United States      Solid Waste and     EPA530-F-98-026
        Environmental Protection  Emergency Response   October 1998
        Agency        (5305W)        www.epa.gov/osw
&EPA Management of
        Remediation Waste
        Under RCRA
             printed on paper that contains at least 20 percent postconsumer fiber

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                                    October 14, 1998
MEMORANDUM
SUBJECT:  Management of Remediation Waste Under RCRA

TO:         RCRA/CERCLA Senior Policy Managers
             Regional Counsels

FROM:      Timothy Fields, Jr., Acting Assistant Administrator for
             Solid Waste and Emergency Response /signed/

             Steven A. Herman, Assistant Administrator for
             Enforcement and Compliance Assurance /signed/
       Rapid clean up of RCRA corrective action facilities and Superfund sites is one of the
Agency's highest priorities.  In this context, we often receive questions about management of
remediation waste under the Resource Conservation and Recovery Act (RCRA).  To assist you in
successfully implementing RCRA requirements for remediation waste, this memorandum
consolidates existing guidance on the RCRA regulations and policies that most often affect
remediation waste management.  We encourage you to work with the regulations, policies and
approaches outlined in this memorandum to achieve our cleanup goals as quickly and efficiently as
possible.

       Note that not all remediation wastes are subject to RCRA Subtitle C hazardous waste
requirements. As with any other solid waste, remediation wastes are subject to RCRA Subtitle C
only if they are listed or identified hazardous waste. Environmental media are subject to RCRA
Subtitle C only if they  contain listed hazardous waste, or exhibit a characteristic of hazardous
waste.  These distinctions are discussed more completely below.

       The information in this memo is divided into three categories: information on regulations
and policies that apply to all  remediation waste; information on regulations and policies that apply
only to contaminated media; and, information on regulations and policies that apply only to
contaminated debris. Most of the references cited in this memo are available over the Internet.
The Federal Register notices published after 1994 are available at www.access.gpo.gov/nara; the
guidance memos and other EPA documents are available at www.epa.gov/correctiveaction.
Federal Register notices and other documents are also available through the RCRA/CERCLA
hotline: in Washington D.C., call (703) 412-9810; outside Washington D.C., call (800) 424-9346;
and hearing impaired call (800) 553-7672.  The hotline's hours are Monday - Friday, excluding

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Federal holidays, 8:00 - 5:00, eastern standard time. Many EPA guidance memos and other
documents may also be obtained through the RCRA/CERCLA hotline fax-back system. To
obtain a list of documents available over the fax-back system, and fax-back system code numbers,
call the RCRA/CERCLA hotline at the numbers listed above.

        I hope this information will assist you as you continue to make protective, inclusive, and
efficient cleanup decisions.  If you have additional questions or require more information, please
contact Robert Hall or Greg Madden, of our staffs, on (703) 308-8484 or (202) 564-4229
respectively.

Regulations and Policies that Apply to All Remediation Wastes

      Area of Contamination Policy.  In what is typically referred to as the area of
contamination (AOC) policy, EPA interprets RCRA to allow certain discrete areas of generally
dispersed contamination to be considered RCRA units (usually landfills). Because an AOC is
equated to a RCRA land-based unit, consolidation and in situ treatment of hazardous waste
within the AOC do not create a new point of hazardous waste generation for purposes of RCRA.
This interpretation allows wastes to be consolidated or treated in situ within an AOC without
triggering land disposal restrictions or minimum technology requirements. The AOC
interpretation may be applied to any hazardous remediation waste (including non-media wastes)
that is in or on the land. Note that the AOC policy only covers consolidation and other in situ
waste management techniques carried out within an AOC.  For ex situ waste management or
transfer of wastes from one area of contamination to another, see discussion of corrective action
management units, below.

      The AOC policy was first articulated in the National Oil and Hazardous Substances
Pollution Contingency Plan (NCP).  See 53 FR 51444 for detailed discussion in proposed NCP
preamble; 55 FR 8758-8760, March 8, 1990 for final NCP preamble discussion. See also, most
recent EPA guidance, March 13, 1996 EPA memo, "Use of the Area of Contamination Concept
During RCRA Cleanups."

      Corrective Action Management Units (CAMUs). The corrective action management
unit rule created a new type of RCRA unit - a Corrective Action Management Unit or CAMU 
specifically intended for treatment,  storage  and disposal of hazardous remediation waste. Under
the CAMU rule, EPA and authorized states may develop and impose  site-specific design,
operating, closure and post-closure requirements for CAMUs in lieu of MTRs for land-based
units. Although there is a strong preference for use of CAMUs to facilitate treatment,
remediation waste placed in approved CAMUs does not have to meet LDR treatment standards.

      The main differences between CAMUs and the AOC policy (discussed above) are that,
when a CAMU is used, waste may be treated ex situ and then placed in a CAMU, CAMUs may
be located in uncontaminated areas at a facility,  and wastes may be consolidated into CAMUs
from areas that are not contiguously contaminated. None of these activities are allowed under the
AOC policy, which, as discussed above, covers only consolidation and in situ management
techniques carried out within an AOC.

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       CAMUs must be approved by EPA or an authorized state and designated in a permit or
corrective action order. In certain circumstances, EPA and states (including states that are not
authorized for the CAMU regulations) may use other mechanisms to approve CAMUs.  See, 58
FR 8677, February  16, 1993; appropriate use of RCRA Section 7003 orders and comparable state
orders is discussed below and in an EPA guidance memo from J. Winston Porter to EPA Regional
Administrators, "RCRA Permit Requirements for State Superfund Actions," November 16, 1987,
OSWER Directive 9522.00-2.  In addition, as appropriate, CAMUs may be approved by EPA as
an applicable or relevant and appropriate requirement during a CERCLA cleanup using a record
of decision or by an authorized state during a state cleanup using a CERCLA-like authority and a
similar state  document. See, e.g., 58 FR 8679, February  16,  1993.  An opportunity for the public
to review and comment on tentative CAMU approvals is  required by the regulations when
CAMUs are  approved using permitting procedures and as a matter of EPA policy when CAMUs
are approved using  orders.  EPA recommends that, whenever possible, remediation project
managers combine this public participation with other public  involvement activities that are
typically part of remediation. For example, public notice of tentative approval of a CAMU could
be combined with public notice of a proposed plan under CERCLA.

       The CAMU rule is currently subject to litigation; however, the suit has been stayed
pending promulgation of the final HWIR-Media regulations.   Although EPA proposed to
withdraw CAMUs as part of the HWIR-Media proposal,  the  Agency now intends to retain the
CAMU rule. The Agency encourages approval of CAMUs when they are appropriate given the
site-specific conditions.

       The CAMU regulations are at 40 CFR 264.552, promulgated February  16, 1993 (58 FR
8658).  The differences between CAMUs and AOCs are discussed in more detail in the March 13,
1996 EPA guidance memo, "Use of the Area of Contamination Concept During RCRA
Cleanups."

       Corrective Action Temporary Units (TUs). Temporary units, like corrective action
management units, are RCRA units established specifically for management of hazardous
remediation waste.  The regulations for temporary units (TUs) were promulgated at the same time
as the regulations for corrective action management units. The CAMU regulations established
land-based units for treatment,  storage and disposal of remediation waste; the TU regulations
established non-land based units for treatment and storage of hazardous remediation waste. Under
the TU regulations,  EPA and authorized states may modify existing MTR design, operating and
closure standards for temporary tank and container units  used to treat and store hazardous
remediation waste.  Temporary units may  operate for one year, with an opportunity for a one year
extension.

       Like  CAMUs, temporary units must be approved  by EPA or an authorized state and
designated in a permit or corrective action order. In certain circumstances, EPA and states
(including states that are not authorized for the TU regulations) may use other mechanisms to
approve TUs. See,  58 FR 8677, February 16, 1993; appropriate use of RCRA  Section 7003
orders and comparable state orders is discussed below and in an EPA guidance memo from J.
Winston Porter to EPA Regional Administrators, "RCRA Permit Requirements for State
Superfund Actions," November 16, 1987,  OSWER Directive 9522.00-2. In addition, as
appropriate, TUs may be  approved by EPA as an applicable or relevant and appropriate

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requirement during a CERCLA cleanup using a record of decision or by an authorized state
during a state cleanup using a CERCLA-like authority and a similar state document. Placement of
waste in tanks or containers, including temporary units, is not considered land disposal.
Therefore, waste does not have to be treated to meet LDR treatment standards prior to being
placed in a TU. Of course, LDRs must be met if hazardous remediation wastes are eventually
land disposed, for example, after they are removed from the TU; however, if treatment in a TU
results in constituent concentrations that comply  with applicable land disposal restriction
treatment standards, no further treatment prior to land disposal is required as a condition of the
LDRs.

       An opportunity for the public to review and comment on tentative TU approvals is
required by the regulations when TUs are approved using permitting procedures and as a matter
of EPA policy when TUs are approved using orders.  As with CAMUs, EPA recommends that
whenever possible, remediation project managers combine this  public participation with other
public involvement activities that are typically part of remediation. For example, public notice of
tentative  approval of a temporary unit could be combined with  public notice of a proposed plan
under CERCLA.

       The TU regulations are at 40 CFR 264.553, promulgated February 16, 1993 (58 FR
8658).

       Determination Of When Contamination is Caused by Listed Hazardous Waste.
Where a facility owner/operator makes a good faith effort to determine if a material is a listed
hazardous waste but cannot make such a determination because documentation regarding a
source of contamination, contaminant, or waste is unavailable or inconclusive, EPA has stated
that one may assume the source, contaminant or waste is not listed hazardous waste and,
therefore, provided the material in question does not exhibit a characteristic of hazardous waste,
RCRA requirements do not apply. This approach was first articulated  in the Proposed NCP
preamble which notes that it is often necessary to know the source of a waste (or contaminant) to
determine whether a waste is a listed hazardous waste under RCRA1 and also notes that,  "at many
CERCLA sites no information  exists on the source of the wastes." The proposed NCP preamble
goes on to recommend that the  lead agency use available site information such as manifests,
storage records and vouchers in an effort to ascertain the sources of wastes or contaminants, but
that when this documentation is not available or inconclusive the lead agency may assume that the
wastes (or contaminants) are not listed RCRA hazardous wastes.  This  approach was confirmed in
the final NCP preamble. See, 53 FR 51444, December 21, 1988 for proposed NCP preamble
discussion; 55 FR 8758, March 13, 1990 for final NCP preamble discussion.

       This approach was also discussed in the FEWIR-Media proposal preamble, 61 FR 18805,
April 29, 1996, where it was expanded to also cover dates of waste disposal - i.e., if, after a good
faith effort to determine dates of disposal a facility owner/operator is unable to make such a
determination because documentation of dates of disposal is unavailable or inconclusive,  one may
         Listing determinations are often particularly difficult in the remedial context because the listings are generally
identified by the sources of the hazardous wastes rather than the concentrations of various hazardous constituents;
therefore, analytical testing alone, without information on a waste's source, will not generally produce information that will
conclusively indicate whether a given waste is a listed hazardous waste.

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assume disposal occurred prior to the effective date of applicable land disposal restrictions.  This
is important because, if hazardous waste was originally disposed of before the effective dates of
applicable land disposal restrictions and media contaminated by the waste are determined not to
contain hazardous waste when first generated (i.e., removed from the land, or area of
contamination), the media are not subject to RCRA requirements, including LDRs.  See the
discussion of the contained-in policy, below.

       Site Specific LDR Treatment Variances.  The regulations for site-specific LDR
treatment variances allow EPA and authorized states to establish a site-specific LDR treatment
standard on a case-by-case basis when a nationally applicable treatment standard is unachieveable
or inappropriate.  Public notice and a reasonable opportunity for public comment must be
provided before granting or denying a site-specific LDR treatment variance. EPA recommends
that remediation project managers combine this public involvement with other public involvement
activities that are typically part of remediation. Regulations governing site-specific LDR
treatment variances are at 40 CFR 268.44(h), promulgated August 17, 1988 (53 FR 31199) and
clarified December 5, 1997 (62 FR 64504).  The most recent EPA guidance on site-specific LDR
treatment variances, which includes information on establishing alternative LDR treatment
standards, is in the January 8, 1997 guidance memo, "Use of Site-Specific Land Disposal
Restriction Treatability Variances Under 40 CFR 268.44(h) During Cleanups."

       In  1996, EPA revised its policy on state authorization for site-specific LDR treatment
variances and began encouraging states to become authorized to approve variances.  See, HWIR-
Media proposal, 61 FR 18828 (April 29, 1996).

       On May 26,  1998, EPA promulgated additional site-specific land disposal restriction
treatment variance opportunities specific to hazardous contaminated soil.  These opportunities are
discussed below.

       Treatability Studies Exemption. The term "treatability study"as defined at 40 CFR
260.10 refers to a study in which a hazardous waste is subjected to a treatment process to
determine: (1) whether the waste is amenable to the treatment process; (2) what pretreatment (if
any) is required; (3) the optimal process conditions needed to achieve the desired treatment; (4)
the efficiency of a treatment process for a specific waste or wastes; or, (5) the characteristics and
volumes of residuals from a particular treatment process.  Under regulations at 40 CFR 261.4(e)
and (f), hazardous wastes managed during a treatability study are exempt from many RCRA
Subtitle C requirements.  The regulations limit the amount of waste that may be managed under
an exempt treatability study  to, generally, 1000 kg of hazardous waste or 1 kg of acutely
hazardous waste per study. For contaminated environmental media, the volume limit is, generally,
10,000 kilograms of media that contain non-acutely hazardous waste and 2,500 kilograms of
media that contain acutely hazardous waste per study. There are also limits on the types and
lengths of studies that may be conducted under the exemption and record keeping and reporting
requirements. Regulations governing treatability studies are at 40 CFR 261.4(e) and (f),
associated preamble discussions at 52 FR 27290 (July 19, 1988) and 59 FR 8362 (February 18,
1994).

       Exemption for Ninety Day Accumulation. Management of hazardous waste in tanks,
containers, drip pads and containment buildings does not constitute land disposal. In addition,

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EPA has provided an exemption for generators of hazardous waste which allows them to
accumulate (i.e., treat or store) hazardous waste at the site of generation in tanks, containers, drip
pads or containment buildings for up to ninety days without RCRA interim status or a RCRA
permit.  Accumulation units must meet applicable design, operating,  closure and post-closure
standards. Because putting hazardous waste in a tank, container, drip pad or containment
building is not considered land disposal, LDR treatment standards do not have to be met before
putting waste in such units.  LDRs must be met if hazardous wastes are eventually land disposed,
for example, after they are removed from the accumulation unit; however, if treatment in an
accumulation unit results in constituent concentrations that comply with applicable land disposal
restriction treatment standards, no further treatment prior to land disposal is required as a
condition of the LDRs.  The exemption for ninety-day accumulation  is found in regulations at 40
CFR 262.34; associated preamble discussion is at 51 FR at 10168 (March 24, 1986).

       Permit Waivers.  Under CERCLA Section 121(e), no Federal, state or local permit is
required for on-site CERCLA response actions.  EPA has interpreted CERCLA Section 121 (e) to
waive the requirement to obtain a permit and associated administrative and procedural
requirements of permits, but not the substantive requirements that would be  applied through
permits.2

       In addition, on a case-by-case basis, where there may be an imminent and substantial
endangerment to human health or the environment, EPA has broad authority to require corrective
action and other appropriate activities under RCRA Section 7003. Under RCRA Section 7003,
EPA has the ability to waive both the requirement to obtain a permit and the substantive
requirements that would be imposed through permits. When EPA uses RCRA Section 7003,
however, the Agency seldom uses RCRA Section 7003 to waive  substantive requirements.  In
rare situations where substantive requirements are waived, the Agency would impose alternative
requirements (e.g, waste treatment or storage requirements)  as necessary to  ensure protection of
human health and the environment.  EPA may issue RCRA Section 7003 orders at, among other
sites, facilities that have been issued RCRA permits and facilities that are authorized to operate
under RCRA interim status. In discussing the use of 7003 orders, where other permit authorities
are available to abate potential endangerments, EPA generally encourages use of those other
permit authorities (e.g., 3005(c)(3) omnibus permitting authority) rather than RCRA Section
7003. Similarly, if RCRA Section 3008(h) or RCRA Section 3013 authority is available, EPA
generally encourages use of these authorities rather than RCRA Section 7003.  If permit
authorities or non-RCRA Section 7003 enforcement authorities are inadequate, cannot be used to
address the potential endangerment in a timely manner, or are otherwise inappropriate for the
potential endangerment at issue, use of RCRA Section 7003  should be considered.  See,
"Guidance on the Use of Section 7003 of RCRA," U.S. EPA, Office of Enforcement and
Compliance Assurance, October 1997.

       In 1987, EPA issued guidance indicating that RCRA-authorized states with state waiver
authorities comparable to CERCLA 121(e) or RCRA Section 7003 could use those state waiver
authorities to waive RCRA requirements as long as the state did so in a manner no less stringent
than that allowed under the corresponding Federal authorities.  These waivers are most often
        Note that, under certain circumstances, substantive requirements may be waived using CERCLA. See the
ARAR waiver provisions at 40 CFR 300.430(f)(l)(ii)(C).

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used, as are the Federal waivers, to obviate the need to obtain a RCRA permit, rather than to
eliminate substantive requirements.  See, EPA guidance memo from J. Winston Porter to EPA
Regional Administrators, "RCRA Permit Requirements for State Superfund Actions," November
16, 1987, OSWER Directive 9522.00-2.

       Exemption from 40 CFR Part 264 Requirements for People Engaged in the
Immediate Phase of a Spill Response.  Regulations at 40 CFR 264. l(g)(8) provide that people
engaged in treatment or containment activities are not subject to the requirements of 40 CFR part
264 if the activities are carried out during immediate response to: (1) a discharge of hazardous
waste;  (2) an imminent and substantial threat of a discharge of hazardous waste; (3) a discharge of
a materials which, when discharged, becomes a hazardous waste; or, (4) an immediate threat to
human health, public safety, property or the environment from the known or suspected presence
of military munitions, other explosive material,  or an explosive device. This means that, during
the immediate phase of a spill response, hazardous waste management activities do not require
hazardous waste permits (or interim status) and hazardous waste management units used during
immediate response actions are not subject to RCRA design, operating, closure or post-closure
requirements.

       Of course, if hazardous waste treatment activities or other hazardous waste management
activities continue after the immediate phase of a spill response is over, all applicable hazardous
waste management and permitting requirements would apply.  In addition, if spills occur at a
facility that is already regulated under 40 CFR part 264, the facility owner/operator must continue
to comply with all applicable requirements of 40 CFR Part 264 Subparts C (preparedness and
prevention) and D (contingency plan and emergency procedures).  See regulations at 40 CFR
260. l(g) and associated preamble discussion at 45 FR 76626 (November 19, 1980). See also,
Sept. 29, 1986 memo from J. Winston Porter (EPA  Assistant Administrator) to Fred Hansen
interpreting the 40 CFR 264. l(g) regulations.

       Changes During Interim Status to Comply with Corrective Action Requirements.
Under  regulations at 40 CFR 270.72(a)(5), an owner or operator of an interim status facility may
make changes to provide for treatment, storage and  disposal of remediation wastes in accordance
with an interim status corrective action order issued by EPA under RCRA Section 3008(h) or
other Federal authority, by an authorized state under comparable state authority, or by a court in a
judicial action brought by EPA or an authorized state.  These changes are limited to treatment,
storage and disposal of remediation waste managed as a result of corrective action for releases at
the facility in question; however, they are exempt from the reconstruction ban under 40 CFR
270.72(b). Under this provision, for example, EPA could approve a corrective action
management unit for treatment of remediation waste using a 3008(h) order (or an authorized state
could approve a CAMU using a similar state authority), even if that unit would otherwise amount
to "reconstruction." Of course, units added at interim status facilities in accordance with this
provision must meet all applicable unit requirements; for example, in the case of a CAMU, the
CAMU requirements apply.  See, regulations at 40 CFR 270.72(a)(5) promulgated March 7, 1989
and associated preamble discussion at 54 FR 9599.

       Emergency Permits. In the event of an imminent and substantial endangerment to human
health or the environment, EPA, or an authorized state, may issue a temporary emergency permit
for treatment, storage or disposal of hazardous waste.  Emergency permits may allow treatment,

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storage or disposal of hazardous waste at a non-permitted facility or at a permitted facility for
waste not covered by the permit. Emergency permits may be oral or written.  (If oral, they must
be followed within five days by a written emergency permit.) Emergency permits must specify the
hazardous wastes to be received and managed and the manner and location of their treatment,
storage and disposal.  Emergency permits may apply  for up to ninety days, but may be terminated
at any point if EPA, or an authorized state, determines that termination is appropriate to protect
human health or the environment.  Emergency permits must be accompanied by a public notice
that meets the requirements of 40 CFR 124.10(b), including the name and address of the office
approving the emergency permit, the name and location of the hazardous waste treatment, storage
or disposal facility, a brief description of the wastes involved, the actions authorized and the
reason for the authorization, and the duration of the emergency permit.

      Emergency permits are exempt from all other requirements of 40 CFR part 270 and part
124; however, to the extent possible and not inconsistent with the emergency  situation, they must
incorporate all otherwise applicable requirements of 40 CFR part 270 and parts 264 and 266.

       See, regulations at 40 CFR 270.61, originally promulgated as 40 CFR 122.27 on May 19,
1987 (45 FR 33326).  EPA has also written a number of letters interpreting the emergency permit
regulations, see, for example, November 3, 1992 letter to Mark Hansen, Environmental Products
and Services Inc., from Sylvia Lowrance, Director Office  of Solid Waste (available  in the RCRA
Permit Policy Compendium).

      Temporary Authorizations at Permitted Facilities. Under regulations at 40 CFR
270.42(e), EPA, or an authorized state, may temporarily authorize a permittee for an activity that
would be the subject of a class two or three permit modification in order to, among other things,
facilitate timely implementation of closure or corrective action activities. Activities approved
using a temporary authorization must comply with applicable requirements of 40 CFR part 264.
Temporary authorizations are limited to  180 days, with an opportunity for an  extension  of 180
additional days.  To obtain an extension  of a temporary authorization, a permittee must have
requested a class two or three permit modification for the activity covered in the temporary
authorization. Public notification of temporary authorizations is accomplished by the permittee
sending  a notice about the temporary authorization to all persons on the facility mailing  list and to
appropriate state and local governments. See regulations at 40 CFR 270.42, promulgated on
September 28, 1988, and associated preamble at 53 FR 37919.

Regulations and Policies that Apply to Contaminated  Environmental Media Only

      Contained-in policy. Contaminated environmental media, of itself, is not hazardous
waste and, generally, is not subject to regulation under RCRA.  Contaminated environmental
media can become subject to regulation under RCRA if they "contain" hazardous waste. As
discussed more fully below, EPA generally considers contaminated environmental media to
contain hazardous waste: (1) when they exhibit a characteristic of hazardous waste; or, (2) when
they are contaminated with concentrations of hazardous constituents from listed hazardous waste
that are above health-based levels.

      If contaminated environmental media contain hazardous waste, they are subject to all
applicable RCRA requirements until they no longer contain hazardous waste.  EPA considers

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contaminated environmental media to no longer contain hazardous waste: (1) when they no
longer exhibit a characteristic of hazardous waste; and (2) when concentrations of hazardous
constituents from listed hazardous wastes are below health-based levels. Generally, contaminated
environmental media that do not (or no longer) contain hazardous waste are not subject to any
RCRA requirements; however, as discussed below, in some circumstances, contaminated
environmental media that contained hazardous waste when first generated (i.e., first removed
from the land, or area of contamination) remain subject to LDR treatment requirements even after
they "no longer contain" hazardous waste.

       The determination that any given volume of contaminated media does not contain
hazardous waste is called a "contained-in determination."  In the case of media that exhibit a
characteristic of hazardous waste, the media are considered to "contain" hazardous waste for as
long as they exhibit a characteristic.  Once the characteristic is eliminated (e.g., through
treatment), the media are no longer considered to "contain" hazardous waste.  Since this
determination can be made through relatively straightforward analytical testing, no formal
"contained-in" determination by EPA or an authorized state is required.  Just like determinations
about whether waste has been adequately decharacterized, generators of contaminated media may
make  independent determinations as to whether the media exhibit a characteristic of hazardous
waste. In the case of media that are contaminated by listed hazardous waste, current EPA
guidance recommends that contained-in  determinations be made based on direct exposure using a
reasonable maximum exposure scenario and that conservative, health-based, standards  be used to
develop the site-specific health-based levels of hazardous constituents below which contaminated
environmental media would be considered to no longer contain hazardous waste. Since this
determination involves development of site-specific health-based levels, the approval of EPA or
an authorized state is required.

       In certain circumstances the, RCRA land disposal restrictions will continue to apply to
contaminated media that has been determined not to contain hazardous waste. This is the case
when  contaminated media contain hazardous waste when they are first generated (i.e., removed
from the land, or area of contamination) and are subsequently determined to no longer  contain
hazardous waste (e.g., after treatment), but still contain hazardous  constituents at concentrations
above land disposal restriction treatment standards. It is also the case when media are
contaminated as a result of disposal of untreated (or insufficiently treated) listed hazardous waste
after the effective date of an applicable LDR treatment requirement. Of course, if no land
disposal will occur (e.g., the media will be legitimately recycled) the LDR treatment standards do
not apply. In addition, contaminated environmental media determined not to contain any waste
(i.e., it is just media, it does not contain  solid or hazardous waste) would not be subject to any
RCRA Subtitle C requirements, including the LDRs, regardless of the time of the "contained-in"
determination.

       The contained-in policy was first articulated in a November 13, 1986 EPA memorandum,
"RCRA Regulatory Status of Contaminated Groundwater." It has been updated many times in
Federal  Register preambles, EPA memos and correspondence, see, e.g., 53 FR 31138,  31142,
31148 (Aug.  17, 1988), 57 FR 21450, 21453 (May 20, 1992),  and detailed discussion in HWIR-
Media proposal  preamble, 61 FR 18795  (April 29, 1996).  A detailed discussion of the  continuing
requirement that some soils which have  been determined to no longer contain hazardous waste
(but still contain solid waste) comply with land disposal treatment standards can be found in the


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HWIR-Media proposal preamble, 61 FR 18804; the September 15, 1996 letter from Michael
Shapiro (EPA OSW Director) to Peter C. Wright (Monsanto Company); and the preamble to the
LDR Phase IV rule, 63 FR 28617 (May 26, 1998).

       Note that the contained-in policy applies only to environmental media (soil, ground water,
surface water and sediments) and debris. The contained-in policy for environmental media has
not been codified.  As discussed below, the contained-in policy for hazardous debris was codified
in 1992.

       RCRA Section 3020(b) Exemption for Reinjection of Contaminated Ground Water.
Under RCRA Section 3020(a), disposal of hazardous waste into  or above a formation that
contains an underground source of drinking water is generally prohibited. RCRA Section 3020(b)
provides an exception for underground injection carried out in connection with certain
remediation activities. Under RCRA Section 3020(b), injection of contaminated ground water
back into the  aquifer from which it was withdrawn is allowed if: (1) such injection is conducted as
part of a response action under Section 104 or 106 of CERCLA or a RCRA corrective action
intended to clean up such contamination; (2) the contaminated ground water is treated to
substantially reduce hazardous constituents prior to reinjection; and, (3) the response action or
corrective action will, on completion, be sufficient to protect human health and the environment.
Approval of reinjection under RCRA Section 3020(b) can be included in approval of other
cleanup activities, for example, as part of approval of a RCRA Statement of Basis or CERCLA
Record of Decision.  See, RCRA Section 3020(b), established as part of the 1984 HSWA
amendments. See also, OSWER Directive 9234.1-06, "Applicable of Land Disposal Restrictions
to RCRA and CERCLA Ground Water Treatment Reinjection Superfund Management Review:
Recommendation No. 26," November 27, 1989.

       LDR Treatment Standards for Contaminated Soils. On May 26, 1998, EPA
promulgated land disposal restriction treatment standards specific to contaminated soils.3  These
treatment standards require that contaminated soils which will be land disposed be treated to
reduce concentrations of hazardous constituents by 90 percent or meet hazardous constituent
concentrations that are ten times the universal treatment standards (UTS), whichever is greater.
(This is typically referred to as 90% capped by  lOxUTS.) For contaminated soil that exhibits a
characteristic of ignitable, reactive or corrosive hazardous waste, treatment must also eliminate
the hazardous characteristic.

       The soil treatment standards apply to all underlying hazardous constituents4 reasonably
expected to be present in any given volume of contaminated soil when such constituents are found
at initial concentrations greater than ten times the UTS.  For soil that exhibits a characteristic of
toxic, ignitable, reactive or corrosive hazardous waste, treatment is also required for: (1) in the
case of the toxicity characteristic, the characteristic constituent; and, (2) in the case of ignitability,
        This rule, which also addresses a number of non-soil issues, has been challenged by a number of parties. To
date, the parties have filed non-binding statements of issues only; however, based on those statements, it appears that, with
the exception of the requirement that PCBs be included as an underlying hazardous constituent which has been challenged
for both soil and non-soil wastes, the soil treatment standards are not included in the challenges.

        Except fluoride, selenium, sulfides, vanadium and zinc.

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reactivity or corrosivity, the characteristic property. Although treatment is required for each
underlying hazardous constituent, it is not necessary to monitor soil for the entire list of
underlying hazardous constituents.  Generators of contaminated soil can reasonably apply
knowledge of the likely contaminants present and use that knowledge to select appropriate
underlying hazardous constituents,  or classes of constituents, for monitoring. As with the LDR
treatment standards for hazardous debris (discussed below), generators of contaminated soil may
use either the applicable universal treatment standards for the contaminating hazardous waste or
the soil treatment standards.

       See,  soil treatment standard regulations at 40 CFR 268.49, promulgated May 26,  1998
and associated preamble discussion at 63 FR 28602-28622.

       Note that the soil treatment standards supersede the historic presumption that an LDR
treatment variance  is appropriate for contaminated soil. LDR treatment variances are still
available for contaminated soil, provided the generator can show that an otherwise applicable
treatment standard  (i.e., the soil treatment standard) is unachieveable or inappropriate, as
discussed above, or can show that a site-specific, risk-based treatment variance is proper, as
discussed below.

       Site-Specific, Risk-Based LDR Treatment Variance for Contaminated Soils.  On
May 26, 1998, EPA promulgated a new land disposal restriction treatment variance specific to
contaminated soil.  Under 40 CFR 268.44(h)(3), variances from otherwise applicable LDR
treatment standards may be approved if it is determined that compliance with the treatment
standards would result in treatment beyond the point at which short- and long-term threats to
human health and the environment are minimized.  This allows a site-specific, risk-based
determination to supersede the technology-based LDR treatment standards under certain
circumstances.

       Alternative land disposal  restriction treatment standards established through site specific,
risk-based minimize threat variances should be within the range of values the Agency generally
finds acceptable for risk-based cleanup levels. That is, for carcinogens, alternative treatment
standards should ensure constituent concentrations that result in the total excess risk to an
individual exposed  over a lifetime generally falling within a range from 10~4 to 10'6, using 10'6 as a
point of departure and with a preference for achieving the more protective end of the risk range.
For non-carcinogenic effects,  alternative treatment standards should ensure constituent
concentrations that an individual  could be exposed to on a daily basis without appreciable risk of
deleterious effect during a lifetime; in general, the hazard index should not exceed one (1).
Constituent concentrations that achieve these levels should be calculated based on a reasonable
maximum exposure scenario  that is, based on an analysis of both the current and reasonable
expected future land  uses, with exposure parameters chosen based on a reasonable assessment of
the maximum exposure that might occur; however, alternative LDR treatment standards may not
be based on  consideration of post-land disposal controls such as caps or other barriers.

       See,  regulations at 40  CFR 268.44(h)(4), promulgated May 26, 1998 and associated
preamble discussion  at 63 FR 28606-28608.

Regulations and Policies that Apply Only to Debris


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       LDR Treatment Standards for Contaminated Debris. In 1992, EPA established land
disposal restriction treatment standards specific to hazardous contaminated debris.  The debris-
specific treatment standards established by these regulations are based on application of common
extraction, destruction, and containment debris treatment technologies and are expressed as
specific technologies rather than numeric criteria. As with the contaminated soil treatment
standards discussed earlier, generators of hazardous contaminated debris may choose between
meeting either the debris treatment standards or the numerical treatment standard promulgated for
the contaminating hazardous waste. See, regulations at 40 CFR 268.45, promulgated August 18,
1992, and associated preamble discussion at 57 FR 37194 and 27221.

       Interpretation that Debris Treated to the LDR Debris Treatment Standards Using
Extraction or Destruction Technologies no Longer Contain Hazardous Waste. With the
land disposal restriction treatment standards for hazardous contaminated debris, in  1992, EPA
determined that hazardous debris treated to comply with the debris treatment standards using one
of the identified extraction or destruction technologies would be considered no longer to contain
hazardous waste and would, therefore, no longer be subject to regulation under RCRA, provided
the debris do not exhibit any  of the hazardous waste characteristics.  This "contained-in
determination" is automatic; no agency action is needed. Note that this  automatic contained-in
determination does not apply to debris treated to the debris treatment standards using one of the
identified immobilization technologies. See,  regulations at 40 CFR 261.3(f) and treatment
standards at Table 1  of 40 CFR 268.45, promulgated August 18,  1992, and associated preamble
discussion at 51 FR 37225.

cc:    Barbara Simcoe, Association of State and Territorial Solid Waste Management Officials
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