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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
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OFF!CE OF
SOLIO ‘N. SE ND M ?G NCY RES2ON5
OCT t61989
OSWER DIRECTIVE 9010.OOa
MEMORANDUM
SUBJECT: Agency Review of SARA Capacity Assurance Plans
FROM: Jo/i Cannon, Acting Assistant Administrator
Office of Solid Waste and Emergency Response
TO: EPA Regional Administrators
CERCLA 104(c) (9) requires that any State receiving CERCLA
funds for remedial action directly or pursuant to a cooperative
agreement must provide capacity assurances deemed adequate by the
President (subject to delegation). After October 17, 1989, the
Agency will only enter into cooperative agreements or State
Superfund Contracts to fund CERCLA remedial actions in States
that have provided an assurance, through the Capacity Assurance
Plan (CAP) process, that sufficient hazardous waste capacity
would E xist to manage wastes generated in the State during the
next 20 years.
This memorandum discusses EPA policy and procedures related
to EPA CAP review criteria, the review process itself, and the
potential effects on Superfund actions if a State’s CAP is deemed
inadequate. This memorandum supplements the previous guidance,
“Assurance of Hazardous Waste Capacity,” OSWER Directive Number
90l0.OC, issued in December 1988, In some cases, the Agency
current policy refines elements in the previous document.
This is the first time EPA and the States have implemented
the CERCLA 104(c) (9) provision. EPA will study the results of
this set of assurances and revise this directive for updates of
the assurances as appropriate.
EPA expéctsthat many States will include source reduction
as one way to assure a balance between hazardous waste generation
and capacity. The Agency will continue to work with States to
see that source reduction plays a major role in each State’s
hazardous waste capacity planning process.

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OSWER DIRECTIVE 9010.. OOa
I. POLICY
We are committed to implementing the capacity assurance
provisions to address the need for safe hazardous waste
management. Because our intent is not to unnecessarily slow
progress in the Superfund remedial action program, it is
imperative that the review process for those CAPs received by
October 17, 1989 proceed as expeditiously as possible. CAPs for
those States that have planned remedial actions should be given
priority. As discussed below, EPA will, in some cases, determine-
that an assurance is adequate if it includes supplemental
conditions. However as required by Section 104(c) (9), EPA will
delay or withhold Superfund remedial action funds as appropriate
for CAPs that are deemed inadequate.
CAP assurances should have a strong and realistic waste
minimization element. Regions should work with States to
strongly encourage that current and future CAP submissions
include waste reduction and that estimates of reduction•.used in
these plans are reasonable. EPA will accept reasonable and
documented estimates of potential waste reduction in CAPS.. We
should expect States to plan programs to obtain significant per
capita reductions in waste generation, if they have not already
done so.
EPA strongly believes that source reduction is often an
economically and environmentally sound method for addressing
hazardous waste generation, and EPA Regions should continue: to
urge States: to aggressively encourage waste reduction. It is EPA
policy to prefer waste reduction over all methods Of waste.
management.
Congress adopted. CERCLA 104(c) (9) to assure that all States
take responsibility for the difficult decisions needed to .see
that. there will be adequate, and safe, treatment or disposal for
the wastes that continue to be generated within their State. The
SARA capacity assurance planning process provides an important:
framework fOr States to assume responsibility for fostering waste
minimization and achieving a balance between waste generation and
capacity for management of those wastes that a minimization
program has not eliminated.
II. EPA REVIEW CRITERIA
1. GENERAL CRITERIA
The Agency will determine a plan to be adequate if:
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OSWER DIRECTIVE 90l0.OOa
(a) the plan forms the basis for a reasonable assurance.
that a. State will have adequate capacity to manage its
hazardous. waste for the next 20 years,
(b) as necessary, the State demonstrates. commitment and.
capability to carry out the plan (this can be evidenced
through use of. milestones),. and
(c) the, plan documents interstate and/or regional
agreements’ for imports and exports.
We recognize that it is important to have realistic
expectations of CAP submissions. This is the first time some
States have undertaken a detailed analysis of the waste
generation and management capacity within their State. There are
some difficult. technical issues in understanding various data
systems used to make estimates. of generation and capacity.
Because there currently is no capacity nationally for mixed
hazardóus,and radioactive, wastes, the Agency-will accept plans
that demonstrate how the State’ will obtain future capacity for
such’ mixed waste,s in. a reasonable time.
EPA will determine that State CAPS fall into one of three
categories.:
(a) CAPs. that are adequate as they ‘are;
(b) ‘ CAPS that are adequate’. if they incorporate supplemental
conditions;
(C) CAPs that are inadequate..as. they are.
For assurances deemed adequate’ as submitted, EPA may provide
the State with suggestions as to how the plan could be improved.
Regions are instructed to give priority to’ reviewing
capacity assurances in those States in which there are Superfunc
remedial actions pending in the,first two quarters of this fiscal
year. If supplemental conditions are needed in those same States
to deem their assurance adequate, the Regions are instructed to
give that their full attention ‘and priority.
2. COMPLETENESS .
EPA will reviecr four elements, of each State capacity
assurance plan:
(a) ‘The State’s current hazardous waste management system;
(b) Hazardous waste minimization and recycling plans;
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OSWER DIRECTIVE 9010.OOa
(c) Projected future hazardous waste generation, imports,
and exports; and
(d) Projected future hazardous waste management system.
Any assurances relying upon the availability of facilities
outside the State for management of hazardous wastes must, under
Section 104(c) (9) (B) be in accordance with an interstate
agreement or regional agreement or authority. Agreements should
be included with the CAP in order for EPA to review the adequacy.
of the assurance. Interstate agreements should assure that
states are working cooperatively to create or to assure access to
facilities, and should demonstrate agreement on interstate waste
flow characteristics and quantities that can be compared with
similar submissions from affected States.
3. USE OF MILESTONES WITHIN A CAP
1f a State is, as part of its assurance, planning
development of new waste management capacity, the State plan must
include milestones for the development of that capacity. If a
State is planning for development or enhancement of a waste
minimization program it similarly should have milestones for
actions needed to effect the program. Those milestones are part
of the Stat&s demonstration of its commitment to the capacity
assurance plan, and will be used by EPA to monitor implementation
of the plan. If a State fails to meet the milestones agreed to
in the assurance, EPA will reexamine whether the State’ ;
assurance as a whole continues to be deemed adequate. Cf EPA
deems the plan to be inadequate, EPA will halt further funding of
remedial actions in the State.
The use of major milestones is not meant to force premature
decisions by a State. EPA recognizes that States may be unable
to specify at this time exactly where new capacity would .be sited
within a State or Region. However, the State should demonstrate
that it is aware of the lead time needed to provide additional
capacity. Therefore, capacity assurance plans should include
milestones such as:
o when a final assessment of need will be completed,
0 when a site would be selected,
o when necessary permit applications would be filed,
o when construction would begin,
o when operation would begin.
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OSWER DIRECTIVE 9010.OOa
Such milestones must reflect a realistic understanding of the
intervals of time needed between actions such as:
o. date’ .for establishment of a State waste minimization
program,
o selection of target industries for technical assistance
of other measures,
o implementation of date for such assistance or other
measures.
4. USE OF SUPPLEMENTAL CONDITIONS FOR CAPS
In addition to those States whose CAPs will be deemed to be
adequate as submitted, there may be States for which Regional
Administrators will establish supplemental cOnditions, such as
schedules to provide additional information or complete other
commitments. For example, a State may have :had problems fully
analyzing he generation of hazardous waste which is managed at
facilities, that are exempt from RCRA permitting. In that case,
theRegion may accept the assurance onthe basis of the State’s
estimates with, avaIlable data provided the State agrees to a
schedule for improving the quality of that portion of the
capacity. assurance plan.
In a situation where supplemental. conditions are needed, no
State Superfund Contract or cooperative agreement should be
èntered’into for sucha State until the State has incorporated
the supplemental conditions into its State’s assurance as a
conditior of the State’ Superfund Contract or cooperative
agreement.
III. PROc ESS FOR DECISIONS
1. DELEGATED ‘TO EPA REGIONAL ADMINISTRATORS
The:review of the CAPS is delegated to Regional
Administrators. Regions must, however, consult with the Office
of Solid Waste (OSW) before a final decision is made. Both EPA
Regions ai d OSW have a role in the CAP review. Regions have
detailed knowledge of the States and their capacity assurance
planning efforts. For that reason, the Regions will be the
primary deáisiân-makers,’jnthjs process. Regions should focus
their reviews especially on those areas of the CAPs dealing with
State laws, waste minimizatiOn programs and State—specific data’.
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OSWER DIRECTIVE 90l0.OOa
The Office of Solid Waste in EPA headquarters, is to focus
on national consistency issues and issues of national policy.
Since this is the first time these determinations are being made,
it is important to have OSW review to ensure national
consistency. Furthermore, since waste often is transported
across Regional as well as State borders, OSW will also examine
the adequacy of interstate agreements.
2. TIMING
It is difficult to estimate how long the review of State
plans will take due to the diversity of the plans and the fact
that this is a new program. However, Regions must within 90 days
complete an initial review of all plans. The results of this
initial review will be used to evaluate the CAP process, identify
major issues and establish schedules for final determinations on
all CAPs.
• Priority for review and determinations should be giyen to
those States in which there are pending Superfund remedial
• actions. Plans may be reviewed and deemed adequate as soon as
the Region, in consultation with the OSW, has completed its
review of the plan and deems it to be adequate.
3. PROCESS STEPS•
o States submit the original and ten copies of the CAP to
the following address:
U.S. Environmental Protection Agency
Office of Solid Waste
Mail Code OS—lb
401 M Street, S.W.
Washington, D.C. 20460
ATTN: Capacity Assurance Plan Enclosed
OSW will distribute the CAPS to the appropriate
Regional offices as necessary.
o Decisions about the acceptability of specific CA?s
should not be announced until after the Region and OSW
confer.
o Regions notify States if supplemental conditions are
needed, and then give such States an opportunity to
consider those conditions.
o New remedial action funding (see .Section IV) will not
be available to States: until a CAP is determined to be
adequate.
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OSWER DIRECTIVE 9010.OOa
4. HEADQUARTERS SUPPORT FOR THE REVIEW PROCESS
OSW has conducted a meeting of Regional CAP coordinators on
October 11 and 12 to discuss a detailed checklist for evaluating
CAPs. OSW has also summarized, past work on waste minimization to
provide Regional staff with some guidance as to what amounts of
waste reduction States might reasonably forecast, although
specific State plans may have a basis for forecasting reductions
outside the range being designated. as a reasonable guide.
Finally, OSW will work with Regional staff to identify as soon as
possible difficult judgement calls that we know or expect will
arise with respect to determining the acceptability of
submissions. Any information relevant to these issues, along
with questions answered by Regional coordinators and OSW, will be
compiled and distributed to all Regions. Regular contact between
Regional staff and OSW staff will be essential over the next few
months..
5. . STATES. MAY REVISE CAPS
States may update CAPs at any time. EPA recognizes that
State hazardous waste systems are dynamic and that factual
information or assumptions upon which a State’s CAP is based may
change. If changes do occur that would affect implementation
milestones contained in CAPs previously found acceptable, revised
CAPS must be submitted and found acceptable by EPA. Until these
changes are approved by EPA in its review of updated CAPs, the
Agency will cOntinue to. review previously approved implementation
milestones to ensure State CAPsLare adequate.
IV. CERCLA ACTIONS POTENTIALLY AFFECTED BY SUBMISSION OF AN
INADEQUATE CAP
‘.0 Unless exempted below, all new Superfund remedial
action Cooperative Agreements (CAs). and Superfund State
Contracts (SSCs) for remedial action at an operable
unit not yet signed by the EPA Regional Administrator
and all State official(s) necessary to obligate State
funding will be “frozen” until EPA determines that the
State in which the site lies has submitted an adequate
CAP. .
o , For ongoing operable unit remedial actions with EPA-
and State—signed CAs and SSCs by October 17, 1989,
incremental fundir g increases required during the
remedial action (e.g., due to phasing of construction
of the operable unit, or increases in cost during
construction), which result in a need to amend the CA
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OSWER DIRECTIVE 9010.OOa
or SSC will be allowed as long as this additional work
is within the scope of the original contract.
o For ongoing or new PRP—lead remedial actions, new
EPA/State oversight activity CAs or SSCs will be
allowed.
o For ongoing remedial actions with EPA— and State—signed
CAs or SSCs by Qctober 17, 1989, new CAs, or SSC5
providing for EPA or State “Management Assistance,”
respectively, will be allowed.
V. CONCLUSION
We appreciate that many of you have provided personal
leadership in this extremely important effort. We have much to
gain by continuing to take full advantage of this opportunity to
foster cooperation and planning among States and to further the
Administration’s joint policy goals of waste minimization and
adequate well-regulated capacity to deal with hazardous waste
that cannot be eliminated. Given the changing nature of
hazardous wastes as well as the technologies we apply to make the
environment as safe as possible, it is only by working together
and sharing our fai1ures and our successes that we will all.
succeed..
If you have further questions about this Directive, please
contact Michael Taim L .t (202) 475—9829.
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