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OSWER Directive 9835.16
GUIDANCE ON PREPARING WASTE-IN LISTS
AND VOLUMETRIC RANKINGS FOR RELEASE
TO POTENTIALLY RESPONSIBLE PARTIES (PRPs) UNDER CERCLA
FINAL
February 20, 1991
This guidance and any internal procedures adopted for its
implementation are intended solely as guidance for employees of the „
U.S. Environmental protection Agency. Such guidance and procedures
do not constitute rulemaking by the Agency and may not be relied
upon to create a right or benefit, substantive or procedural,
enforceable at lav or in equity, by any person. The Agency may
take action at variance with this guidance and its internal
implementing procedures.
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OSWER Directive 9835.16
GUIDANCE ON PREPARING WASTE-IN LISTS
AND VOLUMETRIC RANKINGS FOR RELEASE
TO POTENTIALLY RESPONSIBLE PARTIES (PRPs) UNDER CERCLA
I. INTRODUCTION
This document provides guidance on the compilation and
release of waste-in lists and volumetric rankings. A waste-in
list gives the volume and nature of substances contributed by
each PRP identified at a facility. A volumetric ranking is a
ranking by volume of the hazardous substances at a facility.
If EPA invokes special notice procedures under CERCLA
section I22(e)(l), th« Agency must provide PRPs with waste-in
lists, volumetric rankings and a list of PRP names and addresses
"to the extent that such information is available." This
information facilitates the information exchange process with
PRPs that can expedite a settlement agreement. Where available,
waste-in information is sent to PRPs before formal negotiations
begin. For more information on the Agency's policy on releasing
information to PRPs at CERCLA sites, see Releasing Information to
Potentially Responsible Parties at^CERCLA Sites. OSWER, March 1,
1990, OSWER Directive 9835.12, and references cited there.
II* BACKGROUND
Experience has demonstrated that waste-in lists and
volumetric rankings are a valuable tool in bringing about
settlements at Superfund sites. When presented with an estimate
of the nature and volume of hazardous substances contributed to a
site, PRPs are more able to coalesce into committees and
determine allocations among themselves, and often are more
willing to participate in settlement negotiations with EPA.
While not all sites are logical candidates for waste-in lists or
volumetric rankings, production of waste-in lists and rankings is
generally beneficial, whenever practicable.
» -r. , . '. -
In the Management Review of Superfund (June, 1989) the
Administrator called for guidance to "ensure effective
information collection, information exchange, and enforcement of
information requests to encourage Potentially Responsible Party
(PRP) participation in the settlement process." The
recommendation emphasized the importance of a consistent approach
when releasing information to PRPs about the identity and
relative contributions of PRPs and the type and quantity of
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OSWER Directive 9835.16
wastes at a site, the latter of which, is referred to in this
guidance as "waste-in information,"
Because waste-in lists have proven a valuable tool in
initiating PRP negotiations and bringing about settlements, the
Agency is providing guidance to improve the process of
information gathering, waste-in compilation, and information
release to PRPs. Production of waste-in lists will vary widely,
depending upon the classes of PRPs (e.g., owner/operator vs.
multigenerator) and available information. Where sufficient
information is available, Regions should provide waste-in lists
to PRPs.
Increasingly, and particularly at large, complex Superfund
sites with multiple contributors, PRPs have been requesting EPA
to furnish them with waste-in information in order to reach a
settlement among themselves and with the Agency. This represents
a shift from past experience, where PRPs often preferred to
compile waste-in lists themselves. Whether 'EPA produces waste-in
information on a site, or chooses to use or adopt waste-in
information developed, at least in part, by PRPs must be a site-
specific determination reflecting the Region's or PRPs'
respective resources, willingness, familiarity with the site and
experience with transactional databases. Where PRPs compile
waste-in information, Regions must ensure that the information
meets the qualitative standards articulated in this guidance
before releasing it to other PRPs.
Often, Regions must rely heavily on information provided by
the PRPs through 104(e) responses in order to compile a waste-in
list or volumetric ranking. While Regions have broad discretion
in providing PRPs with supporting documentation, waste-in
information — when developed — should be sent to all identified
PRPs at a site, consistent with OSWER Directive 9835.12.
III. DEFINITIONS
The following "waste-in" terms are defined solely for
purposes of this guidance and are intended to assist Regions in
its implementation:
Waste-in Information - Information on the type and quantity
of hazardous substances at a facility. Waste-in information
includes waste-in lists and volumetric rankings.
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OSWER Directive 9835.16
Waste-in List - A listing of the volume and nature of
substances contributed by each PRP identified at a facility.
A waste-in list satisfies the information-release
requirements of CERCLA section 122(e)(1)(B).
Volumetrie Rank ing - A ranking of the hazardous substances
at a facility in descending volumetric order. A volumetric
ranking satisfies the information-release requirements of
; C1RCLA section 122(e)(1)(C).
Volumetric Ranking of PRPS - A ranking of PRPs on the waste-
in list in descending order of the total volume of hazardous
substances that they contributed to a facility. PRP
volumetric contribution is usually expressed as a percentage
• of the total volume of hazardous substances at the facility.
These rankings are sometimes referred to as "generator
rankings."
Non-BindingAllocation of Responsibility (NgAR) - A non-
binding preliminary allocation of responsibility prepared
pursuant to CERCLA section I22(e)(3) which allocates
percentages of the total cost of response among potentially
responsible parties at a facility.
Information Release - Distribution of waste-in and other
site information to the PRPs identified at a facility in
order to facilitate settlement between PRPs and the Agency.
TV.. • WASTE-IN LIST DEVELOPMENT AND INFORMATION RELEASE PROCESS
Waste-in list development and information release, can be
viewed as a five-part process. Part one is the PRP search. PRP
search activities focus on the development of evidence for 106
and 107 actions and on waste-in information for waste-in lists
and volumetric rankings. Part two is waste-in information
assessment, conversion, and compilation. This is the process
where waste-in information is converted into waste-in lists and
volumetric rankings. Parts three, four, and five concern the
dynamics of information release and exchange.
A} PRP Search
PRP search procedures include developing evidence for 106
and 107 actions as well as developing waste-in information for
waste-in lists and volumetric rankings (PRP Search Supplemental
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OSWER Directive 9835.16
Guidance for Sites in the Superfund Remedial Program, OWPE, June,
1989, OSWER Directive No. 9834.3-2a). The supplemental guidance
describes a two-phased process for conducting PRP searches and
outlines the format and content for remedial PRP search reports.
Although the following sections refer to remedial PRP searches,
the waste-in information development process described in this
guidance applies to both remedial and removal searches.
1) Baseline PRP Search
Phase one of a PRP search is called the baseline phase. Its
focus is primarily on establishing owner/operator.liability and
identifying generators and transporters associated with the site.
Baseline-phase activities usually include collecting records from
federal, state, and local government agencies; interviewing
current and past government officials; conducting a title search;
'[ and issuing section 104(e) information request letters to site
owners and operators. Typically, owner/operator transactional
records will be the only waste-in information that is developed
during the baseline phase. Although these may not provide a
complete waste-in picture, they will certainly provide a
significant number of leads that can be pursued during the
follow-up PRP search.
2) Follow-up PRP Search
The second phase of a PRP search is called the follow-up
phase. Its focus is on establishing generator and transporter
liability and developing waste-in information for waste-in lists
and volumetric rankings. Activities for the follow-up phase can
vary considerably from site-to-site depending on site complexity,
the number of generators and transporters associated with the
site, and the difficulties encountered with waste-in information
development. Follow-up PRP search activities usually include
issuing section 104(e) information request letters to generators
and transporters, interviewing PRPs and current and past PRP
employees, and conducting specialized tasks, as needed, which are
described in the gRj*^gearch Manual, OWPE, November, 1987, OSWER
Directive No. 9834.6.
In addition to the development of evidence for 106 and 107
actions, activities conducted during the follow-up PRP search
should focus on waste-in information for waste-in lists and
volumetric rankings. Often, the person who can provide
information on a PRP's liability can provide information on the
wastes that were sent to the site.
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OSWER Directive 9835.16
3) Waste-in Lists and PRP Search Planning
Regions should plan an information release strategy and
schedule when they are doing PRP search planning. The plan
should include a schedule for waste-in list preparation,
revision, and release. Important milestones for scheduling
include assessment of waste-in information, when to issue general
notice letters, a cut-off date for refining waste-in lists, and
whether to send out lists before or with special notice letters.
Where special notice is not invoked but Regions choose to produce
waste-in lists, a schedule detailing list compilation, revision,
and release is equally important to ensure that the information
'igets to PRPs in a timely manner.
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OSWER Directive 9835,16
unit in which to express volume. However, some sites such as
landfills may have large amounts of solid waste, trash, and other
hazardous substances coming in by weight, in which case pounds or
tons may be more appropriate. Where transactional records are
divided among liquid volumes and weights, Regions should convert
all volumes to a single standard using the equation 1 gallon =
8.33 pounds, unless more specific density information is
provided. Attachment 2 is a list of standard conversion factors
that can be used to convert volumes and weights to a common unit
of measurement.
3} Compilation
, a) Making Assumptions About Waste-in Information
In order to compile waste-in lists and volumetric rankings,
Regional staff may have to interpret ambiguous data and make
assumptions regarding waste-in information. When making
assumptions about waste-in information, Regions should generally
follow three broad rules:
o Assumptions should be defensible. Regions should use
established conversion standards and base assumptions
on patterns established in the data in order to avoid
charges of being arbitrary or capricious.
o State assumptions openly. When interpreting illegible
numbers on a manifest, or assuming a disposal
destination from an unclear hauling ticket, it is
preferable to let PRPs know where EPA made assumptions
and to identify where ambiguity still exists. The lists
are thus more credible and PRPs have the opportunity to
make their own corrections. Assumptions should be
reviewed bv Regional counsel to ensure that they do not
jeopardize a cost recovery case or other enforcement
action.
o Be consistent. PRPs involved at more than one site
within a single Region will be aware of any
discrepancies in the kinds of assumptions made for
waste-in lists at these sites, and disputes over
inconsistent assumptions only slow down the settlement
process. Regions should ensure that everyone compiling
waste-in information is using the same Region-wide set
of assumptions and compilation methodology. Some
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OSWER Directive 9835.16
inconsistencies mav be unavoidable, however, where
facts in separate cases differ significantly.
Based on Regional experience in preparing waste-in lists and
volumetric rankings, a list of generally accepted assumptions for
waste-in lists and volumetric rankings has been compiled in
Attachment 3.
' In many cases, Regions will have to make additional site-
specific assumptions about waste-in information to improve the
comprehensiveness of waste-in information and the willingness of
PRPs to negotiate. However, Regions should bear in mind that
assumptions that are not easily supported may have the effect of
f slowing down or thwarting the formation of a PRP negotiating
group while PRPs dispute EPA's numbers.
b) Who to Include on Waste-in Lists
Pursuant to CERCLA section 107(a), PRPs include generators
of a hazardous substance, transporters of a hazardous substance,
and owners or operators of sites where hazardous substances were
treated or disposed of. In general, generators are always
included in a waste-in list where evidence indicates they
contributed hazardous substances to a Superfund site.
Transporters should be included on waste-in lists when the
transporter - and not the generator - determined where the
hazardous substances were to be taken for treatment or disposal.
EPA interprets CERCLA sections 107(a)(4), 101(20)(B), and
101(20)(C) to exempt transporters from notice as PRPs where they
did not select the site or facility to which hazardous substances
were delivered (Policy for Enforcement Actions Against
ansuorters Under CERCLA. OSWER, December 23, 1985, OSWER
Directive No. 9829.0). The policy states that while all
transporters should be sent 104(e) information request letters,
only those transporters who appear to have selected the site for
hazardous substance disposal should be sent notice letters and
waste-in information.
While owner/operators may be PRPs and conseguently may be
jointly- and severally liable under CERCLA section 107, in most
cases they are not included on waste-in lists. Owner/operators
should be included on waste-in lists, however, where there is
evidence to suggest they also acted as a transporter or generated
waste at the site.
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OSW1R Directive 9835.16
C) Information Release with General Notice
To provide PRPs ample time to organize and develop a
reasonable offer to conduct or finance a response action, Regions
should issue a general notice letter (GNL) prior to issuing a
special notice letter (SNL) under section 122(e) for an RI/FS or
RD/RA. General notice letters should be sent to all persons
where there is sufficient evidence to make a preliminary
determination of potential liability under section 107. For more
information on general and special notice letters, see Interim
Guidance on Notice Letters, Negotiations, and Information
Exchange. OSW1R, October, 1987, OSWER Directive 9834.10.
In most cases. Regions should not expect to release waste-in
lists and rankings to FRPs vith general notice.letters issued
before an RI/FS. This is due to the fact that follow-up PRP
search activities are being conducted and complete waste-in
information has not yet been developed. General notice letters,
however, may include the names and addresses of PRPs to the
extent this information is available.
D) Refining and Revising Waste-in Lists and Volumetric
Rankings
If waste-in lists and volumetric rankings are released
before issuance of special notice letters, Regions should revise
and update this information prior to its release with special
notice letters to ensure that the information provided to the
PRPs is based on currently available data. The following
guidelines pertain to list and ranking revisions prior to
issuance of special notice letters, or prior to information
release where no special notice letter is sent for RI/FS or RD/RA
work:
o. Regions should not spend an unreasonable amount of time
on waste allocation. Waste-in lists and volumetric
rankings are intended to provide PRPs with contribution
information, but do not constitute EPA's final position
on PRP contributions or allocations.
o Regions should not spend unreasonable amounts of time
on waste character i 2 at ion• Where records give detailed
information on chemical compounds and hazardous
constituents, Regions should provide as much detail as
available in the waste-in list to help convince PRPs of
the strength of EPA's evidence and encourage them to
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OSWER Directive 9835.16
begin negotiating. However, where more detailed waste
information is not easily available, general waste
characterization should be sufficient at this stage in
the process.
o General termsfsuch as"waste oil" or "solvent", can be
descriptive enough for the purposes ofdemonstrating
PRP .contribution to a site, and for volumetric
r_a_njsjtn.c[s_. • The primary distinction in the information
release process is whether or not a substance is
hazardous, and, therefore, should be counted in the
ranking and waste-in attribution.
The Regions should bear in mind that the time available for
waste-in information revisions will be restricted by the target
special notice date and PEP requests for waste-in information
Bunder section I22(e)(i).
E) Information Release with RI/FS or RD/RA Special Notice
Special notice letters are used to initiate a formal period
of negotiations with PRPs and to invoke the statutory moratorium
on section 104 and 106 actions. Special notice can be given
prior to the conduct of the RI/FS or RD/RA, in which case PRPs
are encouraged to conduct or finance these response .activities.
Along with the special notice letter, the Agency releases to the
PRPs the names and addresses of all PRPs, the volumes and types
of substances sent to the site by each PRP, and the volumes of
all substances present at the site. To the extent such
information is available, it must be released with the special
notice letter.
If waste-in information is not available for RI/FS special
notice, the information-release requirements of section 122(e)
can be met by releasing the names and addresses of PRPs and other
information in our possession relating to the volume and nature
of substances. RD/RA special notice must be accompanied by
waste-in information, to the extent it is available. fInterim
Guidance on Notice Letters. Negotiations, and Information
Exchange. OSWER, October, 1987, OSWER Directive 9834.10, and
Releasing Information to PotentiallyResponsible Parties at
CERCLA Sites. OSWER, March, 1990, OSWER Directive 9835.12).
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OSWER Directive 9835.16
V. GENERAL CONSIDERATIONS FOR RELEASING WASTE-IN INFORMATION
The following are general guidelines on what to consider
when releasing waste-in information to PRPs:
1. Always include a disclaimer when releasing waste-in
information toPREs. Waste-in information is not equivalent
to a nonbinding preliminary allocation of responsibility
(NEAR) or cost allocation; emphasize this in the disclaimer.
Similarly, it is important to emphasize the preliminary (and
hence incomplete) nature1of waste-in information. Regions
should include the following disclaimer when releasing
waste-in information to PRPst
"This information does not constitute a non-binding
preliminary allocation of responsibility under CERCLA
section 122(e)(3), This information should not be construed
as an allocation of responsibility or liability by EPA.
This waste-in list and volumetric ranking is provided solely
for your information. This list is preliminary and subject
to revisions based upon new information as, and if, it
becomes available."
2. When releasing waste-in information to PRPs. Regions should
openly state assumptions made when compiling the lists and
rankings. Where records are less than complete, assumptions
typically must be made about volumes and weights, conversion
factors, waste characterization and shipment and disposal
destinations. By stating assumptions openly, and by
identifying uncertainties in a list or ranking, PRPs will
have better information upon which to judge the accuracy of
waste-in information, to revise lists themselves, and to
base allocation among themselves — all of which can
facilitate settlement. Assumptions should not, however,
jeopardize a cost recovery case or other enforcement
actions.
Because the lists are not binding and do not serve as
preliminary allocations of responsibility or liability, PRPs
should not be able to successfully challenge waste-in
information, although many will undoubtedly dispute EPA's
rankings and volumetric attributions. Additionally.
should always state that the burden is on the. PRP_s_J;p
demonstrate where IPA's assumptions are incorrect.
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OSWER Directive 9835.16
3. There are some limits on information release. Any
information, such as supporting documentation, that; Regions
release to PRPs beyond what is statutorily required under
section 122(e)(l) is at the discretion of the Region. When
available, however, waste-in information that falls outside
the scope of I22(e)(i) may be subject to certain
limitations. For example, information that is identified in
a section 104(e) information request response as
Confidential Business Information (CBI) should not be
released with special notice unless permitted by 40 CFR Part
2 and/or required by section 104(e)(7). Information release
may also be governed by FOIA, which includes a number of
exemptions and privileges such as the attorney-client
privilege. (See OSWER Directive 9835.12).
""4. Where hundreds of PRPs are identified at a Superfund site.
Regions may prefer to distribute waste-in lists and rankings
to PRFs through an J.nf ormation meeting. Experience has
shown that meetings are useful for bringing large numbers of
PRPs together where they can meet and form a bargaining
committee. Presenting waste-in information to PRPs at a
meeting also may encourage reluctant PRPs to begin
negotiations.
5. Correcting inaccuracies and producing new lists. In
general, if PRPs are willing to make corrections and
incorporate new information themselves, and settlement will
not be delayed by this work, it is preferable to let PRPs
rework the lists themselves. However, where substantial new
numbers of PRPs or new site-related waste information comes
to light through information request responses or other
channels, Regions may wish to revise waste-in lists
themselves where such revision would expedite settlement and
limit internal debate among negotiating PRPs. In general,
Regions should only issue a revised list once between the
RI/FS and RD/RA stages.
6. Regions should avoid plavina the role of referee in PRP
disputes over waste—in information and respective
allocations. PRPs will often ask IPA to moderate disputes
over contributions and allocations, preferring EPA as a
"neutral" voice over that of the PRP steering committee or
rival PRP factions. In many cases pressure will be put on
EPA to step in and moderate disputes between large and small
PRPs, or where small PRPs are trying to assert de minimis
status.
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OSWIR Directive 9835.16
Due to resource implications, Regions should not become
overly concerned with internal PRP allocation issues, even
when smaller contributors may claim coercion from larger
contributors. Regions might consider involvement in
allocation questions, however, when they appear to
jeopardize the likelihood of.settlement. Small contributors
may be eligible for a de minirois settlement. (Guidance on
Landowner Liability Under Section 107(a)(1) of CERCIA. De
Minimis Settlements Under Section 122foUlHB> ,of CERCLA.
and Settlements with Prospective Purchasers of Contaminated
Property. OSWER, June 6, 1989, OSWER Directive 9835.9).
7. EPA should inform FRP groups that viable PRPs will have to
absorb orphan shares. Many waste-in lists are characterized
by unattributable volumes and hazardous substances. Where
lists and rankings contain these "orphan11 shares, Regions
should encourage PRP negotiating groups to absorb these
shares and apportion the shares as part of the internal
allocation process.
VI. FORMAT AND CONTENT OF WASTE-IN INFORMATION
For the sake of illustration, waste-in lists and volumetric
rankings are discussed in this section as separate documents,
even though the information could very easily be combined into a
single document that also includes the names and addresses of
PRPs.
A) Waste-in Lists [CERCLA section 122(e)(1)(B)]
Waste-in lists contain the volume and nature of substances
contributed by each PRP identified at a facility. At a minimum,
the lists should contain columns for the names and addresses of
PRPs as well as the types and volumes of hazardous substances.
Although EPA is under no statutory obligation to release
information beyond this in a waste-in list, Regions should
release supplemental waste-in list information unless there are
countervailing legal, policy, or strategy reasons not to do so.
(See OSWER Directive 9835.12). Supplemental waste-in information
can include, but is not limited to, the dates of shipments, the
names of transporters, the types of evidence from which waste-in
lists were derived, and comments to clarify assumptions,
ambiguities, and double-counts. Attachment 4 is a waste-in list
that contains supplemental waste-in information.
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In some situations, it may be advantageous to prepare
separate waste-in lists for generators and transporters. Where
most PRPs at a site are generators, waste-in lists should be
organized by generator, with a column provided for listing the
transporter of each shipment in order to link the generator to
the site. Where there are multiple transporter PRPs, it may be
advisable to prepare separate waste-in lists for generators and
transporters. [See discussion under paragraph D) below].
B) Volumetric Rankings of Substances at a Facility [CIRCLA
section 122(e)(1)(c)]
CERCLA also requires that special notice recipients be
provided with a volumetric ranking of hazardous substances at the
facility, to the extent such information is available. This
ranking lists hazardous substances and their respective volumes
in descending volumetric order. It can be developed from waste-
in list information.
C) Volumetric Rankings of PRPs
The statute does not require the release of_«volumetric PRP
rankings", sometimes referred to as generator rankings, with
special notice; however, several Regions release information to
PRPs in this format because they feel it provides a logical
starting point for negotiations. Volumetric rankings of PRPs
rank the PRPs on the waste-in list in descending order of volume
and express their contributions as a percentage of the total
volume of hazardous substances at the facility. Regions should
bear in mind and convey to the PRPs that waste-in information
provided with special notice is intended as an estimate of
individual PRP contributions, and is neither definitive nor
binding in any way. It is intended solely as information to
facilitate settlement agreements between PRPs and the Agency.
Where there is insufficient information to convert volumes
into a single unit of measurement, Regions may provide a
volumetric ranking using raw data from records in unconverted
form. PRPs can then choose to clarify ambiguities concerning
volumes or substances themselves in order to produce a better
list upon which to negotiate.
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D) Accounting for Commonly Contributed Volumes
Where hazardous substances are contributed both by the
generator and the transporter who designated the treatment or
disposal site, Regions should attribute the volumes to both
parties when compiling waste-in information. EPA shpul
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OSWER Directive 9835.16
with little or no documentation, solvent recycling/ transshipment
sites and, briefly, lead-battery sites and mining sites.
A) Municipal Landfills
Landfills are notoriously difficult sites for producing
waste-in information, both because of poor record-keeping
practices and because of the mixture of different wastes disposed
there. Many Regions do not even attempt compiling waste-in
information for landfills. However, because of the importance of
waste-in information in bringing about negotiations, Regions
should at least assess whether waste-in lists and volumetric
rankings could be developed, particularly where records exist and
where interviews can provide good supplemental information on
truck routes, generators and shipment volumes.
In many instances, most of the wastes in a municipal
landfill are not hazardous substances and do not belong in a
waste-in list or volumetric ranking. The Interim Policy on
CERCLA Settlements Involving Municipalities and Municipal Wastes
{OSWER Directive 9834.13) provides that generators and
transporters of municipal solid waste or sewage sludge generally
will not be notified as PRPs unless evidence shows that the waste
or sludge contains a hazardous substance, and that hazardous
substance came from a commercial, industrial or institutional
process or activity. Generators and transporters of commercial
trash, however, generally are notified as PRPs unless they can
demonstrate that none of the hazardous substances contained in
the trash are derived from a commercial, institutional or
industrial process or activity, and that the amount and.toxicity
of the hazardous substances do not exceed the amount normally
found in common household trash. From this policy, Regions
generally should not include municipal solid wastes in waste-in
lists or volumetric rankings except where evidence suggests that
the waste or sludge contains a hazardous substance, and that
hazardous substance came from a commercial, industrial or
institutional process or activity. Further, unless PRPs can
demonstrate otherwise, Regions generally should include trash
from commercial, institutional and industrial entities in waste-
in calculations.
All generators, transporters and owner/operators involved at
a municipal landfill site usually should still be sent Section
104(e) request letters to provide Regions with as much
information and documentation on the site as possible. Regions
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should only send notice letters, waste-in lists, and volumetric
rankings to those identified as PRPs.
Regions should also compare information they have gathered
at a landfill site with information on PRPs and hazardous
substances at other Superfund sites in the area. In some
instances, the same transporters who shipped hazardous substances
to nearby facilities or Superfund sites may have also shipped
substances to the municipal landfill. Interviews and civil
investigations of nearby industries and commercial entities may
provide information that can link hazardous substance shipments
from these entities to a municipal landfill, particularly where
transactional records show that hazardous substance shipments did
not reach a designated RCRA facility for disposal.
B) Removals
Host removal sites are not good candidates for compiling
waste-in information since they require clean-up action sooner
than the time it would take to produce waste-in lists. Non-time-
critical removal sites, with a planning process of six months or
more, are the only sites for which waste-in lists and rankings
should be considered. Where adequate transaction documentation
exists and settlement seems possible, Regions should prepare
waste-in lists and rankings as described in section 122(e)(l) for
release to PRPs.
As with remedial sites, Regions should begin preparing a
schedule for waste-in list and ranking compilation, revision and
release during the early stages of the PRP search. Because
removals proceed at an accelerated rate, it is important to start
waste-in preparation early, spend less time fine-tuning lists and
rankings, and release the information to PRPs as early as
possible. Regions should notify PRPs of their potential
liability orally, followed by a confirming written notice, or
through a general notice letter. Information on the identity of
other PRPs at a site, and evidence on individual contribution,
should be sent out with this written notice. Where a special
notice letter is.sent, waste-in lists and rankings should be sent
out with or before the special notice letter. Where no special
notice letter is sent, Regions can either send waste-in lists and
rankings through a separate mailing between the general notice
and the beginning of the removal action, or distribute the
information at a meeting of PRPs during that time. Where a
removal site involves large numbers of PRPs, Regions may prefer
to distribute waste-in information at a central meeting as they
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might for a remedial site. For more information on notifying
PRPs at a removal site, see Chapter V of the Superfund Removal
Procedures Manual, and Interim Guidance on Notice Lettersf
Negotiationstand Information .Exchangef OSWER, October, 1987,
OSWER Directive 9834.10.
Regions should initiate information gathering and document
retrieval very early, and move quickly to retrieve site documents
that might 'otherwise be destroyed during removal activities.
Regions should make special arrangements to gather evidence at
sites vhere documents are contaminated and cannot be collected in
a normal information-gathering operation. These special
arrangements could include photographing contaminated documents.
C) Sites with no Records or Poor Records
Where preliminary baseline records collection during the PRP
search fails to yield good site or transactional records, Regions
should not abandon the idea of compiling volumetric rankings or
waste-in lists. A number of Regions have succeeded in locating
missing records or new PRPs, and in supplementing weak
documentation by persisting in their information gathering
through alternate sources, or using civil investigators and eye-
witness accounts. In general, where site records are inadequate
to produce waste-in lists and rankings but where such information
would enhance the possibility of reaching a settlement, Regions
should consider using other avenues to gather information on a
site. -These include:
o ciyj.1 Investigators, who can be used for tracking down
withheld records, identifying new PRPs who may have
documentation, interviewing witnesses whose accounts
can lead to new information and new PRPs, and
clarifying incomplete documentation;
o Supplemental 104fel Information Request Letters, which
can be used to request further information, clarify
existing information, or be sent to new PRPs discovered
through prior 104(e) letter responses (see guidance on
«£ Use and Enforcement of CERCLA InformationRequests and
-~ Administrative Subpoenas. OECM, August, 1988, OSWER
Directive 9834.4-A). Supplemental request letters can
be sent out at any time during the remedial or removal
process, but are most useful for the purpose of
compiling waste-in information if sent before the
special notice letter and moratorium; and,
17
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OSWER Directive 9835.16
o Administrative Subpoenas, as provided in CERCLA section
122(e)(3)(B), which are available to Regions "to
collect information necessary or appropriate" for
performing a preliminary non-binding allocation of
responsibility or "for otherwise implementing this
section,11 including preparation of waste-in information
under section 122(e)(i). Administrative subpoenas,
whose use is encouraged in the Administrator's
Management Review of Superfund, June, 1989, provide
Regions with an additional enforcement tool for
deposing witnesses and collecting "reports, papers,
documents, answers to questions, and other information
that the President deems necessary." (guidance on Use
and Enforcement of CERCLA Information Requests ajd.
Administrative Subpoenasf OECM, August, 1988, OSWER
Directive 9834.4-A).
D) Solvent Recycling and Other Transshipment Sites
Solvent recycling and other transshipment sites are often
characterized by operations that make it difficult to compile
accurate waste-in information, even though good transactional
records may exist. Transshipment activities usually involve the
temporary storage of hazardous substances prior to off-site
shipment for treatment or disposal. Recycling activities
typically involve the recovery and sale of "pure" products from
spent solvents and waste oils.
Regions may encounter difficulties when compiling waste-in
list volumes for solvent recycling and transshipment sites.
Unless records indicate clearly what percentage of incoming
substances were shipped off-site as pure product or as
temporarily stored substances, Regions should include all
incoming wastes in both volumetric rankings and waste-in lists,
and put the burden on PRPs to demonstrate that hazardous
substances left the facility and in what quantities.
Where all hazardous substances were brought to a central
site and then shipped to subsequent disposal sites, Regions may
find it easier to create a main transactional database for the
central site and subcategories for each disposal site within the
main database, or create separate lists for each site. Again,
the purpose of waste-in information is not to produce an exact
allocation of substances contributed by each PRP, but an
18
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OSWER Directive 9835.16
approximate ranking by volume that PRPs can use to determine an
appropriate allocation among themselves.
Hauler records will often provide good information on which
hazardous substances were brought to a facility; they are not
always as clear, however, on what substances left that facility,
particularly when different transporters are involved. Hauler
records used in conjunction with a site log provide a good means
to chart the inflow and outflow of hazardous substances from a
site. Where transporter records indicate hazardous substances
were shipped to a certain site, Regions should assume the
documentation is correct unless PRPs can demonstrate otherwise.
Similarly, where generators' shipments were known to have been
sent to different sites, Regions should assume on a preliminary
basis that the destination recorded on the transporter ticket is
correct.
Hazardous waste recycling facilities operated after 1980
should have RCRA manifest documentation, although manifests are
not always reliable and not always kept for three years (or
longer) as required under RCRA 40 CFR section 263.20. Recycling
sites operated prior to 1980 are less likely to have good site or
transactional records. Where a recycling facility has been in
operation before and after 1980, recent RCRA manifests may
provide clues to pre-1980 site operations, including end
products, incoming shipment volumes and substances, and disposal
patterns on site.
E) Lead Battery Sites
Sites run as lead-recycling operations where automotive
batteries are cracked open to capture reusable lead electrodes
often produce hazardous substance contamination through
improperly disposed sulfuric acid. These sites, along with
transformer recycling sites contaminated by PCBs, are notoriously
difficult for producing waste-in information. Documentation is
often poor to nonexistent, and volumes are extremely difficult to
determine. Regions face difficult questions about how far up the
waste-stream to go after PRPs. Where site records and
transactional records are reliable and available, Regions should
try to produce waste-in information. In most cases, Regions
probably will not have such documentation.
li
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OSWER Directive 9835.16
F) Mining Sites
Abandoned mining sites or sites contaminated by mining
overburden also frequently may pose difficulties for producing
waste-in information. This is due to the fact that documentation
is rarely available; PRPs are often no longer in business,
insolvent or untraceable; calculating volumes can be extremely
difficult due to the large volume of wastes; and under RCRA [40
CFR 261.4(b)(3)], certain mining wastes are exempt as RCRA
hazardous wastes and therefore may not be CERCLA hazardous
substances (unless some other basis exists for defining the
material as a hazardous substance under CERCLA section 101(14)).
Municipalities may keep records on land ownership or mining
leases, and occasionally record annual tonnage and profit figures
for individual mines. Even these records, however, may require
major assumptions on the amounts of waste produced per ton of
mined product. In general, unless documentation is good and
viable PRPs can be found, Regions should not attempt compiling
waste-in information for mining sites.
20
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OSWER Directive 9835.16
WASTE-IN LIST
DECISION GUIDELINE
Attachment 1
ere hazardous substances
brought in to the site (as
posed to generated on-site)?
Was there more than one
generator or transporter?
Don't do lists
YES
Consider expanding sources:
o Supplemental 104(e) Letters
o PRP/Private party interviews
o Administrative subpoenas
Are there good transactional
records or site records
available?
Are alternative sources sufficient
to produce waste-in list?
Do Lists Now
Release what information is available; limited
rankings or waste-in information, names and
addresses of PRPs only.
or,
Accept that sufficient information isn't available and
stop.
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Attachment 3
OSWER Directive 9835.16
GENERALLY ACCEPTED WASTE-IN LIST
AND VOLUMETRIC RANKING ASSUMPTIONS
The following is a partial list of reasonable assumptions
which may be appropriate when preparing waste-in information:
o A 55~ciallon drum or any other container of hazardous
substances for disposal was full when it was shipped
and when it was disposed. Unless a shipping or
disposal record unambiguously indicates otherwise,
either because the recorded volume is less than that of
the full container volume, or the price is less than
that normally charged for a full container, the burden
of proof is on the PRP to show that a container was
less than completely full.
o Anything labeled a "coyroBive* without additional
explanation or identification is hazardous and should
be included in volumetric and vaste~in JLJsts.
"Corrosives" are regulated as hazardous waste under 40
CFR 261.22 of RCRA. The burden is on the PRP to
demonstrate why a substance labeled "corrosive" did not
meet the definition in CERCLA of a hazardous substance.
o The destination listed on a_manifest_orother
transactional record is cgr/reclfe. The burden is on the
PRP to show that a shipment of hazardous substances
recorded as sent to one destination was not in fact
sent there. Regions may want to scrutinize
transshipment site records particularly closely, since
hazardous substances are shipped to, as well as from,
these sites. Where records clearly indicate that
hazardous substances were removed from a site, Regions
can factor this information into waste-in lists and
volumetric rankings. Where records are less clear,
Region should include all wastes as sent to the site
and put the burden of proof on PRPs to demonstrate that
hazardous substances left the site. Where Regions make
assumptions about destinations, they may want to state
them openly in appropriate circumstances.
-------
Attachment 2
OSWIR Directive 9835.16
STANDARD CONVERSION FACTORS FOR
WASTE-IN LISTS AND VOLUMETRIC RANKINGS1
1 truckload = 74 drums
I drum =55 gallons
1 barrel = 55 gallons
1 gallon =8.33 pounds
1 pail = 5 gallons ,
1 ton = 2,000 pounds
1 metric ton = 2,204 pounds
1 ton = 250 gallons
1 liter « 0.264 gallons
1 cubic foot = 7.482 gallons
1 cubic yard = 202.018 gallons
V ' / 1 box » 1 gallon
\ 1 tank truck «= 4,500 gallons •
«\
1 pound = 1 pint = 0.125 gallons
In addition, asbestos ceiling tile is assumed to be 1 inch
thick. One square foot is therefore assumed to •» 0.6233 gallons.
Where volumes indicated on transactional records are
unclear, such as "pallet," "wheelbarrow," "box car," Regions
should try to corroborate assumptions or estimates of volumes
through" interviews, alternate sources of records, or site-log
information. Where there is no corroborating evidence, Regions
should include their best estimate of the volume and indicate it
is an estimate.
1Tank trucks and drums come in several different sizes and
Regions should check waste-in documents carefully to ensure that
the correct conversion factor is used.
-------
Attachment 3
OSWER Directive 9835.16
Commercialf industrial or institutional trash is
hazardous and should be included in waste-in lists and
volumetric rankings unless PRPs can demonstrate
otherwise. The Interim CERCLA Municipal Settlement
Policy (OSWER Dir. 9834.13) provides that generators
and transporters of trash from a commercial, industrial
or institutional entity generally will be notified as
PRPs unless they can demonstrate that none of the
hazardous substances contained in the trash are derived
from commercial, industrial or institutional processes
or activities, and where the amount and toxicity of
those hazardous substances are not above the level
commonly found in household trash. Where EPA is
compiling the lists, it is better to include industrial
trash as hazardous, and let PRPs make necessary
revisions afterwards. On the other hand, the Interim
CERCLA Municipal Settlement Policy indicates that
generators and transporters of household trash
generally will not be notified as PRPs.
Anything labeled "solvent" is hazardous, and should be
included in waste—i^n and volumetric lists. In many
cases, labels on drums will describe hazardous
substances generically and not include information on
specific compounds. Regions should make reasonable
efforts to find other evidence to corroborate the
hazardous nature of a substance, where possible.
Where hazardous and nonhazardo*]** ^i^ai'-aytces are nixed
together, the mixture is considered hazardous and
should be included in its entirety on waste-in and
volumetric lists. Solid wastes, when mixed with one
or more hazardous wastes, are considered a RCRA
hazardous waste as described in 40 CFR sections
261.3(a)(2)(iii) and (iv), except where the waste was a
characteristic waste and no longer exhibits any of the
characteristics of a hazardous waste or where it has
been excluded as a hazardous waste in 40 CFR 261.3.
Under CERCLA, where there is mixing of hazardous and
nonhazardous substances during transport or disposal,
the combination would be subject to CERCLA if it still
contains a hazardous substance.
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