- - PFANS - -— •ova], :: ; .‘• ...I6VALDI ,!-.- ------- rt OSWER Directive Initiation er1uest I :‘:a T.Michael Ta j OS- ho os AGENCY REVtEt OF AR\ C 3 P.ACI LRA 1 CE L- EP.A POLICY ;D PRCC L R AT TO A CARACIr( A LR ;c ? CAPACITY, .ASSL R CAP CERCL€A, 1 O4(c)(9) ¶61. Does Th 3 Directive SugefseOe Jre.vi 0 j 5 bcrect,vetsi No b. Does st SuoaIeqneq, Previous CirectNe(3) Whit itecrive (numoer, trVe) OSWER VE DIRECTIVE OSWEp OSWER. C DIRECTIVE DIRECTIVE No y, . A - Signed by DM S - Signed by O c. Oirector C - For R j & Comm t 0 - n What irectjve (number, till.) ------- S1 4p UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 r . ? 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. ------- 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: 2 ------- 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; 3 ------- 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. 4 ------- 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’. 5 ------- 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. •6 ------- 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 7 ------- 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. 8 ------- |