficient time to prepare this submission
(now to be referred to as the 1992 CAP submission), as well as
anything that may be necessary in response to the 1989
implementation guidance document.
Planning for the 1993 CAP
The Agency is committed to implementing the capacity
assurance provision so that planning for hazardous waste
minimization and management is as efficient and effective as
possible. At various meetings held over the last year, States
had an opportunity to evaluate the ‘89 CAP process and offer
their recommendations for improving the process. The States
expressed a series of concerns and suggested a number of changes
that could be made; for example, several of the regional
agreement States provided specific reports to the Agency in which
they made recommendations to improve the CAP process. In
addition, we have undertaken a joint effort with the National
Governors’ Association to form workgroups comprised of State and
EPA members who are considering how the process can be improved
so that it will be a worthwhile exercise for us all. After
reviewing all the recommendations, the Agency will prepare a
draft of the 1993 guidance that all States will have an
opportunity to review before it is issued in final.
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OSUER Directive 9471.00—Ola
3
Capacity Assurance Planning Data Requirements
One of the areas that is most crucial to the success of the
capacity assurance program as a waste management planning tool is
the collection of accurate data. Without accurate data, planning
becomes a meaningless exercise. EPA is aware of the limitations
of former data collection efforts and is working towards elimi-
nating past problems.
The Biennial Report and Capacity Assurance staffs are
working together to ensure that States have the authority and
ability to collect the information that is needed to effectively
utilize this planning effort. The Agency will generally not ask
the States for any data that are not collected through the
Biennial Reporting process. In other words, the Biennial
Reporting process will be the primary data collection tool for
SARA CAP data requirements. The state, however, is free to use
its state equivalent system.
The Biennial Report staff, with assistance of workgroups
comprised of State, regional and Headquarters members, plans to
promulgate a rule which will codify what the States will report
voluntarily in the 1991 cycle. We do not anticipate making any
major revisions in the reporting process in terms of expanding
the universe of facilities who report, nor do we anticipate any
major changes in terms of the type of information collected. The
reporting process will be modified to some degree to enhance the
capacity assurance planning process; major changes will only be
proposed, however, after the Office of Solid Waste has had time
to fully evaluate them to determine how necessary the additional
information is.
Again, thanks to all of you who commented on our draft, as
well as those of you who have added your recommendations for the
CAP process at other times. Our dedication to improving the
process is greatly enhanced by your interest and suggestions.
Sincerely,
ss istant
strator
Enclosure
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OSWER DIRECTIVE
9471. 00—Ola
APRIL 15, 1991
ASSURANCE OF HAZARDOUS WASTE CAPACITY
GUIDANCE TO STATE OFFICIALS
A SUPPLEMENT TO OSWER DIRECTIVE 9471.00-01
(FORMERLY OSWER DIRECTIVE 9010.00), ISSUED DECEMBER 1988
AND OBWER DIRECTIVE 9471.00-02
(FORMERLY OSWER DIRECTIVE 9010.OOa), ISSUED OCTOBER 1989
PLEASE SEE THESE DIRECTIVES FOR ADDITIONAL INFORMATION
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OSWER Directive 9471.00—Ola
TABLE OF CONTENTS
PAGE
INTRODUCTION 1
BACKGROUND 1
BASIS FOR ASSURANCE 1
INTERSTATE AND REGIONAL AGREEMENTS 2
1989 MILESTONES AND SUPPLEMENTAL CONDITIONS 2
1992 SUBMISSION (FORMERLY THE 1991 SUBMISSION) ‘ 3
• GOVERNOR’S TRANSMITTAL LETTER 4
• PROGRESS TO MEET CAPACITY NEEDS 3
- WASTE MINIMIZATION PROGRAM 5
- FACILITIES STATUS 5
- INTERSTATE OR REGIONAL AGREEMENT 5
• SUBMISSION OF MATERIALS TO EPA 6
STATUS OF CAPACITY ASSURANCE PLAN 6
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OSWER Directive 9471.00-Ola
I. INTRODUCTION
CERCLA 104 (C) (9) requires that any State receiving CERCLA
funds for remedial action directly or pursuant to a cooperative
agreement must provide capacity assurance deemed adequate by the
Environmental Protection Agency. Since October 17, 1989, the
Agency has entered into cooperative agreements or State Superfunci
Contracts to fund CERCLA remedial actions only in States that
provided an assurance, through the Capacity Assurance Plan (CAP)
process, that sufficient hazardous waste capacity would exist to
manage wastes generated in the State during the next 20 years.
This document is a supplement to the 1988 directive,
“Assurance of Hazardous Waste Capacity, Guidance to State
Officials,” and its purpose is to describe the 1992 capacity
assurance planning submission that is required of states. 1
II. BACKGROUND
This past year was the first time EPA and the States
implemented the CERCLA 104(c) (9) provision. The Agency believes
that this first round of capacity assurance plannj.ng has been a
beneficial exercise in many ways, and we applaud the efforts of
all the states. Although only ten states had remedial action
money at stake since the October 1989 deadline, every state in
the nation, as well as the District of Columbia submitted a CAP.
Although EPA realizes that there are still problems with
implementation of this provision, it believes that the CAP
program has been successful in a number of ways. EPA and the
states have worked together and have learned from this process.
We have improved our understanding of hazardous waste management
systems and identified the strengths and weaknesses of individual
programs. We have engaged in constructive interstate dialogue
and planning and will continue this dialogue so that problems can
be anticipated as we plan for the future. Great strides have
also been made in improving and expanding waste minimization
programs. There is increased public discussion of siting issues,
including the related issue of “fair share” of responsibility for
waste management. Together, the states and EPA are seeking
equitable solutions to the complex questions raised.
III. BASIS FOR ASSURANCE
Among the factors used by the Agency in 1989 to determine
that a state’s assurance was adequate were the economic models
the state provided showing data for waste generated, and capacit
within and outside the state for that waste. This data
1 The original plan was due in October of 1991, however, the
Agency is now requiring the CAP to be submitted by 2/15/92.
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OSVIER Directive 9471.00—Ola
demonstrated the state’s knowledge of its hazardous waste
management system as well as its present and planned future
export and import balance. The Agency decided that an array of
20 years of data and projections was necessary, for the first
round of implementation, to show that provisions for waste
minimization, treatment or disposal had been made for all
hazardous waste the state included in its projections.
The Agency understands the concern states have with the lac1
of reliability of projections that extend 20 years into the
future, and we are working with the states to determine gust ho
far in the future reliable projections can extend. For this
submission, we intend to rely on states’ commitments to mainta n
capacity for the latter years of the 20 year period. We do not
find it necessary to use data and projections covering a 20 year
period (1992 to 2012), as a basis for deeming a state’s assurance
adequate. The status of the CAP submitted pursuant to the 1992
submission, coupled with the data included in the 1989 capacit
assurance plan which covers the period through 2009 (or 18
years) , will be sufficient to judge the adequacy of the state’s
basis for assurance.
IV. INTERSTATE AND REGIONAL AGREEMENTS
CERCLA 104 (C) (9) requires that assurances relying upon the
availability of facilities outside the state must be in
accordance with an interstate agreement or regional agreement or
authority. All but seven states are currently participating ln.
regional capacity sharing agreements. Although Congress did nc:
specify the form these agreements would take, we believe they
contemplated that interstate agreements would demonstrate that
states were working cooperatively to plan for adequate treatr’.ent
and disposal capacity.
Several changes in regional agreement participation have
occurred since October 1989 and will likely continue to occur.
Since one of our goals is to portray a more realistic view of me
country’s hazardous waste management, we urge States to contint e
to pursue arrangements that they believe more accurately reflect
actual interstate waste flows.
V. 1989 MILESTONES AND SUPPLEMENTAL CONDITIONS
Although some of the state Capacity Assurance Plans
(CAPs) have been approved unconditionally, the great majority of
CAPs are those for which Regional Administrators have establisned
supplemental conditions, such as schedules to provide additional
information or to obtain capacity through regional agreements or
siting. The Agency believes that approval with supplemental
conditions is a productive procedure because it allows the Agenc
to keep states, who thus far have made a good faith effort to
comply with the statute, acti 1 vely involved in the process.
2
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OSWER Directive 9471.00-Ola
However, a CAP cannot serve as the valuable planning
tool it was meant to be, nor can it be said to provide a basis
for assurance of capacity, unless supplemental conditions and the
commitments included by the states themselves in their CAPs, are
met. Although we believe that these commitments are extremely
important, and expect that states will continue to meet these
conditions, we do not expect additional information or a report
on progress to meet these conditions in the 1992 submission. The
Regions will continue to track compliance with supplemental
conditions and failure to meet supplemental conditions may place
the CAP’S approval status in jeopardy.
Supplemental Conditions for Hazardous Waste Going to Exempt
Systems and Mixed Waste
As a condition for approval of their CAPS, many states
received supplemental conditions for hazardous waste going to
exempt systems and mixed waste. The Agency realizes that states
are limited in their authority and ability to collect data and
report on hazardous waste going to exempt systems and mixed
waste. Therefore, until such time as the Agency is able to
provide states with a tool to collect such data, we will no
longer require states to satisfy their supplemental conditions
for hazardous waste going to exempt systems and mixed waste.
we do not believe that these categories of waste are of
sufficient consequence to affect capacity determinations. 2
VI. 1992 SUBMISSION
In Don R. Clay’s August 20, 1990 memorandum entitled
“Capacity Assurance Planning for 1991,” it was stated that the
Agency has decided that the ‘91 submission (now the ‘92
submission) should be limited in scope, and tailored to only what
is essential at this time. Totally new generation and capacity
analyses will not be required until 1993. Based on our analysis,
there are only two items (Governor’s Transmittal Letter and
Report on Progress to Meet Capacity Needs), that are considered
essential for the 1992 submission. They are described below.
A. Governor’s Transmittal Letter
Each state is to submit its 1992 submission to EPA on or
before February 15, 1992. A suggested transmittal letter,
including the state’s assurance, appears below. If the letter
transmitting the 1989 CAP was not signed by the Governor or
authorized designee, then this transmittal letter must be signed
2 At some time in the future, if possible, we may wish to
collect this information for long-term planning purposes using
the Biennial Reporting System.
3
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OSWER Directive 9471.00—Ola
by the Governor or his designee. Also, if the Governor has
delegated authority to provide the assurance, and the 1989
submission did not contain this information, then the 1992 CA?
submission should also include a letter signed by the Governor,
delegating authority to the signatory to provide the assurance.
However, if the 1989 CAP submission included a letter signed by
the Governor and/or a letter which delegated authority to the
signatory to provide the assurance, then a new signature by the
Governor is not required at this time; the designee’s signature
will suffice.
Dear Regional Administrator:
Section 104(c) (9) of the Comprehensive Environmental Respor--
se, Compensation, and Liability Act, as amended, requires as a
condition for providing remedial actions that states assure the
availability of treatment or disposal facilities which have the
capacity to treat, destroy, or securely dispose of all hazardous
wastes that are reasonably expected to be generated within this
[ State, Commonwealth, Territory] for twenty years.
In evaluating the adequacy of the materials that provide a
basis for you to evaluate this assurance, (name of state,
commonwealth, territory] wishes the Regional Administrator to
consider the following:
• (name of state, commonwealth, territory] ‘s Capacity
Assurance Plan (“CAP”) submitted [ month/day], 1989.
• Agreement between EPA Region [ number] and [ name of
state, commonwealth, territory] approving of the state’s CAP,
including supplemental conditions and/or milestones.
• [ any amendments, revisions or supplements to the
state’s CAP since its original submission referred to above --
please briefly describe each inclusion]
• The following attached documents:
Status report on progress to meet capacity nee’ .s.
and
Letter signed by [ name of governor), Governor cff
[ name of state, commonwealth, territory] delegating authority to
the undersigned to provide this assurance, if not provided with
the 1989 submission.
• The government of this [ State, Commonwealth, or
Territory] hereby reaffirms its commitment to carry out the
activities described in these incorporated documents.
Sincerely yours,
4
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OSWER Directive 94 7l.O0-Ola
B. Progress to Meet Capacity Needs
All 50 States (and territories) should provide a
qualitative assessment and progress report that covers the waste
minimization program, the status of facilities, and any
interstate or regional agreement. We do not expect that this
report will include new generation and capacity analyses, but you
are welcome to include this information if you wish.
(1) Waste Minimization Program
Please include a brief description of any relevant
legislation, as well as:
• a description of the current situation;
• changes that have occurred since the CAP was first
submitted;
• state’s plans for the future
(2) Status of Facilities
Please include only those facilities that meet the
following criteria : any 1) new or 2) expanded siting within the
State’s borders, and any other 3) major changes in facility
status, such as closure or failure to obtain as anticipated,
permit modification to expand, that affect capacity. Please
describe qualitatively:
• a description of the current situation;
• major changes that have occurred since the CAP was
first submitted, and how these changes effect any
shortfalls which were described in the original
CAP submission;
• state’s plans for the future
We would appreciate your including any information in a
situation where the legal status of a facility is being
challenged, e.g., permit denial undergoing appeal.
(3) Interstate or Regional Agreement
Please include:
• changes that have occurred since the CAP was first
submitted, and how these changes effect any
shortfalls which were described in the original
CAP submission;
5
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OSWER Directive 947 l.OO—Oia
C. Submission of Materials to EPA
All materials should be transmitted to EPA for revie...
The Agency expects that the states’ 1992 submission will include
one document containing two subparts: 1) a transmittal letter,
and 2) a report describing: a) the waste minimization progran,
b) the status of facilities, and C) interstate/regional
agreements.
An original and four (4) copies of this document should be
sent to the appropriate regional office.
VII. STATUS OF CAPACITY ASSURANCE PLANS
It should be clearly understood that although the 1992
submission will not be as broad in scope as the one for 1989,
failure to submit the requested information will constitute
default in the state’s obligation to assure capacity under CERC ..
104(c) (9). Thus, if the state fails to submit the CAP by
February 15, 1992, the state will no longer have assured capacity
under CERCLA 104(c)(9). If no 1992 submission is made,, the 1989
CAP cannot form the basis for continuing capacity assurance.
If the status of the state’s 1989 CAP is unapproved, this
submission will not change the status of such a CAP. Until the
1989 submission has been approved, a previously unapproved CAP
will retain its status of not approved.
Once the 1992 CAP has been submitted, priority for revie; :
and determinations will be given to those states in which there
are pending Superfund remedial actions.
3 It may happen that EPA will approve a CAP, but that
subsequent information or events persuade EPA that the CAP no
longer provides adequate assurance. In that case, EPA would nct
provide remedial actions until adequate assurance was provided.
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