Improved Procedures for Facility/Site Transfers Between RCRA Hazardous Waste Cleanup and CERCLA Cleanup Authorities


OFFICE OF LAND AND EMERGENCY MANAGEMENT

WASHINGTON, D.C. 20460

OLEM Directive #9932.2

MEMORANDUM

SUBJECT:

FROM:

Improved Procedures for Facility/Site Transfers Between RCRA Hazardous Waste
Cleanup and CERCLA Cleanup Authorities

Carolyn Hoskinson, Director

Office of Resource Conservation and Recovery



Digitally signed by
CAROLYN HOSKINSON

'/)	Date: 202412/18

Larry Douchand, Director

Office of Superfund Remediation and Technology Innovation

16:04:17 -OS'OO'

LARRY
DOUCHAND

Digitally signed by LARRY
DOUCHAND
Date: 2024.12.19
14:07:24-05'00'

TO:

Land, Chemicals, and Redevelopment Division Directors, Regions 1-10
Superfund and Emergency Management Division Directors, Regions 1-10

PURPOSE

This memo and the attached appendix titled "Improved Procedures for Facility/Site Transfers Between
RCRA Hazardous Waste and CERCLA Cleanup Authorities," describe updated procedures for processing
program transfers of facilities/sites between the Resource Conservation and Recovery Act Hazardous
Waste Cleanup Program (formerly known as the Corrective Action Program) and the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) Program.1 The updated
procedures, which include documenting and tracking transfer-related information in both RCRAInfo
and the Superfund Enterprise and Management System (SEMS),2 will help ensure that facilities/sites
transferred between these programs follow a consistent and complete process. The updated process
will enable program managers to accurately identify a facility/site's administrative program
management lead, transfer status in real time and improve overall program management at the state,
regional, and national levels.3

'This guidance is designed to implement national policy for these procedures and does not substitute for RCRA, CERCLA, or EPA's regulations; nor is it a
regulation itself. Thus, it cannot impose legally binding requirements on EPA and may not apply to a particular situation based upon the circumstances.

2	These procedures supersede those described in OSWER Directive 9200.1-31P, "Interim Guidance in Response to the OIG Audit "Superfund Sites Deferred
to RCRA," December. 6, 1999; Elizabeth Cotsworth and Stephen Luftig. Available

at https://rcrapublic.epa.gov/files/14960.pdf and https://semspub.epa.gov/work/HQ/190119.pdf.

3	Section 3006(b) of RCRA, as amended, allows EPA to authorize state hazardous waste management programs. Authorized state programs assume
primary responsibility for implementing the RCRA hazardous waste program in lieu of EPA. Authorized state programs are codified in 40 CFR part 272.

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BACKGROUND

This memo stems from recommendations included in the March 2021 U.S. Environmental Protection
Agency's Office of Inspector General (OIG) report titled EPA Does Not Consistently Monitor Hazardous
Waste Units Closed with Waste in Place or Track and Report on Facilities That Fall Under the Two
Responsible Programs (Report 21-P-0114). In that report, the OIG recommended the Office of Land and
Emergency Management (OLEM) develop and implement controls to verify that RCRA referrals to the
Superfund program and Superfund deferrals to the RCRA hazardous waste cleanup program are
properly transferred and tracked in respective program databases for further attention. The provisions
outlined in this memo build upon OLEM's response to the OIG's recommendations by adding additional
notification, documentation, and database tracking steps to the transfer process and by establishing a
standard six-month timeframe to complete the process.

IMPLEMENTATION

Terms

To reduce confusion and promote consistency, program implementers should use the terminology
defined and used in this memo when processing a transfer. When referring to a facility transfer from
the RCRA Hazardous Waste Cleanup Program to the federal Superfund Program, the term refer should
be used. A site transfer from Superfund to RCRA should use the term defer. The term originating
program refers to the program under whose authority a facility/site is currently being addressed while
the receiving program refers to the program that, if the transfer request is approved, will take over as
the facility/site's program lead going forward.

Applicability

As of this document's issuance date, all procedural and code changes identified are limited in scope to
prospective facility/site transfers between federal- or state-implemented RCRA Hazardous Waste
Cleanup programs and the federal Superfund program. Further, these updated procedures apply to
non-federal facilities with a potential risk that are referred from RCRA to Superfund for a CERCLA pre-
remedial site assessment and to NPL-eligible sites deferred from the Superfund pre-remedial program
to the RCRA Hazardous Waste Cleanup program pursuant to the agency's current NPL/RCRA Deferral
Policy.4 These procedures are not retroactive and do not apply to federal facilities. They also do not
apply to sites subject to: (1) current Superfund removal assessment or response or (2) remedial
response through a Superfund NPL or non-NPL (e.g., Superfund Alternative) cleanup approach. These
procedures do not describe or recommend any changes to program management procedures, policies
or decisions that may occur before or after the program transfer.

Updated RCRA-to-Superfund Referral Process

The decision by the RCRA Hazardous Waste Cleanup Program to refer a facility to the Superfund
Program for pre-remedial site assessment should be preceded by an informal inquiry, research, and
discussion between regional RCRA and Superfund staff regarding the potential referral. Regional RCRA
program managers should work with their state RCRA program counterparts to ensure that the

4 The current NPL/RCRA Deferral Policy is described at 54 FR 41004 (October 4,1989), see pp. 41004-41006.

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updated steps in the transfer process are completed for state-led sites. Staff are encouraged to check
both RCRAInfo and SEMS for existing data and any available records during this step.

Upon determining a proposed referral to Superfund is needed to address a potential risk, the regional
RCRA branch manager should send written notification of the proposed referral along with all relevant
facility information to the appropriate Superfund branch manager for review. After confirming receipt
of the proposed referral, the Superfund branch manager or their staff should review the referral
package and determine whether the proposed action is appropriate and supported by existing CERCLA
authorities. The Superfund branch manager should notify the referring RCRA branch manager in
writing of the decision to accept or decline the program transfer. A decision to decline the transfer
should include a rationale for declining the referral. Both the RCRA and Superfund programs should
document and track the notification of the proposed referral facility/site in RCRAInfo and SEMS,
accordingly.

The referral action is incomplete until the RCRA program receives a formal written response from the
Superfund program. If the Superfund program accepts the referral, the facility becomes a Superfund
Program-led site. A new SEMS site record should be created as necessary, and, when possible, the
Superfund program should adopt the RCRAInfo Handler ID of the transferred facility as the SEMS EPA
ID. This approach will facilitate the cross-walking of sites/facilities between programs.5 If the Superfund
program declines the referral, RCRA will remain the facility's program lead.

The written notification of a final decision on the proposed referral (accepted or declined) should be
maintained in site records within each program. The transfer decision should be entered into both
SEMS and RCRAInfo once these systems are updated to track this information.

See Figure 1 in the appendix for a visual representation of this process.

Updated Superfund-to-RCRA Deferral Process

Similar to the RCRA-to-Superfund referral process, a decision by the Superfund program to defer an
NPL-eligible site (Preliminary Assessment or subsequent assessment with a preliminary Hazard Ranking
System score at or above 28.5) to the RCRA Hazardous Waste Cleanup Program per the Agency's
NPL/RCRA Deferral Policy may be preceded by informal inquiry, research, and discussion between
regional Superfund and RCRA staff regarding the potential deferral. Staff are encouraged to check both
SEMS and RCRAInfo for existing data and any available records during this step.

Upon concluding that a proposed deferral to RCRA is needed to address a potential risk, the regional
Superfund branch manager should send written notification of the proposed deferral along with all
relevant site information to the appropriate RCRA branch manager for review. The RCRA branch
manager should confirm receipt of the proposed deferral with the Superfund branch manager. The
Superfund and RCRA programs should document and track the notification of the proposed deferral in
SEMS and RCRAInfo, accordingly.

Once the RCRA branch manager or their designated staff review the relevant information for the
proposed deferral and evaluate its appropriateness and whether existing RCRA authorities support a

5 Transfer proposals may involve new facility/site transfers as well as facilities/sites that have previously been transferred between the RCRA and
Superfund programs.

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deferral6 the RCRA branch manager should notify the deferring Superfund branch manager in writing
of the decision to accept or decline the program transfer. A decision to decline the transfer should
include a rationale for declining the deferral7 and should not contradict the requirements described in
the agency's current NPL/RCRA Deferral Policy. The deferral action is incomplete until the Superfund
program receives a formal written response from the RCRA program. If the RCRA program accepts the
deferral, RCRA becomes the designated lead program for the facility. A new RCRAInfo facility record
should be created as necessary. If the RCRA program declines the proposed deferral, Superfund will
retain program lead for the site.

The written notification of a decision on the proposed deferral (accepted or declined) should be
maintained in site records within each program. The site decision should be entered into both
RCRAInfo and SEMS once these systems are updated to track this information. Throughout the deferral
process, EPA RCRA staff should coordinate with their authorized state counterparts, if applicable, to
establish which office will serve as the lead on subsequent work at the facility.

Throughout the transfer process ORCR Cleanup Programs Branch staff and OSRTI Site Assessment and
Remedy Decisions Branch staff are available to provide support or consultation to regional staff as
requested.

Timeline for Processing Proposed Transfers

The 1999 "Interim Guidance in Response to the OIG Audit 'Superfund Sites Deferred to RCRA'" clarifies
that regions must establish timeframes for performing deferral approvals. Consistent with that
guidance, and to prevent cleanups from languishing in the transfer process, the programs should aim
to complete the steps described in this memo within six (6) months of the initial proposed transfer
action. The date of the originating program's transmission of written notification to the receiving
program establishes the beginning of the six-month period.

Database Reporting Requirements and Related Updates

RCRA and Superfund program representatives should document transfer decisions and related records
in written (electronic) form. Headquarters staff will make RCRAInfo and SEMS database changes and
develop data entry guidance as necessary to support tracking these new transfer steps to clearly
identify which program has current administrative lead in the transfer process. Regions should
continue to use existing RCRAInfo and SEMS procedures to track referrals and deferrals until the
databases are updated to accommodate the more detailed transfer process. Once database changes
are implemented, the RCRA and Superfund programs should update site information as soon as
possible in RCRAInfo and SEMS after completing each step in the decision-making process and upload
all pertinent transfer-related documents for future reference.

6 Various RCRA cleanup authorities may be applicable, depending on site-specific facts. Generally, a proposed deferral site that could be cleaned up using a
non-RCRA state cleanup authority could be a candidate for a different CERCLA referral process known as "Other Cleanup Activity-State Lead Cleanup".

7 For example, in the event of a bankruptcy orsimilarfinancial assurance concern which would result in the inability or unwillingness of the
owner/operator to pay for addressing contamination at the site, the RCRA and Superfund programs may concludethat deferral is not a desired course of
action.

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CONCLUSION

Thank you for your attention to these updated procedures. We believe their implementation will help
ensure that facilities/sites transferred between RCRA and CERCLA authorities will follow a consistent
and complete process, leading to improvements in the programs' overall programmatic management
at the state, regional, and national levels. Our offices stand ready to help facilitate the updated transfer
process; to that end, please contact the Cleanup Programs Branch in the Office of Resource
Conservation and Recovery or the Site Assessment and Remedy Decisions Branch in the Office of
Superfund Remediation and Technology Innovation with questions or concerns.

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