EPA/540/G-91/009
OERR Directive 9345.3-02
May 1991
Management of
Investigation-Derived Wastes
During Site Inspections
Office of Emergency and Remedial Response
U.S. Environmental Protection Agency
Washington, DC 20460
Printed on Recycled Paper
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NOTICE
The policies and procedures set forth here are intended as
guidance to Agency and other government employees. They
do not constitute rulemaking by the Agency, and may not be
relied on to create a substantive or procedural right
enforceable by any other person. EPA officials may decide to
follow the guidance provided in this directive, or to act at
variance with the guidance, based on analysis of specific site
circumstances. The Agency also reserves the right to change
this guidance at any time without public notice.
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TABLE OF CONTENTS
EXECUTIVE SUMMARY v
1.0 INTRODUCTION 1
1.1 Purpose 1
1.2 Organization of the Guidance 1
2.0 REGULATORY REQUIREMENTS AND POLICY CONCERNS 3
2.1 Requirements of CERCLA and the NCP 3
2.2 Off-Site Response Actions Policy 4
2.3 Applicable or Relevant and Appropriate Requirements 5
2.4 Resource Conservation and Recovery Act 5
2.4.1 Land Disposal Restrictions 6
2.4.2 Area of Contamination Concept and Its Implications 6
2.4.3 Requirements for RCRA Subtitle C Treatment, Storage, and Disposal Facilities 8
2.4.4 Applications of RCRA Requirements to IDW Management 9
2.4.5 Criteria for RCRA Subtitle D Waste Disposal Facilities 9
2.5 Toxic Substances Control Act 10
2.6 Clean Water Act 10
2.7 State Requirements 11
3.0 IDENTIFICATION OF INVESTIGATION-DERIVED WASTES 13
3.1 Extent of Efforts to Characterize Wastes 13
3.2 RCRA Hazardous Wastes and CERCLA Hazardous Substances 13
3.2.1 RCRA Characteristic Wastes 14
3.2.2 RCRA Listed Hazardous Wastes 15
4.0 PLANNING FOR IDW GENERATION AND MANAGEMENT 19
4.1 Liability Limits of IDW Management 19
4.2 Waste Minimization 20
4.3 Types, Hazards, and Quantities of IDW 20
4.4 Decision Tree 21
4.5 On-Site IDW Handling and Management Options 25
4.6 Off-Site Disposal of IDW and Management Options 26
5.0 IMPLEMENTING THE IDW MANAGEMENT PLAN 29
5.1 On-Site IDW Management 29
5.2 Off-Site IDW Management 29
6.0 IDW HANDLING COSTS 31
6.1 On-Site IDW Management 31
6.2 Off-Site Disposal of IDW 31
6.3 Subcontracting 33
8.0 REFERENCES 34
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TABLE OF CONTENTS (continued)
APPENDIX A: Relevant Parts of the NCP A-l
APPENDIX B: OSWER Directive 9347.3-05 FS - Superfund LDR Guide #5 B-l
APPENDIX C: OSWER Directive 9330.2-04 - Discharge of Wastewater from CERCLA Sites into
POTWs C-l
APPENDIX D: TCLP Constituents D-l
APPENDIX E: Glossary of Terms E-l
LIST OF FIGURES
1. "Plan for IDW Handling" 22
2. "On-Site Handling" . . 23
3. "Off-Site Disposal" 24
IV
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EXECUTIVE SUMMARY
This guidance presents a general regulatory background and options for management of investigation-derived wastes
(IDW) generated during Superfund site inspections (Sis). These wastes include soil cuttings, drilling muds, purged
ground water, decontamination fluids (water and other fluids), disposable sampling equipment (DE), and disposable
personal protective equipment (PPE). The National Contingency Plan (NCP) requires that management of IDW
generated during Sis complies with all applicable or relevant and appropriate requirements (ARARs) to the extent
practicable. In addition, other legal and practical considerations may affect the handling of IDW. Therefore, site
inspection managers and other involved parties should be familiar with this guidance, as well as the requirements
of the NCP, ARARs, and EPA's interpretation of these requirements.
IDW from Sis may contain hazardous substances as defined by the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA). Some CERCLA hazardous substances are hazardous wastes under
Subtitle C of the Resource Conservation and Recovery Act (RCRA), while other substances are regulated by other
federal laws such as the Safe Drinking Water Act (SDWA), Clean Air Act (CAA), Toxic Substances Control Act
(TSCA), and the Clean Water Act (CWA). EPA estimates that RCRA hazardous IDW have been generated at fewer
than 15 percent of CERCLA sites. However, RCRA regulations, and in particular the RCRA Land Disposal
Restrictions (LDRs), are very important as potential ARARs since they regulate treatment, storage, and disposal
of many of the most toxic and hazardous materials.
EPA's strategy for managing RCRA hazardous IDW presented in this guidance is based on:
The NCP directive that Sis comply with ARARs to the extent practicable.
The Area of Contamination (AOC) unit concept.
The most important elements of the IDW management approach are as follows:
Leaving a site in no worse condition than existed prior to the investigation.
Removing those wastes that pose an immediate threat to human health or the environment.
Leaving on-site wastes that do not require off-site disposal or extended above-ground containerization.
Complying with federal ARARs, to the extent practicable.
Complying with state ARARs, as practicable.
Careful planning and coordination for IDW management.
Minimizing the quantity of generated wastes.
The specific elements of the approach are as follows:
Characterizing IDW through the use of existing information (manifests, Material Safety Data Sheets,
previous test results, knowledge of the waste generation process, and other relevant records) and best
professional judgment.
Delineating an AOC unit for leaving RCRA hazardous soil cuttings within the unit.
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Containerizing and disposing of RCRA hazardous ground water, decontamination fluids, and PPE and
DE (if generated in excess of 100 kg/month) at RCRA Subtitle C facilities.
Leaving on-site RCRA nonhazardous soil cuttings, ground water, and decontamination fluids preferably
without containerization and testing. fi'
EPA does not recommend removal of wastes from all sites and, in particular, from those sites where IDW do not
pose any immediate threat to human health or the environment. Removing wastes from all sites would not benefit
human health and the envkonment and would result in spending a significant portion of the total funds available for
the site assessment program, thus impairing EPA's ability to successfully meet the goals of the program.
VI
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1.0 INTRODUCTION
In the process of collecting environmental samples during Superfund site inspections (Sis), site investigators generate
many different types of potentially contaminated investigation-derived wastes (IDW) that include soil, ground water,
used personal protective equipment (PPE), decontamination fluids, and disposable sampling equipment (DE). The
National Contingency Plan (NCP)(1) requires that managing (handling) of IDW attains all applicable or relevant and
appropriate requirements (ARARs) to the extent practicable considering the exigencies of the situation. To comply
with ARARs, site managers need to be familiar with these requirements and how the Environmental Protection
Agency interprets them.
1.1 PURPOSE
This document provides guidance on determining and interpreting ARARs, and highlights EPA's recommended
approach to handling IDW in compliance with these requirements. The guidance is intended to assist site inspection
managers (SM), EPA regional project officers (RPOs), EPA Site Assessment Managers (SAMs), state environmental
agencies, potentially responsible parties (PRPs), and others involved in Superfund site assessment work. The
approach presented reflects EPA's goal to protect human health and the environment, addresses the most typical
scenarios that the SM may encounter, and describes cost-efficient methods of handling both hazardous and non-
hazardous IDW.
1.2 ORGANIZATION OF THE GUIDANCE
This guidance consists of seven sections:
Section 1 - Introduction.
Section 2 describes regulatory requirements and policy concerns, with emphasis on Resource
Conservation and Recovery Act (RCRA)(2) regulations.
Section 3 discusses the distinction between IDW containing Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) hazardous substances and RCRA hazardous wastes based
on their regulatory definitions.
Section 4 stresses planning for IDW generation and management as the most important factor of the
comprehensive approach to handling IDW. This section also presents the IDW disposal decision tree
intended as a quick reference for site inspection managers.
Section 5 describes the implementation of the IDW management plan.
Section 6 discusses costs involved in both on-site and off-site IDW handling.
Section 7 briefly describes available subcontracting procedures for IDW transportation and disposal.
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2.0 REGULATORY REQUIREMENTS AND POLICY CONCERNS
A variety of IDW are generated during CERCLA Sis. Many of these wastes contain substances considered
hazardous under CERCLA or regulated under various federal statutes such as the Toxic Substances Control Act
(TSCA), Clean Water Act (CWA), Safe Drinking Water Act (SDWA), Clean Air Act (CAA), and RCRA. Even
though all of these statutes can be ARARs for CERCLA actions, the application of these laws to handling IDW
generated during the SI can be difficult and confusing, since none specifically addresses the management of IDW
generated during the SI.
The National Contingency Plan (NCP)(1) and the proposed amendment to the NCP3' ("Procedures for Planning and
Implementing Off-Site Response Actions") codifying the CERCLA off-site policy^, present EPA's interpretation
of how these laws apply to response action investigations such as Sis.
2.1 REQUIREMENTS OF CERCLA AND THE NCP
CERCLA authorizes EPA to respond to releases or threats of releases of hazardous substances into the environment.
CERCLA response actions include removal actions, remedial investigations, and other response actions financed
by Superfund. CERCLA Section 101 (23) defines "removal" to include actions that may be necessary to monitor,
assess, and evaluate the release or threat of release of hazardous substances. Thus, CERCLA studies, site
assessments, and field investigations are considered removal actions. The NCP directs that removal actions attain
ARARs "to the extent practicable considering the exigencies of the situation" (unless the ARAR is waived) (see
Section 300.415 (i) of the NCP). Practicability is assessed by examining factors such as the urgency of the situation
and the scope of the removal action to be conducted. Section 2.2 of this guidance discusses procedures for
CERCLA off-site actions.
The preamble to the NCP clarifies the extent to which ARARs apply to removal actions:
"[Because] the purpose of removal actions generally is to respond to a release or threat of release of hazardous
substances, pollutants, or contaminants so as to prevent, minimize, or mitigate harm to human health and the
environment... [and] removals are distinct from remedial actions in that they may mitigate or stabilize the threat
rather than comprehensively address all threats at a site... removal actions cannot be expected to attain all
ARARs...Indeed, the imposition by Congress of limits on the amount of time and Fund money that may be
spent conducting a removal action often precludes comprehensive remedies by removal actions alone" (55 FR
8695, March 8, 1990) (emphasis added).
Because investigative activities are categorized as removal actions, the preamble to the NCP sets out the following
IDW management approach:
"... the field investigation team should, when handling, treating or disposing of investigation-derived waste on-
site, conduct such activities in compliance with ARARs to the extent practicable, considering the exigencies of
the situation . Investigation-derived waste that is transported off-site (e.g., for testability studies or disposal)
must comply with applicable requirements of the CERCLA off-site policy" (55 FR 8756, March 8, 1990)
(emphasis added).
In determining what is "practicable" in the context of an SI, the Agency may take into account the very limited
scope and purpose of the activity, and in particular the fact that it is not intended to address contamination at the
site (other than to gather information about it). This means that, as a general matter, actions taken at the SI that
leave conditions essentially unchanged (such as returning soil cuttings to the location from which they were taken)
should not require a detailed analysis of ARARs or assurance that conditions at the site after the action is taken will
comply with ARARs. At the same time, site personnel should ensure that their handling of IDW does not create
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additional hazards at the site. (For example, leaving highly contaminated soil cuttings on the surface could create
an additional risk of direct exposure.)
Potential ARARs include (but are not limited to) RCRAป, TSCA, CWA, CAA, and state legally enforceable
regulaUons. The most important ARARs for managing IDW are RCRA and TSCA (addressed in Sections 2.4 and
2.5 of this guidance). The preamble to the NCP discusses when CERCLA actions (including activities during Sis)
constitute "land disposal," which triggers several significant requirements, including RCRA land disposal restrictions
(LDRs)ra (55 FR 8759-8762).
Section 300.400(g) (4) of the NCP defines state ARARs as "those state standards that are promulgated, are identified
by the state in a timely manner, and are more stringent than federal requirements." Section 2.7 of this guidance
discusses the issue of state ARARs.
Before ARARs can be determined, it is necessary to determine what contaminants, if any, are present in the IDW.
Section 3.0 of this guidance discusses the process of identifying contaminants. In general, such identification should
be done based on available information about the site and professional judgment rather than testing.
In brief, compliance with the NCP can generally be assured by:
(1) Identifying contaminants, if any, present in IDW based on existing information and best professional
judgment; testing is not required in most circumstances.
(2) Determining ARARs (particularly RCRA and state laws), and the extent to which it is practicable to
comply with them.
(3) Delineating an area of contamination (AOC) unit based on existing information and visual observation
if soil cuttings are RCRA hazardous (see Section 2.4.2).
(4) Burying RCRA hazardous soil cuttings within the AOC unit, so long as no increased hazard to human
health and the environment will be created. Containerization and testing are not required.
(5) Containerizing RCRA hazardous ground water and other RCRA hazardous IDW such as PPE, DE, and
decontamination fluids for off-site disposal.
The following sections of this guidance provide guidelines for determining ARARs and identifying IDW.
2.2 OEF-SITE RESPONSE ACTIONS POLICY
CERCLA Section 121 (d) (3) requires that hazardous substances, pollutants, or contaminants that are transferred
off-site for treatment, storage, or disposal during CERCLA response actions must be sent to facilities operating in
compliance with RCRA and other applicable laws or regulations. In 1987, EPA issued a more detailed policy (the
"off-site policy" - OSWER Directive No. 9834.11, November 13, 1987<4>) that describes procedures that must be
followed when a response action under CERCLA involves off-site management of CERCLA wastes. This policy
applies to all IDW that are transported to an off-site disposal facility, but does not itself require that all RCRA
hazardous wastes and CERCLA hazardous substances be disposed off-site. Sections 2.4.3, 2.4.4, 2.5 and 2.6 of
this guidance present the criteria that RCRA Subtitle C facilities, RCRA Subtitle D facilities, TSCA and CWA-
regulated facilities must meet. The off-site policy is complex, and questions that arise should be referred to the
appropriate EPA Office of Regional Counsel.
The off-site policy provides acceptability criteria for facilities that receive wastes from CERCLA-authorized or
-funded response actions, including RCRA land disposal, treatment, storage, and permit-by-rule facilities, and for
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non-RCRA Subtitle C facilities (such as facilities permitted to receive waste under TSCA) that receive non-RCRA
wastes. Section 2.4.3 of this guidance discusses requirements for RCRA facilities that receive such wastes. In
addition, the off-site policy lists procedures for implementing off-site response actions, incorporates the SARA
requirements, and provides detailed procedures for issuing and reviewing unacceptability determinations. Off-site
actions must comply with applicable requirements of this policy.
The off-site policy also establishes criteria for selecting an appropriate disposal facility. The policy requires that
all RCRA hazardous wastes and CERCLA hazardous substances (which include RCRA hazardous wastes as a
subset) generated during CERCLA response actions that are transferred off-site be managed in facilities that are not
only in compliance with RCRA and other federal and state requirements, but also meet the compliance and release
criteria outlined in the policy.
EPA has proposed an off-site rule (Part 300.440 of the NCP) that would codify the requirements of CERCLA
Sections 121 (d) (3) and the off-site policy, and prevent CERCLA response actions from contributing to present or
future environmental problems "by directing these wastes to management units determined to be environmentally
sound" (53 FR 48218, November 29, 19880)). Once the rule is issued in final form, it will supersede the policy.
Note that the proposed off-site rule contains provisions regarding materials sent to laboratories for testing and
analysis. These provisions do not relate to the types of IDW discussed in this guidance.
2.3 APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
ARARs must be identified on a site-specific basis, and the site manager must determine whether a requirement is
applicable and, if not, whether the requirement is relevant and appropriate. A requirement under environmental
laws may be either "applicable" or "relevant and appropriate," but not both.
For dealing with IDW, the most important federal ARAR is RCRA because it specifically regulates all aspects of
transportation, treatment, storage, and disposal of hazardous wastes. Other major federal ARARs of concern
include CWA, CAA, SDWA, and TSCA. State ARARs should be attained where they are promulgated and legally
enforceable (see Section 2.7 of this guidance).
Much of what is discussed in this guidance is directly applicable; however, there are instances where requirements
may not be legally applicable, but are nethertheless relevant (addressing a similar situation or problem) and
appropriate (being well-suited to a particular site). Relevant and appropriate requirements should be considered in
, the same way as those that are directly applicable. For instance, such situations might include circumstances where
a highly toxic waste constituent is suspected, a large volume of waste may be generated or the nature of the property
(e.g. residential or proximity to public facilities) is of concern. Section 4.6 of this guidance discusses factors
identified for off-site disposal of IDW and management options when an ARAR has been determined.
2.4 RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)
The Resource Conservation and Recovery Act (RCRA) of 1976, an amendment to the Solid Waste Disposal Act
(SWDA) of 1965, was passed to protect human health and the environment, to conserve energy and natural
resources, and to quickly reduce or eliminate the generation of hazardous wastes. RCRA currently has 10 discrete
sections (Subtitles) that address specific waste management activities. Two of these Subtitles, and their
implementing regulations, may be ARARs for IDW handling: Subtitle C (Hazardous Waste Management) and
Subtitle D (Solid Waste Management).
The RCRA Hazardous and Solid Waste Amendments (HSWA) of 1984 established land disposal restrictions (LDRs)
for RCRA hazardous wastes and mixtures of RCRA hazardous wastes with other substances, including those
regulated under TSCA. Under RCRA regulations, restricted RCRA wastes may only be land disposed after
treatment to specified levels. RCRA may be an ARAR for IDW handling if the IDW generated during the SI
contain RCRA hazardous wastes. In that case, the SM should evaluate compliance (to the extent practicable) with
LDRs.
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2.4.1 LAND DISPOSAL RESTRICTIONS
Land disposal, as defined by RCRA Section 3004 (k), includes any placement of RCRA hazardous waste in a
landfill, surface impoundment, waste pile, injection well, land treatment facility, salt dome or salt bed formation,
or underground mine or cave. For LDR purposes, the Agency commonly uses "land disposal" and "placement"
as synonymous terms.
For the purpose of the LDRs, HSWA divides RCRA hazardous wastes into several groups (e.g., First Third, Second
Third, California list wastes) and specifies dates, referred to as the statutory deadlines, by which treatment standards
for each group must be established. The final statutory deadline for wastes listed or identified before November
8, 1984 was May 8, 1990. For wastes identified after November 8, 1984, EPA must determine whether these
wastes will be prohibited from land disposal within 6 months of listing or identification. If EPA fails to promulgate
treatment standards within 6 months for newly identified wastes, the wastes can be land disposed without restriction
until the appropriate treatment standards are promulgated. After the statutory deadline for wastes identified before
November 8, 1984, the wastes are "restricted" or "prohibited" and cannot be disposed in land unless:
The wastes are treated to meet promulgated treatment standards.
It can be demonstrated that hazardous constituents will not migrate from the land disposal unit as long
as the wastes remain hazardous.
The wastes are subject to treatment standard variances.
The specific waste has received a national capacity variance.
It should be noted that the NCP establishes a presumption that treatment to best demonstrated available technology
(BOAT) standards is inappropriate as a standard for soil removed from CERCLA sites, and that a testability
variance is appropriate in such circumstances (see 55 FR 8760-8762).
To determine if LDRs are applicable to IDW management, the SM must evaluate whether:
(1) The IDW are RCRA hazardous waste.
(2) The RCRA hazardous waste is regulated under the LDRs.
(3) The anticipated approach to IDW management constitutes "placement" (land disposal) of the generated
wastes. (For the purpose of the LDRs, EPA considers itself a waste generator when the response action
involves treatment, storage, or disposal of RCRA hazardous wastes. If the SI does not involve RCRA
hazardous IDW disposal, RCRA regulations are not triggered.)
LDRs apply only if the answer to all three questions is "yes." In some cases, as discussed in section 2.3, LDRs
may be "relevant and appropriate" even if not strictly applicable.
2.4.2 AREA OF CONTAMINATION CONCEPT AND ITS IMPLICATIONS
An important consideration in determining whether LDRs apply is whether land disposal of IDW has occurred. If
IDW are merely being moved within the same "area of contamination" (AOC), EPA does not consider "land
disposal" to have occurred, so that LDRs are not triggered, even if IDW contain RCRA hazardous material.
Therefore, if IDW are being moved only within an AOC, it is unnecessary to determine whether they are subject
to LDRs.
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EPA has not promulgated a regulatory definition of an AOC. However, the preamble to the NCP (55 FR 8760)
states that "EPA generally equates the CERCLA area of contamination with a single RCRA land-based unit, usually
a landfill." EPA noted that under RCRA, the term " 'landfill' could include a non-discrete land area on or in which
there is generally dispersed contamination." The contamination in an AOC may vary in concentration and type of
contaminant. Further guidance on the AOC concept is provided in 55 FR 8760 (March 8, 1990), 53 FR 51444
(December 21, 1988), and in Superfund LDR Guide #5 (OSWER Directive 9347.3-05, July 1989).
The AOC concept applies only to contaminated soil (and sediments') from the inspected site. The AOC concept does
not affect the approach for managing IDW that did not come from the AOC, such as PPE, DE, decontamination
fluids, and ground water. The latter materials, if RCRA hazardous, must be containerized and disposed off-site.
Examples of AOCs include: a waste source such as waste pit, landfill, waste pile along with the surrounding
contaminated soil, or the sediments in a contaminated stream. Depending on site characteristics, one or more AOCs
may be delineated. CERCLA sites often consist of several AOCs. To determine if separate AOCs can be
delineated within the site, and if RCRA regulated wastes are present within the AOCs, the site manager should
collect sufficient information about the site as early as possible, preferably prior to starting field work. Determining
AOCs may prove difficult if there is little available information or no visual contamination. In such cases, site
managers may use their best professional judgment to delineate AOCs (e.g., a small area immediately adjacent to
a borehole may be part of an AOC if the area is covered with surface soil similar to soil from the borehole).
Once the AOC units are determined, the site manager must evaluate whether an anticipated IDW handling approach
constitutes land disposal. In general, land disposal does not occur when wastes are:
Moved within the unit.
Capped in place.
Treated in situ (without placing the waste in another unit for treatment).
Processed within the AOC to improve structural stability (without placing the waste into another unit for
processing).
Superfund LDR Guide #5, "Determining when Land Disposal Restrictions (LDRs) are Applicable to CERCLA
Response Actions,"ฎ states that land disposal occurs when:
ซ Wastes from different AOCs are consolidated into one AOC.
Wastes are moved outside of an AOC (for treatment and storage) and returned to the same or a different
AOC.
Wastes are excavated from an AOC, transferred to a separate unit such as a tank, surface impoundment,
or incinerator that is within the AOC, and then redeposited into the AOC.
In addition, land disposal occurs if wastes removed from an AOC are stored (e.g., placed in drums outside the
AOC) prior to being returned to the AOC.
Thus, under the NCP, the AOC unit concept means that:
Land disposal does not occur when wastes are left in place, or moved or stored within a single AOC
unit.
Leaving RCRA hazardous soil on-site within the AOC unit does not constitute disposal and does not
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trigger RCRA regulations, unless the SM determines that the wastes would significantly increase risks
to human health and the environment (e.g., fire or explosion) and must be disposed of off-site.
RCRA hazardous ground water, decontamination fluids, PPE, and DE should be containerized and
disposed off-site.
Moving RCRA hazardous soil cuttings from one AOC to another AOC triggers the LDRs.
If IDW cannot be deposited within the delineated AOC, the site manager must comply with all LDRs to the extent
practicable. This means that the IDW should be transferred to an off-site RCRA Subtitle C hazardous waste
treatment, storage, or disposal facility that complies with the off-site policy.
2.4.3 REQUIREMENTS FOR RCRA SUBTITLE C TREATMENT, STORAGE, AND DISPOSAL
FACILITIES
The RCRA Subtitle C standardsฎ cover hazardous waste treatment, storage, and disposal (TSD) facilities. The
specific standards govern installation, operation, inspection, and closure of containers, tanks, surface impoundments,
waste piles, land treatment units, landfills, incinerators, and other units.
Off-site TSD facilities receiving IDW must have RCRA permits to operate. Facilities that are permitted under
another statute to receive hazardous wastes are eligible for RCRA permits without filing RCRA permit applications.
These facilities, referred to as "permit-by-rule," include ocean disposal barges or vessels, injection wells, and
publicly-owned treatment works (POTWs). The NCP exempts EPA from the RCRA permitting requirement while
conducting CERCLA actions on-site. However, EPA should attempt to consider RCRA storage regulations as
relevant and appropriate when containerizing and storing wastes on-site, even though a permit application will not
be filed.
Generally, the RCRA storage regulations require a generator to: (1) place the waste in containers or tanks; (2)
satisfy the standards for containers or tanks; (3) clearly indicate the waste accumulation date on the containers; (4)
mark the containers and tanks as "hazardous waste"; and (5) comply with the requirements for owners and operators
of hazardous waste TSD facilities. In addition, LDRs prohibit the storage of RCRA restricted waste unless the
storage is to accumulate sufficient quantities of the waste to promote proper disposal, treatment, or recovery. When
storing hazardous waste for more than 90 days, the SM should consider the storage requirements of 40 CFR Parts
262 and 264 as relevant and appropriate and comply with them to the extent practicable unless the site falls within
one of the following categories of waste generators:
1. Conditionally exempt small quantity generators (producing no more than 100 kilograms of hazardous
waste in a calendar month), and
2. Small quantify generators producing between 100 kg and 1,000 kg of hazardous waste in a calendar
month.
In the cases listed above, the SM will have to comply with the guidelines provided in 40 CFR Part 261.5(g)(2) and
40 CFR Part 262.34.
Any facility receiving IDW containing hazardous wastes must comply with all RCRA Subtitle C design, operation,
and closure requirements. In addition, the off-site policy presents additional criteria for selecting an appropriate
disposal facility. The most important criteria(4) that a RCRA Subtitle C facility must meet if it receives RCRA
hazardous IDW are:
There must be no record of any relevant violations at or affecting the receiving unit.
There must be no releases at receiving units of land disposal, treatment, or storage facilities. Note that
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a land disposal facility may consist of one or more land disposal units, including landfills, surface
impoundments, land treatment units, and piles.
There must be no significant releases (as determined by EPA) from non-receiving units at treatment and
storage facilities that are not controlled by corrective action.
Waste cannot be disposed of at any unit of a land disposal facility, if any one unit at the facility has
releases that are not controlled by corrective action.
The land disposal facility must demonstrate compliance with the minimum technology requirements of
RCRA Section 3004 (o).
The off-site policy also applies to RCRA pennit-by-rule facilities receiving RCRA hazardous waste. These facilities
are subject to the same requirements as other RCRA Subtitle C facilities and must be inspected for compliance with
the applicable RCRA requirements, as well as be inspected by the appropriate authorities for compliance with other
applicable laws. Permit-by-rule facilities that receive only nonhazardous materials do not need RCRA permits but
must be inspected by local agencies for compliance with applicable laws.
2.4.4 APPLICATION OF RCRA REQUIREMENTS TO IDW MANAGEMENT
RCRA requirements apply to management of IDW during Sis in the following manner: if IDW is stored or
disposed off-site, then the SM must comply with all RCRA and ARAR storage requirements; if IDW are stored
on-site, then the SM must comply with RCRA to the extent practicable.
Off-site management of RCRA hazardous IDW may also involve treatment, storage, and disposal of RCRA
hazardous wastes in accordance with all applicable guidelines. For TSD facilities constructed solely as part of a
CERCLA response action, RCRA operating permits are not required.
IDW generated during the SI may require on-site storage in containers while awaiting off-site disposal. Although
CERCLA exempts response actions conducted entirely on-site from permit requirements (see CERCLA Section 121
(e) (1)), EPA's policy is to follow the storage regulation practices required for RCRA generators who wish to avoid
obtaining permits ( 40 CFR Parts 240-280). These requirements are applicable if the site manager determines that
the containerized IDW are RCRA hazardous waste. RCRA hazardous IDW containerized and stored on-site must
be properly disposed within a regulatory timeframe. There are cases where this may not be possible and storage
does not require a permit, although EPA should try to expedite removal as much as possible. Note that
accumulation of IDW, even on-site, in units other than containers or tanks may result in creation of RCRA units
that are subject to various RCRA requirements such as closure, permitting, and ground water monitoring.
2.4.5 CRITERIA FOR RCRA SUBTITLE D FACILITIES
RCRA Subtitle D(2) regulates disposal of nonhazardous wastes in facilities such as municipal landfills. RCRA
nonhazardous IDW, such as personal protection equipment (PPE) and disposable equipment (DE), may be disposed
of in a Subtitle D facility. Other RCRA nonhazardous IDW (e.g., soil cuttings or ground water) should go to a
Subtitle D facility only in very rare circumstances (these wastes should be disposed on-site). The off-site policy
establishes requirements for selecting an appropriate RCRA Subtitle D facility for IDW disposal:
The facility must have a compliance inspection prior to receiving CERCLA IDW and this inspection must
not identify any noncompliance with relevant federal and state regulations at or affecting the receiving
unit.
Environmentally significant releases (as determined by EPA) of hazardous substances must be controlled
by corrective action.
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2.5 TOXIC SUBSTANCES CONTROL ACT
RCRA nonhazardous IDW containing PCBs or asbestos must, in certain circumstances, be disposed of at facilities
regulated under the Toxic Substances Control Act (TSCA). While asbestos is not a common contaminant at
CERCLA sites, PCBs can be found at about 17 percent of CERCLA sites. Regulations governing the management
of IDW containing PCBs, which are generally based on PCB concentrations in waste, are found at 40 CFR 761.60.
TSCA requirements for handling PCBs(6) call for incineration of PCB-contaminated liquid material with
concentrations greater than 500 ppm. For liquid material with PCB concentrations between 50 and 500 ppm, the
principal alternative to incineration is disposal in a TSCA chemical waste landfill. Any receiving unit must meet
the compliance and release criteria for non-RCRA units as set out in the off-site policy, in order to be acceptable.
These PCBs may also be destroyed by using a TSCA-approved method that provides a level of performance
equivalent to incineration. Nonliquid PCBs at concentrations greater than or equal to 50 ppm may be incinerated,
treated by a equivalent TSCA-approved method, or disposed in a TSCA chemical landfill. PCB-contaminated
material with concentrations less than 50 ppm are generally not regulated under TSCA, and may be disposed in
acceptable Subtitle D facilities.
Even though IDW containing PCBs alone are not RCRA hazardous wastes, IDW containing PCBs mixed with
RCRA hazardous wastes are regulated under RCRA LDRs as part of the California list wastes^. Since PCBs can
be governed by RCRA and TSCA, the SM must determine whether RCRA (in the case of PCBs mixed with RCRA
wastes) or TSCA regulations, or both, are applicable.
2.6 CLEAN WATER ACT
The Clean Water Act (CWA) addresses site-specific pollutant discharge limitations and performance standards for
specified industries to protect surface water quality. At the SI, the most likely situation involves indirect discharge
of IDW water, regulated under CWA, to POTWs for treatment and disposal. A less likely situation may involve
direct discharge, either on-site or off-site, to surface water.
RCRA hazardous wastewater can be disposed of at POTWs that have a RCRA permit-by-rule and that meet the off-
site policy criteria for a facility receiving RCRA hazardous waste. Disposal at a POTW of nonhazardous
wastewaters from CERCLA sites is an option07-"0 if the POTW is acceptable under the off-site policy (Appendix C).
EPA regulations cover general and specific prohibitions on discharges^ to POTWs.
The following criteria <10) should be used in selecting an appropriate POTW facility:
Compliance with all applicable laws.
The quantity and quality of the CERCLA IDW must be compatible with the POTW.
The POTW must have no unpermitted "releases."
The concentration of any hazardous substance must meet applicable pretreatment standards (CERCLA
IDW cannot upset the facility's operation and violate the permit).
The POTW must be in compliance with its National Pollutant Discharge Elimination System (NPDES)
permit.
The transport of IDW to the POTW and its placement in an impoundment must not create a potential for
ground water contamination.
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2.7 STATE REQUIREMENTS
State ARARs present an array of specific problems for CERCLA sites because thek goals and methods often differ
from federal environmental laws. CERCLA Section 121 and Section 300.400 (g) of the NCP provide that only
those state standards that are promulgated, identified by the state in a timely manner, and more stringent than federal
requirements may generally be ARARs. To be considered "promulgated," a standard must be legally enforceable
and of general applicability. A waiver is available if the state standard is applied only to CERCLA sites'". When
dealing with IDW, SMs must comply (to the extent practicable) with state promulgated and enforceable requirements
that are more stringent than federal requirements.
State hazardous waste regulations are among the most important environmental laws that may differ, in some states,
from federal law. EPA has authorized some states to administer and enforce RCRA hazardous waste management
programs. Regulations in these states may be more stringent or have a greater scope of coverage than the federal
RCRA requirements. If the CERCLA site is in a state with an authorized RCRA program, the RCRA requirements
promulgated by the state will replace the federal requirements as potential ARARs.
In addition to state RCRA regulations, other state legally enforceable standards may govern the handling of wastes.
However, the SM should be aware that ARAR waivers are generally available for state requirements specifically
aimed at CERCLA sites (see CERCLA section 121(d)(4)(E); 40 CFR 300.430(f)(l)(ii)(C)(5).
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3.0 IDENTIFICATION OF INVESTIGATION-DERIVED WASTES
To properly deal with IDW from Sis, the SM must know whether IDW contain CERCLA hazardous substances,
and whether these hazardous substances constitute either RCRA hazardous wastes or contaminants regulated under
other statutes. This section is intended to help the SM ascertain the types of IDW generated during the SI and, hi
particular, to determine whether IDW are either RCRA listed or characteristic hazardous waste.
There are several types of IDW generated during the SI. Examples include the following: (1) soil cuttings and drill
mud from soil boring or monitoring well installations; (2) purge water removed from wells before ground water
samples are collected; (3) water, solvents, or other fluids used to decontaminate field equipment and PPE; and, (4)
PPE and DE. These IDW can be contaminated with various CERCLA hazardous substances. To handle IDW in
compliance with regulations, reasonable efforts should be made to characterize the wastes.
3.1 EXTENT OF EFFORTS TO CHARACTERIZE WASTES
The efforts made to characterize IDW should be consistent with the limited scope and purpose of the SI. In most
cases, the limited scope of an SI makes it impracticable to characterize wastes to the same extent that might be done
in a remedial investigation/feasibility study (RI/FS). In particular, Contract Laboratory Program (CLP) testing
would not be warranted in most cases; instead, the nature of the wastes should be assessed by applying best
professional judgment, using readily available information about the site (such as manifests, storage records,
preliminary assessments, and results of earlier studies that may have been conducted and are available to the
Agency, as well as direct observation of the IDW for discoloration, odor, or other indicators of contamination).
The Agency has specifically indicated that IDW may be assumed not to be "listed" wastes under RCRA unless
available information about the site suggests otherwise (53 FR 51444, December 21, 1988). Similarly, RCRA
procedures for determining whether a waste exhibits RCRA hazardous characteristics do not require testing if the
decision can be made by "applying knowledge of the hazard characteristic in light of the materials or process used"
(40 CFR 262. ll(c)). The level of such knowledge required to make a determination with respect to IDW may take
into account considerations of practicability and should reflect the limited scope of the activity. In most instances,
a determination may be possible based on available information and professional judgment.
The fact that extensive resources need not be used in characterizing IDW does not mean that IDW can be assumed
to be nonhazardous unless clearly proven otherwise. Rather, the question is whether, given the limited information
that is likely to be available, the SM considers it more likely than not that the wastes are hazardous.
It should be noted that characterizing IDW is only the first step. For example, once it has been determined that
a RCRA hazardous waste is involved, the guidelines discussed in Section 2.4 for determining the extent to which
RCRA requirements must be complied with should be considered. Furthermore, the degree of certainty with which
IDW are characterized during site inspections will be less than during remedial actions. Therefore, even if the
waste is deemed not to be RCRA hazardous, RCRA requirements may be considered relevant and appropriate under
the specific circumstances at the site (see section 3.2.1).
3.2 RCRA HAZARDOUS WASTES AND CERCLA HAZARDOUS SUBSTANCES
Some CERCLA hazardous substances are RCRA hazardous wastes. Another category of CERCLA hazardous
substances are PCBs, which are fairly common at CERCLA sites. Identification of RCRA hazardous wastes and
PCB-contaminated IDW is important for making appropriate management decisions (see Sections 2.5, 3.2.1, and
3.2.2 of this guidance). The SM must know the difference between RCRA hazardous wastes and other CERCLA
hazardous substances because the presence of RCRA hazardous IDW invokes special technical considerations and
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management decisions due to RCRA regulations (particularly the LDRs). EPA recommends using knowledge of
IDW rather than testing the wastes to characterize them.
The SM should not assume that all IDW contaminated with CERCLA hazardous substances are RCRA hazardous
wastes, in the absence of positive evidence (e.g., manifests, records, knowledge of generation processes) to support
such an assumption. At the same time, however, the SM should determine whether IDW are RCRA hazardous
wastes, to the extent practicable, as discussed above.
The most important characterization decision is whether IDW contain "hazardous waste" under RCRA. This is
relevant to the ARAR status of LDRs and other RCRA requirements, and whether waste disposed of off-site must
be disposed of in a Subtitle C or Subtitle D facility. A solid waste is a RCRA hazardous wasteฎ if it contains a
listed waste or exhibits any of the hazardous characteristics and is not excluded from regulation as a hazardous
waste. (For purposes of the RCRA Subtitle C regulations, a solid waste is any discarded material (solid, sludge,
liquid, and compressed gas) that is not excluded under SWDA.) IDW generated during the SI may either exhibit
a RCRA characteristic or contain RCRA listed waste.
Under EPA regulations, soil and ground water may be considered contaminated environmental media. If they
contain listed hazardous waste, they must be managed as RCRA hazardous wastes as long as they "contain" the
listed waste. If IDW exhibit RCRA characteristics, they also have to be managed as RCRA hazardous wastes.
To properly handle IDW, the SM must make a reasonable effort to ascertain if they are RCRA hazardous. When
the SM determines that IDW do not fall in any listed waste category and does not display RCRA characteristics,
the wastes are not RCRA hazardous. Sections 3.2.1 and 3.2.2 help determine if IDW are RCRA characteristic
wastes or if they contain RCRA hazardous listed wastes.
Even if the IDW do not contain RCRA "hazardous waste," the SM should determine whether they contain other
CERCLA hazardous substances. CERCLA hazardous substances include, in addition to RCRA hazardous wastes,
substances, elements, compounds, solutions, or mixtures designated as hazardous or toxic under CERCLA itself
or under the authority of other laws such as TSCA, CWA, CAA, and SDWA. Therefore, even where RCRA is
not applicable, one of these statutes may be an ARAR. EPA presents a list of these hazardous substances in 40
CFR Part 302.4, Table 302.4.
3.2.1 RCRA CHARACTERISTIC WASTES
A solid waste is a RCRA characteristic hazardous waste if it exhibits the characteristic of ignitability, corrosivity,
reactivity (as defined in 40 CFR Part 261, Subpart C), or toxicity (toxicity characteristic leaching procedure, TCLP,
as described in 55 FR 11796-11877, March 29, 1990(11)).
IDW exhibit ignitabilitv if:
They are a liquid, other than an aqueous solution containing less than 24 percent alcohol by volume, and
have a flash point lower than 60ฐC (140ฐF).
They are not a liquid and are capable, under standard temperature and pressure, of causing fire and,
when ignited, create a hazard.
They are an ignitable compressed gas as defined in 49 CFR 173.300.
They are an oxidizer as defined in 49 CFR 173.151.
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IDW exhibit corrosivitv if:
They are aqueous and have a pH less than or equal to 2 or greater than or equal to 12.5.
They are a liquid and corrode steel at a rate greater than 6.35 mm (0.25 inch) per year at a test
temperature of 55ฐC (130ฐF).
IDW exhibit reactivity if:
They are normally unstable and readily undergo violent change without detonating.
They react violently with water.
They form potentially explosive mixtures with water.
When mixed with water, they generate toxic gases, vapors or fumes that pose a danger to human health
or the environment.
They are a cyanide- or sulfide-bearing waste capable of (at the pH range of 2 to 12.5) generating toxic
gases that can present a danger to human health or the environment.
They are capable of detonation or explosive decomposition.
They are a forbidden explosive as defined in 49 CFR 173.51.
IDW exhibit TCLP-toxicitv when its leachate contains certain contaminants at levels exceeding their regulatory
thresholds010. The TCLP has replaced the EP-toxicity test for identifying RCRA characteristic wastes. The new
procedure expands the number of chemicals regulated as hazardous wastes by adding 25 organic constituents to the
previous RCRA list of toxic chemicals, and by establishing regulatory levels for these chemicals (Appendix C).
The TCLP is designed to determine the mobility of both organic and inorganic contaminants present in liquid, solid,
and multiphasic wastes. A water containing less than 0.5 percent dry solid material, filtered through a 0.6 to
0.8-um glass fiber filter, is defined as the TCLP extract. If this extract contains a regulated compound above its
threshold level, then the water is hazardous by TCLP characteristic. If the filtered extract from the solid phase
contains a regulated compound above its threshold level, then the solid material is RCRA hazardous.
To identify RCRA characteristic waste(I), the SM may rely on knowledge of the properties of the substances from,
for example, the Material Safety Data Sheets (MSDS) prepared by manufacturers, or on the results of tests described
in 40 CFR 261.21 - 261.24. EPA recommends using knowledge of the properties of materials instead of testing
since most CERCLA wastes do not exhibit these RCRA characteristics. Therefore, the SM should not test IDW,
particularly if they are a soil of known RCRA characteristics, the AOC concept is applicable, and the wastes will
be buried on-site.
3.2.2 RCRA LISTED HAZARDOUS WASTES
Any type of IDW that contains listed hazardous wastes should be considered a RCRA hazardous waste. EPA has
developed four lists of RCRA hazardous wastes according to the sources of their origin and toxicity (40 CFR Part
261, Subpart D). These lists contain:
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Wastes from nonspecific sources (F wastes). Examples include spent halogenated solvents
(tetracbloroelhylene, methylene chloride), nonhalogenated solvents (xylene, acetone, ethyl ether), still
bottoms from the recovery of these spent solvents, and some wastewater treatment sludges.
Wastes from specific sources (K wastes). Examples include wastewater treatment sludges from the
production of zinc yellow and chrome green pigments, and still bottoms from the distillation of benzyl
chloride.
Discarded commercial chemical products, manufacturing intermediates, off-specification (off-spec)
chemicals (which, if they met specifications, would be listed), and container and spill residues that are
"acutely hazardous" (P-wastes). Examples include aldrin and phosgene.
Discarded commercial chemical products, manufacturing chemical intermediates, or off-spec commercial
chemical products that are "toxic" (U-wastes). Examples include cbiorobenzene and mercury.
To ascertain whether IDW constitute RCRA listed hazardous waste, the SM must first determine if the IDW contain
a component that may be a listed hazardous waste, and then decide whether that component meets the regulatory
description of that listed waste.
For example, to determine if solvents contaminating IDW are RCRA spent solvent F001-F005 wastes, the SM must
know if:
The solvents are spent and cannot be reused without reclamation or cleaning.
The solvents were used exclusively for their solvent properties.
The solvents are spent mixtures and blends that contained, before use, a total of 10 percent or more (by
volume) of the solvents listed in F001, F002, F004, and F005.
If the solvents contained in the IDW are RCRA listed wastes, the IDW are RCRA hazardous waste. When the SM
does not have guidance information on the use of the solvents and their characteristics before use, the IDW cannot
be classified as containing a listed spent solvent. When the solvents are not listed and IDW are not a characteristic
waste, the IDW should be declared nonhazardous.
For other F and K wastes, the SM must know the generation process information (about each waste contained in
the RCRA waste) described in the listing. For example, for IDW to be identified as containing K001 wastes that
are described as "bottom sediment sludge from the treatment of wastewaters from wood preserving processes that
use creosote and/or pentachlorophenol," the SM must know the manufacturing process that generated the wastes
(treatment of wastewaters from wood preserving process), feedstocks used in the process (creosote and
peotachlorophenol), and the process identification of the wastes (bottom sediment sludge).
P and U wastes cover only unused and unmixed commercial chemical products, particularly spilled or off-spec
products. Not every waste containing a P or U chemical is a hazardous waste. To determine whether a CERCLA
IDW contains a P or U waste, the SM must have direct evidence of product use. In particular, the SM should
ascertain, if possible, whether the chemicals are:
Discarded (as described in 40 CFR 261.2(a) (2)).
Either off-spec commercial products or a commercially sold grade.
Not used (soil contaminated with spilled unused wastes is a P or U waste).
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The sole active ingredient in a formulation.
Identification of a listed waste requires a great deal of care on the part of the SM, particularly if the IDW have to
be disposed off-site. For instance, depending on its source and prior use benzene may be an F waste, U waste, or
not a RCRA hazardous waste at all. The waste identification process requires access to manifests, storage records,
records of waste sources and their prior use, and other information that is reasonably ascertainable during the SI.
Visual inspection of the site or the waste generating process will sometimes be sufficient.
IDW from many Sis will not fit the definition of RCRA hazardous listed waste due to limited information. If there
is a probability that investigation-derived soil cuttings contain a RCRA listed waste, and a site manager intends to
leave them on-site within the AOC unit, a thorough evaluation of the waste is not necessary.
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4.0 PLANNING FOR IDW GENERATION AND MANAGEMENT
The most important phase of IDW management is planning for waste generation and handling before field activity
starts. In the planning phase of work, the SM must decide if IDW can be left on-site or must be disposed off-site.
Since some sites may have both RCRA hazardous and RCRA nonhazardous IDW, the SM must be familiar with
the NCP, and appropriate sections of RCRA, TSCA, CWA, and other relevant statutes.
Handling of RCRA hazardous IDW and IDW with high PCB concentrations (greater than 50 ppm) may involve
either moving the IDW within an AOC unit, or containerization, storage, testing, treatment, and off-site disposal.
Handling of RCRA nonhazardous IDW usually involves various methods of on-site disposal. EPA prefers to leave
both RCRA hazardous and nonhazardous IDW on-site whenever it complies with regulations and does not pose any
immediate threat to human health and the environment. This approach speeds up the site assessment process while
avoiding high costs of off-site disposal, particularly when off-site disposal does not result in any benefits to human
health and the environment.
The approach to IDW generating and handling must be described in the SI work plan which is subject to EPA
approval. The SM must base the approach on available information and best professional judgment. The work plan
should describe the logic behind the proposed approach to IDW handling, and in particular:
Methods of waste quantity minimization.
Types of waste.
Quantity of waste.
ARARs of concern, and limits of practicability in light of the scope of the SI.
On-site and off-site handling methods, where necessary.
Delineated AOCs for RCRA waste to be handled on-site.
Containerization, storage, testing, and pick-up methods for wastes to be disposed off-site.
The description of the approach to IDW handling must be as detailed as possible, so the inspection team can execute
the work plan without any major problems in the field. If the SI results in generating any IDW off-site, they should
be handled the same way as if they were generated on-site.
4.1 AUTHORITY TO MANAGE IDW
EPA views IDW management as an inherent part of the site investigation process authorized under CERCLA Section
104 (e) (4). Should a site owner refuse to provide access, EPA has the authority to issue an administrative order,
or seek a court order, to gain site access for environmental sampling. Non-compliance with such an order may
result in imposing the sanctions authorized under CERCLA Section 104 (e) (5), including penalties.
EPA believes the approach contained in this guidance to be reasonable and protective of human health and the
environment. The limited scope and purpose of the SI activity is not intended to address contamination at a
particular site (other than to gather information about it). Generally, SI activities that leave conditions essentially
unchanged (e.g., returning soil cuttings to the location from which they were taken) will comply with ARARs. The
SM should seek to obtain the appropriate management approach for IDW outlined in this guidance when negotiating
site access agreements.
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Note, however, that some site circumstances may warrant exceptions to the IDW management approach outlined
in this guidance. The SM should use professional judgment in recognizing situations where special steps are
required to avoid creating additional threats to human health and the environment. When substantial doubt exists
regarding the scope of EPA's authority to carry out the proposed plan for IDW management, the SM should consult
legal counsel.
4.2 WASTE MINIMIZATION
The SM should select investigation methods that minimize the generation of IDW, particularly RCRA hazardous
wastes. The SI team should limit contact with contaminants, and use drilling and decontamination methods (such
as steam cleaning) that minimize PPE, DE, decontamination fluids, and soil cuttings. In particular, the inspection
team should minimize the amounts of solvents used for decontamination or eliminate solvents. Minimizing the
amount of wastes generated reduces the number of IDW handling problems and costs of disposal. The waste
minimization approach should be addressed in the SI workplan.
4.3 TYPES, HAZARDS, AND QUANTITIES OF IDW
To handle IDW properly, the SM must determine the types (such as soil cuttings, ground water, decon fluids, PPE
or DE), characteristics (whether RCRA hazardous or containing other CERCLA hazardous substances), and
quantities of anticipated wastes. As discussed in Section 3.1, testing will generally not be required to characterize
waste to the extent appropriate for an SI. In addition to direct observation of the IDW for evidence of
contamination, the SM should review and analyze all available information about the site such as:
Results of previous EPA preliminary assessments or site investigations.
Environmental permits.
Results of inspections by state, local, or federal agencies, or private parties.
Records from community relations interviews.
Any other helpful data such as tax records or aerial photography.
Upon ascertaining the types of anticipated IDW, the SM should determine IDW characteristics, in particular whether
the anticipated waste is RCRA hazardous (see Section 3.2 of this guidance) or contains high concentrations of PCBs.
For RCRA hazardous IDW, the SM should determine whether the IDW pose an increased hazard to human health
and the environment relative to conditions that existed prior to the SI. Whenever field analytical screening
instruments are used during the SI, the SM may plan to evaluate the analytical results as helpful indicators of IDW
characteristics. However, the SM must remember that most of these tests are not RCRA tests, and that the test
results usually do not identify RCRA hazardous wastes. The SM must also determine the exact properties of RCRA
nonhazardous IDW to select an appropriate disposal facility (e.g., POTW) when the circumstances require off-site
disposal.
Upon determining the types and characteristics of IDW to be generated, the SM must assess the anticipated
quantities which vary depending on the size of a site and the scope of the SI. As a point of reference, a typical SI
may result in generating a range of 1 to 3 drums of PPE and DE, 50 to 1,500 gallons of decontamination water,
1 to 3 pints of other decontamination fluids (e.g., organic solvents) and, depending on the number of wells installed
or sampled, 0 to 13 drums of soil cuttings and 0 to 200 gallons of well purge water. The SM should calculate the
quantity of the anticipated soil cuttings and ground water from the dimensions of wells and the depth to the ground
water table. The SM should use experience to assess the amount of decontamination fluids (decontamination water
and organics), PPE, and DE.
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4.4 DECISION TREE
Upon designating IDW either RCRA hazardous or RCRA nonhazardous, the SM should determine the appropriate
handling approach. The SM should use the decision tree (Figures 1, 2, and 3) which, combined with the SM's best
professional judgment, will help select the best approach for IDW management and the steps that are involved in
executing the approach. The decision tree indicates when and how IDW should be handled on-site or disposed off-
site.
The decision tree summarizes basic elements of planning for IDW handling such as waste minimization,
characterization, and management. It shows the steps that must be followed in the process. For example, the "Plan
for Waste Management According to IDW Characteristic" branch (Figure 1) indicates that the SM has two options:
either to handle IDW on-site or to dispose of it off-site. If the SM's decision is to leave IDW on-site, then the "On-
Site Handling" branch (Figure 2) indicates what choices and steps can be involved in this approach depending on
die type of IDW. The "Off-Site Disposal" branch (Figure 3) of the decision tree presents options available for
handling IDW off-site and steps involved in executing these options. The SM should select one of the available
options for a given type of IDW.
For example, when IDW from the same site are expected to encompass ground water, PPE, DE, decontamination
fluids, and soil cuttings that are RCRA hazardous (or contaminated with PCBs) wastes, the decision tree (Figures
1, 2) calls for either handling the cuttings on-site in an AOC unit, or in the site's existing treatment or disposal unit
(TDU), or disposing of them off-site. EPA prefers to handle most IDW on-site, but if circumstances require, the
off-site option is also available. If PPE and DE can be decontaminated and, according to the SM's best professional
judgment, rendered nonhazardous, the decision tree indicates (Figure 3) that these wastes should be double-bagged,
and deposited either in an industrial dumpster (on-site or at the EPA warehouse), or in a municipal landfill (RCRA
Subtitle D facility). If the SM anticipates that PPE and DE cannot be rendered RCRA nonhazardous after
decontamination and the total quantity of IDW generated exceeds 100 kg at an individual site, the decision tree
indicates (Figures 1,2) that the wastes should be drummed and disposed off-site at an appropriate facility by a
subcontractor, and the SM should start the subcontracting process before field activity begins. If the total quantity
of RCRA hazardous PPE and DE is less than 100 kg and this quantity represents the entire amount of IDW
generated during the SI, the small quantity waste generator exemption applies and the wastes can be disposed of
in a municipal landfill with state approval. However, EPA prefers to send even small quantities of RCRA hazardous
PPE and DE to RCRA hazardous waste facilities.
The decision tree points out that when the ground water is RCRA nonhazardous (the most common situation), the
water may be managed on-site (Figure 2) using one of a few simple techniques. If decontamination fluids are
RCRA nonhazardous, they should be handled similarly. The decision tree indicates (Figure 3) that RCRA hazardous
organic decontamination fluids should be handled off-site.
Sections 4.5 and 4.6 of this guidance present the details of EPA-preferred approaches to IDW management.
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Figure 1
IDW Management Decision Tree
RCRA Hazardous and
High-Concentration PCBa
to Figure 3
Plan for CW Handing In
Work Plan Including Technlqow
Minimizing Wasta Generation
Characterize Waste (Usa
Available Information and
Best Professional Judgment)
Determine Whether On-Slte
Handling of IDW Would Create
Increased Risks at the Site
Plan (or Waste Management
According to IDW
Characteristic
Leave
On-Slte
to Figure 3
to Figure 2
to Figure 2
(1) Soil cuttings, ground water, and decontamination fluids creating increased hazards at the site should be disposed off-site. Before and after the SI,
determine anticipated waste quantity and applicable regulations for waste generators.
(2) If not prohibited by other legally enforceable requirements such as state ARARs.
(3) Justified only in rare circumstances when a RCRA nonhazardous waste is a state hazardous waste and state legally enforceable
requirements call for waste removal, or if leaving the waste on-site would significantly affect human health and the environment.
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Figure 2
IDW Management Decision Tree
On-Stta Handling
(Approach Cannot Violate
Federal and State Regulations)
from Figure 1
Inform Owner that IDW
Will be Lett On-Site
(RCRA Hazardous and Nonhazardous) |
(Only BCRA Nonhazardous)
Put Back to
Boring
SoH
Spread Around Boring
and Cover with Surface Soil
(Only RCRA Nonhazardous
andPCB-Free)
Clean
PPE&DE
1 1 1
To Existing On-Slta
Disposal/Treatment Industrial
Unit (If Suitable) ป Dumpster (1)
Put In Pit
(BCRA Waste wtlhln
an AOC Unit Covered
with Surface Soil)
I
Decon Ground
Fluids Water
I I
III I
Onto To Existing Discharge
Ground Disposal/ Next to
Treatment Unit*2* Wf)|j
(1) Clean PPE and DE may also go to the nearest landfill or to an EPA warehouse dumpster.
(2) If the receiving unit meets the off-site policy acceptability criteria.
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Figure 3
IDW Management Decision Tree
r
Aoff-SMe
Disposal
from Figure 1 I wtota Subcontracting Process
Inform Owner that IDW Will be Stored
| ' 1 ,
PPE and DE Decontamination
Fluidsฎ
1_
i 1
Ground Water 3^
' 1
Decontaminate
PPEandDE
Containerize
, 1
Store (3)
1
Pint
1 ~ Tesflnj
(i)
orDrum'2'
Store"'
Jlze Subcontract for
], Pickup and Disposal
i
Test
1 '
Pickup
and
Dispose
Municipal ^A On-Slte RCRA Hazardous ^ TSCA other
u" TT'" Dump8tef(11 wasteFad%w ฃฃ ซ
* *
(1) Only RCRA nonhazardous waste.
(2) Only RCRA hazardous waste generated In quantities greater then 100 kg/month when sent off-site.
(3) In accordance with accumulation requirements for RCRA hazardous wastes.
(4) Only if the conditionally exempt small quantity generator exception applies.
(5) If the conditionally exempt small quantity generator exception applies, off-site disposal of decon fluids may not require subcontracting.
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4.5 ON-SITE IDW HANDLING AND MANAGEMENT OPTIONS
If IDW are RCRA nonhazardous soil or water, they should be left on-site unless other circumstances, such as a state
ARAR or a high probability of serious community concerns, require off-site disposal. RCRA hazardous soil also
may be left on-site within an AOC unit. The SM must determine procedures for handling IDW on-site and notify
the site owner in the site access agreement form that IDW such as soil cuttings and water will be left on-site. If
the .SM intends to leave IDW on-site, the waste should not be containerized and tested.
The on-site handling options available to the SM when IDW are RCRA nonhazardous are listed below.
For soil cuttings:
1. Spread around the well
2. Put back to the boring
3. Put into a pit within an AOC
4. Dispose of at the site's operating TDU.
For ground water:
1. Pour onto ground next to the well to allow infiltration
2. Dispose of at the site's TDU.
For decontamination fluids:
1. Pour onto ground (from containers) to allow infiltration
2. Dispose of at the site's TDU.
For decontaminated PPE and DE:
1. Double bag and deposit in the site or EPA dumpster, or in any municipal landfill
2. Dispose of at the site's TDU.
If IDW are considered RCRA nonhazardous due to lack of information on the waste hazard, the inspection team
should have an alternative plan for handling IDW if field conditions indicate that these wastes are hazardous. In
such a case, the minimum requirement is to have an adequate number of containers available for collecting ground
water, decontamination water, or soil cuttings.
If IDW consist of RCRA hazardous soils that pose no immediate threat to human health and the environment, the
SM should plan on leaving it on-site within a delineated AOC unit. However, before deciding to leave RCRA
hazardous soil on-site, the SM must consider the proximity of residents and workers in the surrounding area. The
SM must always use best professional judgment to make such decisions. Planning for leaving RCRA hazardous
soil on-site involves:
Delineating the AOC unit.
Determining pit locations close to the borings within the AOC unit for waste burial.
Covering hazardous IDW in the pits with surficial soil.
Not containerizing and testing wastes designated to be left on-site.
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Another alternative for handling RCRA hazardous soil is disposal in a TDU located on the same property as the
AOC under investigation. If the TDU is outside the AOC, it must comply with the off-site policy. If any organic
decon fluids are generated (which are RCRA hazardous wastes), they should be disposed of off-site in compliance
with the off-site policy or in compliance with the conditionally exempt small quantity generator exemption. Small
quantities (i.e., no more than 100 kg/month) of organic decon fluids may be containerized off-site prior to delivery
to a hazardous waste facility.
4.6 OFF-SITE DISPOSAL OF IDW AND MANAGEMENT OPTIONS
IDW should be disposed off-site in the following situations:
They are RCRA hazardous water.
They are RCRA hazardous soil that may pose a substantial risk if left at the site.
They are RCRA hazardous PPE and DE.
If leaving them on-site would create increased risks at the site.
RCRA nonhazardous wastes could be disposed of off-site at appropriate RCRA nonhazardous facilities that are in
compliance with CERCLA section 121(d)(3) and the off-site policy when it is necessary to comply with legally
enforceable requirements such as state ARARs that preclude onsite disposal. IDW designated for off-site disposal
must be properly containerized, tested, and stored before pick-up and disposal. Decontaminated PPE and DE should
be double-bagged if seat to an off-site dumpster or a municipal landfill.
Planning for off-site disposal should include the following EPA guidelines:
Incorporating a provision in the site access agreement form to inform the site owner that containerized
IDW may be temporarily stored on-site while awaiting pickup for off-site disposal. The agreement
should also request the owner's cooperation.
Initiating the bidding process for IDW testing, pick-up, and disposal. If there are any subcontracting
needs in planning for off-site disposal, EPA should specify what means of disposal will be needed (i.e.
various types of treatment, landfilling, etc.). Since RCRA hazardous IDW must go to RCRA hazardous
waste disposal facilities that comply with the off-site policy, the SM should obtain a list of available
facilities from the RPO. Each EPA region maintains a list of RCRA hazardous TSD facilities that meet
the conditions of the off-site policy. The recent addition of 25 new toxicity characteristic constituents
to the list of toxic chemicals subject to RCRA hazardous waste regulations may result in fewer facilities
available to handle IDW in the future. The SM must also check the selected facility's compliance
before IDW pick-up. If IDW are RCRA nonhazardous, the SM must also check if the receiving RCRA
nonhazardous waste facility complies with the off-site policy.
Coordinating IDW generation with testing and pick-up. IDW samples should be collected hi accordance
with the "Test Methods for Evaluating Solid Waste" guidance manual (SW 846), and shipped for RCRA
tests (and other tests, if necessary) as early as possible during the SI. This approach shortens the
storage time and reduces the number of site visits to pick up waste. IDW need not be analyzed by a
CLP laboratory. The SM should use the laboratory services of the pickup and disposal subcontractor,
obtain an EPA ID number and manifest form for RCRA hazardous IDW, and a bill of lading for RCRA
nonhazardous IDW.
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Preparing adequate numbers and types of containers. Drums should be used for collecting small
amounts of IDW. Larger amounts of soil and water can be contained in Baker tanks, poly tanks, and
bins. PPE and DE should be double-bagged for disposal at a municipal landfill or collected in drums
for disposal at a hazardous waste facility.
Designating a storage area (either within the site's existing storage facility, existing fenced area, or
within a temporary fence constructed for the SI). No humans, children in particular, may have access
to the storage area. If a temporary storage facility is to be constructed, its location and size must be
agreed upon with the site owner, and all construction materials should be delivered to the site before
or on the first day of the SI.
EPA expects that complying with this guidance will limit on-site storage to, at most, the time required to complete
any testing (usually less than 6 weeks) required by subcontractors in order to arrange for transportation. In most
cases, this will not result in exceeding the regulatory 90 day storage time for quantities greater than 1,000 kg/month
regardless of the quantity of IDW. In cases where the regulatory 90 day storage time for quantities greater than
l',000 kg/month is exceeded, the SM must initiate a subcontract bidding process to remove IDW wastes off-site and
a permit is not required.
All IDW shipped off-site, whether RCRA hazardous or not, must go to facilities that comply with the off-site policy,
and the SM must check that subcontractors operate in accordance with this policy.
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5.0 IMPLEMENTING THE BOW MANAGEMENT PLAN
The work plan describing the anticipated approach and procedures for IDW management should be clear, detailed,
and concise to allow the field team to follow without problems. The plan should also be flexible enough to allow
slight modifications due to unexpected and unforeseen field conditions. The SM should document implementation
of the work plan in the field log book and describe the appearance of IDW as well as any modifications to the
original handling approach. The SM must also ensure that IDW is handled in a fashion that does not generate public
concerns.
5.1 ON-SJTE IDW MANAGEMENT
If ground water or decontamination fluids are to be collected during the SI, adequate numbers and types of
containers must be delivered to the site before the SI starts. The SM must check if the containers are clean and
measure the pH of containerized waters even if these waters were originally determined to be RCRA nonhazardous.
When the work plan calls for ground water to be poured onto the ground next to the well, then the SM must verify
the original determination (e.g., pH testing) before allowing the water to infiltrate the ground.
If the SM, using best professional judgment, renders PPE and DE RCRA nonhazardous after decontamination, the
materials are to be double-bagged and the SI team should take them to either the on-site or EPA warehouse
dumpster, or to a municipal landfill. The location of PPE and DE disposal should be described in the field log book.
If the work plan calls for on-site management of RCRA hazardous soil cuttings, a shallow pit should be made close
to the borings within a delineated AOC unit. IDW should then be buried in this pit and covered with surficial soil.
The SM may decide to have more than one IDW burial pit within an AOC unit. The appearance of the generated
IDW, and the size and location of the pit, must be described in the field log book.
If the work plan indicates that both RCRA hazardous and nonhazardous IDW are to be disposed in an operating
treatment and disposal unit located on the same property as the IDW sources (but outside the AOC), then the SM
must verify that the unit complies with the requirements of the off-site policy at the time of disposal.
5.2 OFF-SITE DISPOSAL OF IDW
Off-site disposal of RCRA hazardous and nonhazardous IDW involves the following common elements:
Coordinating IDW handling.
Identifying and verifying an acceptable disposal facility before the SI.
Finalizing the subcontract.
Containerizing IDW.
Labeling containers.
Storing containers.
Sampling and testing of IDW.
Transporting IDW off-site.
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Disposing at a disposal facility.
Documenting the process.
Coordination of IDW handling is important because it affects the schedule and costs of the SI. Most coordination
must be done before field activity starts. Before starting the field work, a subcontractor should be selected so the
SM can coordinate field work and IDW generation with the subcontractor's sampling, testing, pick-up, and disposal
activities. Before containerizing IDW, the SM should check the containers to ensure they are clean and do not
contain any residues from past use. All filled containers should be dated and labeled as either RCRA hazardous
or RCRA nonhazardous and stored in a safe manner in compliance with relevant regulations. The SM should also
obtain an EPA ID number for a RCRA hazardous waste from the RPO.
If & temporary storage facility must be constructed, the SM should have all construction materials, such as chain-link
fencing, posts, and other needed materials, delivered to a location agreed upon with the site owner before the SI.
The SM should ensure that the storage time is short and never exceeds the regulatory 90 days for RCRA hazardous
waste even if the small quantity generator exemption applies.
The SM should check that the subcontractor collects IDW analytical samples for the disposal facility "profile
analysis" using EPA-recommended methods described in "Test Methods for Evaluating Solid Waste
Physical/Chemical Methods" - SW 846. One composite sample should be collected from each large container or
from a group of drums. Small samples of soil cuttings or drilling mud should be taken from several locations and
depths of the handling containers, homogenized in a decontaminated bucket, and placed in sampling jars. Sampling
of PPE and DE should be avoided. The SM should also ensure that the chain-of-custody form for shipping IDW
samples is used. When the subcontractor's analysis confirms that IDW is a RCRA restricted hazardous waste, the
SM should check that the subcontractor:
Treats the IDW to meet the treatment standards (if needed) before land disposal.
Complies with the LDR notification requirements of 40 CFR Part 268.
Containerized and tested RCRA hazardous IDW must be accompanied by a Hazardous Waste Manifest (and other
forms required by state laws) if hauled off-site. RCRA nonhazardous IDW should have a bill of lading if
transported off-site. The SM must obtain all required forms, fill them out clearly and completely, and have the
forms signed by the RPO. The SM, if authorized, may sign the forms on behalf of EPA. Before transporting IDW
to the selected facility, the SM must verify the facility's compliance with the off-site policy at the time of disposal.
If the facility's status has changed since the award of the contract, (due to receiving citations or fines), the SM is
responsible for finding a replacement facility without delay. The SM must receive a copy of the IDW analytical
results and a confirmation of disposal from the subcontractor.
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6.0 row HANDLING COSTS AND SUBCONTRACTING
This section presents and compares the costs of both on-site and off-site IDW management with emphasis on the
costs of off-site disposal. The costs presented here are for general reference.
The costs of off-site IDW disposal have been increasing for several years and this trend is expected to continue in
the future. Off-site IDW handling involves the use of a subcontractor to haul and dispose IDW in an appropriate
facility that complies with the off-site policy. Most wastes generated during the SI and designated for off-site
disposal are liquids, either RCRA hazardous or nonhazardous, which go to either RCRA wastewater treatment plants
or POTWs. Solid IDW usually go to land disposal facilities.
On-site IDW handling, the EPA-preferred approach, involves the use of a variety of simple techniques for leaving
the IDW in existing waste areas. These techniques include pouring RCRA nonhazardous decontamination fluids
and ground water onto the ground, and burying soil cuttings in a shallow pit in the investigation area.
6.1 ON-SITE row MANAGEMENT
On-site IDW handling generally incurs no costs and does not delay the SI. Drums may be needed for collecting
water. However, these drums will be recovered and reused on other Sis, so the cost of purchasing drums,
distributed over several Sis, is negligible. The cost of digging shallow pits can be covered under the drilling
subcontract. Spreading soil cuttings around the boring, or pouring ground water onto the ground, incurs no costs.
6.2 OFF-SITE DISPOSAL OF IDW
Handling IDW off-site involves hiring a subcontractor to provide transportation, testing, and disposal services. This
approach allows the waste generator to select the most technically advanced and economically suitable disposal
facility that complies with regulations. However, off-site management has several disadvantages including: (1)
increasing costs of the services; (2) loss of control over the fate of IDW while still being liable for the waste; (3)
potential for accidental spills during transportation; (4) difficulty in finding a suitable disposal facility; and (5) the
reluctance of states to accept out-of-state wastes for disposal.
The costs of off-site IDW handling consist of the following elements: (1) containerization; (2) testing; (3)
transportation; and (4) disposal. The costs of containers (usually 55-gallon drums) used to collect waste is about
$50/drum. These containers may be purchased by either EPA or the subcontractor. The cost of containers
purchased by subcontractors is usually higher, therefore, the SM may decide to purchase all necessary containers.
The cost of the "profile analysis," performed by the subcontractor to verify the waste hazard prior to transport is
between $40 and $300/sample. The total cost of the analysis depends on the number of samples and the parameters
analyzed. The cost of transportation varies depending on factors such as the distance between the site and the
disposal facility, the number of drums (the price per drum is lower when more drums are transported), and whether
the pickup service is set for an individual generator or for several waste generators which is less expensive. In
1990, the estimated price range for waste transportation (regardless of whether IDW are hazardous) was between
$35 to $600/drum.
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The costs of disposal depend on the waste hazard, matrix, and amount. The ranges of costs per drum are presented
below:
RCRA nonhazardous liquid:
RCRA hazardous liquid:
RCRA nonhazardous solid:
$12.50 - 345/drum
$155 - 550/drum
$66 - 135/drum
RCRA hazardous solid: $145 - 615/drum
Additional costs of handling IDW off-site include:
Storage.
Field trips (to assist in waste sampling and pickup).
Procurement expenses.
If IDW on-site storage is not available before pickup, a chain-link fence can be built at an average cost of $600
($300 for the materials and $300 for labor). The cost of procurement is estimated at about $300 per site. The cost
of the field trips depends on the coordination of waste generation, testing, and pickup.
The site manager must select a subcontractor before field work is completed, so the subcontractor can collect IDW
samples for the "profile analysis" while the SM is still on-site. This approach requires only one more field trip to
assist in the waste pickup. If two additional trips are needed (one for collecting IDW samples and one for IDW
pickup), the costs of IDW disposal increase significantly. For example, if there are two drums to dispose of, the
transportation, testing, and disposal cost is $700, and one field trip costs $500, the total cost of IDW handling is
$1,200. An additional field trip would result in a total cost of $1,700, a 42 percent increase.
The approximate cost ranges of managing one drum of IDW off-site, depending on the waste hazard, are presented
below:
WASTE
RCRA Hazardous
Solid
RCRA Non-
Hazardous Solid
RCRA Hazardous
Liquid
RCRA Non-
Hazardous Liquid
CONTAINER
($)
50
50
50
50
TEST
($)
20-150
20-150
20-150
20-150
TRANSPORTATION
($)
35-600
35-600
35-600
35-600
DISPOSAL
($)
145-615
66-135
155-550
12.50-345
STORAGE
PROCUREMENT
AND FIELD TRIPS
($)
233
233
233
233
TOTAL*
($)
500-1650
400-1200
500-1600
350-1400
Based on the following assumptions: (1) 6 drums/site, (2) 1 sample/2 drums and, (3) only one field trip required
for waste pickup at a cost of $500/6 drums ($83/drum).
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The role of the SM in coordinating field activities, the subcontracting process, and IDW management is crucial to
reducing the costs of IDW management. Disposing IDW off-site always results in high costs regardless of the waste
hazard because there is no significant difference between the costs of disposal of hazardous and nonhazardous
wastes. The SM should apply the most efficient management techniques to lower the costs of IDW handling
whenever possible, and when such practices do not threaten human health and the environment.
6.3 SUBCONTRACTING
To implement subcontracting services for off-site disposal of IDW, the SM should refer to Federal guidelines.
These guidelines are available from the Federal Aquisition Regulations (FAR). Federal Superfund contractors
generally follow these guidelines.
Names of these subcontractors are available from either a local telephone directory, a state environmental agency
list (in some states), or from the Hazardous Materials Control Directory (published annually by the Hazardous
Materials Control Research Institute. Waste management facilities of all prospective bidders must be in compliance
with the off-site policy during the bidding process and when the IDW are transported and disposed of. The SM
and EPA are responsible for verifying the subcontractor's facility compliance with the policy. If the selected
facility's status changes before the date of transport and disposal, the subcontract should be immediately awarded
to the next lowest bidder if this bidder is able to meet the regulatory storage time limits.
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REFERENCES
1. 40 CFR Part 300, National OH and Hazardous Substances Pollution Contingency Plan, Final Rule, 55 FR 8666-
8865, March 8, 1990 (see Appendix A - Relevant Parts of the NCP).
2. 40 CFR Parts 240-280, Solid Waste Regulations, 1988.
3. 40 CFR Part 300.440, Amendment to the National Oil and Hazardous Substances Pollution Contingency Plan;
Procedures for Planning and Implementing Off-Site Response Actions; Proposed Rule, 53 FR 48218-48234,
November 29, 1988.
4. OSWER Directive 9834.11, November 13, 1987 - "EPA Off-Site Policy."
5. OSWER Directive 9347.3-05 FS, July 1989 - Superfund LDR Guide #5 (see Appendix B).
6. 40 CFR 761.60 - 761.79 - TSCA Regulations, 1988.
7. OSWER Directive 9330.2-4, April 15, 1986 - "Discharge of Wastewater from CERCLA Sites into POTWs"
(see Appendix C).
8. "CERCLA Site Discharges to POTWs" - Guidance Manual (EPA/540/G-90/005, August 1990).
9. 40 CFR 403.5 CWA Regulations, 1988.
10. "CERCLA Compliance with Other Laws Manual" (Part I - EPA/540/G-89/006, Part H - EPA/540/G-89/009,
1989).
11. 40 CFR Part 261 et al., Hazardous Waste Management System; Identification and Listing of Hazardous Waste;
Toxicity Characteristics Revisions; Final Rule 1990 (see Appendix D - TCLP Constituents Table).
35
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APPENDIX A
RELEVANT PARTS OF THE NCP
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Thursday
March 8, 1990
Part II
Environmental
Protection Agency
40 CFR Part 300
National Oil and Hazardous Substances
Pollution Contingency Plan; Final Rule
Printed on Recycled Paper
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30
Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
300.420(c)(5) describes the information
contained in a lead-agency report
following completion of a remedial site
investigation, including documentation
as well as sampling data and potential
risks to humans and the environment.
Response to comments: A commenter
asked that the NCP state that
reasonable efforts will be made during
the site investigation phase to identify
PRPs and provide them copies of the
preliminary assessment/site
investigation (PA/SI) report and an
opportunity to comment.
The removal and remedial processes
as currently outlined in the NCP provide
PRPs with a reasonable opportunity to
review and comment on lead agency
actions at a site when the proposed plan
is made available. Before this time,
documents placed in the administrative
record, including the PA/SI, are
available for public inspection. In
addition, PRPs that are interested in
more extensive involvement in the
investigation process may agree to
undertake removal or remedial actions
through a settlement agreement with
EPA. They may be granted substantially
more site involvement than non-settling
PRPs.
Extending the formal review and
comment period to PRPs as far back in
the removal and remedial process as the
PA/SI stage would unnecessarily slow
down preliminary fact-gathering at a
site. In cases where removal actions are
considered emergency or time-critical,
such review and comment time would
unjustifiably delay response to a
dangerous situation. Also, in most cases,
the PRP search has not been completed
or even started in a comprehensive
manner at the time of the PA/SI.
Accordingly, specifying formal
procedures for PRP involvement at that
time is not practical.
Final rule: EPA is promulgating
งง 300.410(c}(2) and 300.420(c)(5) as
proposed.
Name: Section 300.410(g). Notification
of natural resource trustee.
Final rule: Section 300.410(g) is
revised as follows (see preamble
discussion on ง 300.615):
If natural resources are or may be injured
by the release, the OSC or lead agency shall
ensure that state and federal trustees of the
affected natural resources are promptly
notified in order that the trustees may initiate
appropriate actions, including those
identified in subpart G of this part. The OSC
or lead agency shall seek to .coordinate
necessary assessments, evaluations,
investigations, and planning with such state
and federal trustees.
Name: Sections 300.415(b)(4) and
300.420(c)(4). Sampling and analysis
plans.
Proposed rule: Proposed ง 300.415 did
not describe sampling requirements.
Proposed ง 300.420(c)(4) described the
procedures necessary for preparing a
site-specific sampling plan for a
remedial site inspection.
Response to comments: One
commenter stated that EPA should
revise ง 300.420(c)(4) to specify review
of the sampling plan to ensure that
appropriate sampling and quality
control procedures are followed. In
response, EPA is revising the description
of the site-specific sampling plan in
proposed ง 300.420(c)(4) to conform with
the purpose of the quality assurance
project plan (QAPP) defined in ง 300.5
and the QAPP and sampling and
analysis plan described in
ง 300.430(b)(8), which states that such
plans will be approved by EPA. This
change emphasizes the similarity of
these activities in the site evaluation
and remedial investigation parts of the
program. In addition, EPA believes that,
when samples will be taken, it is
appropriate to describe sampling
requirements for non-time-critical
removal actions to ensure that data of
sufficient quality and quantity will be
collected for this type of action.
EPA also notes that portions of the
QAPP may incorporate by reference
non-site-specific standardized portions
of already-approved QAPPs, especially
those portions addressing policy and
organization, or describing general
functional activities to be conducted at a
site to ensure adequate data. This
eliminates the necessity to reproduce
non-site-specific quality assurance
procedures for every site.
Final rule: Proposed งง 300.415(b)(4)
and 300.420(c}(4) are revised as follows:
1. In ง 300.415(b)(4), a requirement has
been added for developing a sampling
and analysis plan, when samples will be
taken.
2. Section 300.420(c)(4) is revised to
better describe the required contents of
the sampling and analysis plan.
Section 300.415. Removal Action.
Name: Section 300.415(b)(5)(ii).
Removal.action statutory exemption.
Proposed rule: CERCLA section
104(c)(l)(C) provides a new exemption
to the statutory limits on Fund-financed
removal actions of $2 million and 12
months. This exemption, stated in the
NCP in ง 300.415(b)(5)(ii), is applicable
when continued response is otherwise
appropriate and consistent with the
remedial action to be taken. EPA
expects to use the exemption primarily
for proposed and final NPL sites, and
only rarely for non-NPL sites (see 53 FR
51409).
Response to comments: One
commenter supported EPA's proposal to
allow waiver of the limits on Fund-
financed removal payments if such an
exemption is consistent with remedial
actions.
One commenter stated that the
decision to engage in a removal action
should be based on site conditions and
their impact on health and the
environment, not cost or time; that once
EPA concludes that a removal action is
appropriate, the various alternatives
should be analyzed at both likely NPL
and non-NPL sites equally. The
commenter felt that EPA should use the
consistency exemption more liberally
where time, rather than money, was the
complicating factor.
In response, Congress has made the
determination that cost and time are
relevant factors in deciding how
extensive a Fund-financed removal
action may be; thus, contrary to the
commenter's remark, EPA will continue
to consider such factors. Further,
Congress did not differentiate between
time and dollar limits in setting the
exemptions; EPA notes that exceeding
the time limit will often also increase the
cost of a removal action, even though it
does not necessarily raise the cost to
over $2 million. Thus, EPA does not
believe it should set different criteria for
their use.
The new exemption from the time and
dollar limits applies to any Fund-
financed removal and thus encompasses
state-lead as well as EPA-lead
responses. Actions where EPA has the
lead, but is to be reimbursed by private
parties or other federal agencies, are
still subject to the statutory limits and
provisions for exemption.
Because the exemption requires
consistency with the remedial action to
be taken, its use is well suited to
proposed or final NPL sites where
remedial action is likely to be taken. It
may also be appropriate to use this
exemption at some non-NPL sites where
justified on a case-by-case basis.
Final rule: EPA is promulgating the
rule as proposed.
Name: Section 300.415(i). Removal
action compliance with other laws.
Existing rule: The current NCP in
ง 300.65(f) requires that Fund-financed
removal actions and removal actions
pursuant to CERCLA section 106 attain
or exceed, to the greatest extent
practicable considering the exigencies of
the circumstances, applicable or
relevant and appropriate federal public
health and environmental requirements.
Other federal criteria, advisories, and
guidance and state standards are to be
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Federal Register / Vol. 55, No. 46 / Thursday. March 8, 1990 / Rules and Regulations 31
considered, as appropriate, in
formulating a removal action.
Proposed rule: Proposed ง 300.415Q)
(renumbered as 300.415(i] in the final
rule) required that removal actions
attain, to the extent practicable
considering the exigencies of the
situation, all state as well as federal
applicable or relevant and appropriate
requirements (ARARs).6 Other federal
and state criteria, advisories, and
guidance shall, as appropriate, be
considered in formulating the removal
action. The proposed revisions also note
that statutory waivers from attaining
ARARs may be used for removal
actions. In addition, the preamble to the
proposed revisions provided guidance
clarifying three factors to be considered
in determining the "practicability" of
complying with ARARs: The exigencies
of the situation, the scope of the removal
action to be taken, and the effect of
ARAR attainment on the removal
statutory limits for duration and cost (53
FR 51410-11).
Response to comments: Several
commenters supported the proposed
revision to the NCP requiring that both
federal and state ARARs be complied
with when conducting removal actions.
One commenter asked what
documentation is required to show that
ARARs have been identified and
requested that EPA develop guidance
providing hypothetical conditions
describing the extent to which ARAR
analysis should be performed. Another
commenter stated that non-Fund-
financed removal actions conducted at
federal facilities also should be required
to comply with ARARs.
In opposition to the proposal, a
number of commenters pointed out that
Congress did not intend that removal
actions be required to comply with
ARARs. The commenters suggested that,
baaed on the legislative history,
Congress intended that only remedial
actions be subjecfto compliance with
ARARs. According to one commenter,
the legislative history states that ARARs
do not apply during removal actions
because removal actions are short-term,
relatively low-cost activities of great
urgency that should be free of the delays
that may arise if it is necessary to
identify and attain ARARs.
Other commenters suggested that
attainment of ARARs should not be
required during removal actions because
removal actions are not intended to
completely clean up a site, but rather to
quickly eliminate or control an
* Note that proposed 1300.ซ5{e) has been
deleted (ico preamble lection above on "Listing
iltci In CERCUS," and the remaining sections in
1300.415 hmva been renumbered.
immediate threat. The commenters
argued that compliance with ARARs is
based on what remains on site after an
entire remedy is completed, not after a
particular problem is controlled. In
addition, several commenters argued
that the main purpose of the removal
program is quick mitigation of threats,
and that requiring ARARs to be
complied with during removal actions
undermines this purpose by slowing
down the cleanup process. The
commenters suggested that such
procedural delays as identification of
ARARs will hinder the removal
program's ability to respond to
emergencies swiftly.
Several additional commenters
suggested that requiring attainment of
ARARs discourages PRPs from
undertaking removal actions. Fund-
financed removals can use the statutory
limits to limit attainment of ARARs;
those limits do not apply to PRP actions.
One commenter opposed the provision
that requires OSCs to justify why they
are not attaining ARARs during a
specific removal action. The commenter
argued that the prospect of an OSC
being required to justify why he or she is
not attaining all ARARs is inconsistent
with removal program objectives.
Other commenters believed that the
current policy concerning compliance
with ARARs during removal actions
should be replaced with a more
discretionary policy. They suggested
that OSCs should only be required to
comply with ARARs that are most
crucial to the proper stabilization of the
site and protection of public health and
the environment.
In response, EPA has carefully
reviewed this issue in light of the public
comments, and believes a number of
clarifying points need to be made. First,
as a threshold matter, EPA agrees that
Congress-did not, in the 1986
amendments to CERCLA, "require" EPA
to meet ARARs during removal actions.
However, it has been EPA's policy since
1985, established in the NCP, to attain
ARARs during removals to the extent
practicable, considering the exigencies
of the situation. EPA believes that this is
still a sound policy. Reference to
requirements under other laws (i.e.,
ARARs) help to guide EPA in
determining the appropriate manner in
which to take a removal action at many
sites.
If, for example, a component of the
removal action is to discharge treated
waste to a nearby river or stream,
effluent limitations based on federal or
state water quality criteria will be useful
in determining the extent of such
treatment. Today's policy is consistent
with section 105 of CERCLA which
directs that the NCP include methods
and criteria for determining the
appropriate extent of removals. Thus,
EPA is maintaining the policy described
hi the preamble to the proposed NCP,
although EPA has modified the factors
to be considered in determining
practicability.
A number of other comments
questioned the extent to which removals
should attempt to attain ARARs. In
responding to such comments, it is
important to note that the policy that
removals comply with ARARs to the
extent practicable is defined in large
part by the purpose of removal actions.
The purpose of removal actions
generally is to respond to a release or
threat of release of hazardous
substances, pollutants, or contaminants
so as to prevent, minimize, or mitigate
harm to human health and the
environment. Although all removals
must be protective of human health and
the environment within their defined
objectives, removals are distinct from
remedial actions in that they may
mitigate or stabilize the threat rather
than comprehensively address all
threats at a site. Consequently, removal
actions cannot be expected to attain all
ARARs. Remedial actions, in contrast,
must comply with all ARARs (or invoke
a waiver). Indeed, the imposition by
Congress of limits on the amount of time
and Fund money that may be spent
conducting a removal action often
precludes comprehensive remedies by
removal actions alone. Removal
authority is mainly used to respond to
emergency and time-critical situations
where long deliberation prior to
response is not feasible. All of these
factorslimits on funding, planning
time, and duration, as well as the more
narrow purpose of removal actions
combine to circumscribe the
practicability of compliance with
ARARs during individual removal
actions. Indeed, the vast majority of
removals involve activities where
consideration of ARARs is not even
necessary, e.g., off-site disposal,
provision of alternate water supply, and
construction of fences, dikes and
trenches.
Further, it should be noted that
requirements are ARARs only when
they pertain to the specific action being
conducted. If, for example, a site has
leaking drums, widespread soil
contamination, and significant ground-
water contamination, the removal action
at the site might only involve actions
necessary to reduce the near-term
threats, such as direct contact and
further deterioration of the ground
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Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 /Rules and Regulations
water; thus, the removal action might be
limited to removal of the drums and
surface debris and excavation of highly
contaminated soil. Requirements
pertaining to the cleanup of ground-
water contamination would not be
ARARs for that action because the
removal action is not intended to
address ground water; rather,
requirements pertaining to the drums,
surface debris, or contaminated soil may
be ARARs for the specific removal
action. Once the lead agency makes the
determination that the requirements are
ARARs for a removal, then it must
determine whether compliance is
practicable.
It will generally be practicable for
removal actions to comply with ARARs
that are consistent with the goals and
focus of the removal. However, as
stated above, removals are intended to
be responses to near-term threats, with
the ability to respond quickly when
necessary; thus, ARARs that would
delay rapid response when it is
necessary, or cause the response to
exceed removal goals, may be
determined to be impracticable. Of
course, even where compliance with
specific ARARs is not deemed
practicable, the lead agency for a
removal must use its best judgment to
ensure that the action taken is
protective of human health and the
environment within the defined
objectives of the removal action.
In order to better explain how a lead
agency can determine when compliance
with an ARAR is practicable, the
preamble to the proposed NCP included
three factors for consideration:
Exigencies of the situation, scope of the
removal action and the statutory limits
(53 FR 51410-11). Upon consideration of
comments, EPA has decided to
enumerate in the rule only two of those
three factors as important for
determining practicability: Urgency
(simply renaming exigencies) of the
situation, and scope of the removal
action. EPA believes that statutory
limits, because they relate to the
authority to conduct removal actions,
are easier to consider within, rather
than apart from, the factor of scope of
the removal action when determining
whether compliance with an ARAR is
practicable.
The factor of urgency of the situation
relates to the need for a prompt
response. In many cases, appropriate
response activities must be identified
and implemented quickly in order to
ensure the protection of human health
and the environment. For example, if
leaking drums pose a danger of fire or
explosion in a residential area, the
drums must be addressed immediately,
and it will generally be impracticable to
identify and comply with all potential
ARARs.
The second factor, the scope of the
removal action relates to the special
nature of removals in that they may be
used to minimize and mitigate potential
harm rather than totally eliminate it.
Removals are further limited in the
amount of time and Fund money that
may be expended at any particular site
in the absence of a statutory exemption.
Again, using the example above, even
though standards requiring cleanup of
the lower level soil contamination
would be an ARAR to that medium, they
would be outside the scope of the
removal action when such cleanup is not
necessary for the stabilization of the
site, or when it would cause an
exceedance of the statutory limits and
no exemption applied. Hence, such soil
standards, while ARARs, would not be
practicable to attain considering the
exigencies of the situation. Of course,
such standards may be ARARs for any
remedial action that is subsequently
taken at the site.
EPA disagrees with the comment that
requiring PRPs to comply with ARARs
to the extent practicable discourages
PRPs from conducting removals because
the statutory limits do not apply to non-
Fund-financed actions. Although the
limits apply by law to Fund-financed
actions only, EPA has the discretion
under CERCLA section 104(c)(l) to take
removal actions that exceed those
limits, in emergency situations or where
the action is otherwise appropriate and
consistent with the remedial action that
may be taken at the site. EPA will select
the appropriate remedy, even where an
extensive removal action is warranted,
regardless of whether the site is Fund-
lead or PRP-based. The only difference
is that if the site is Fund-lead, an
exemption must first be invoked in order
to proceed with the action. Thus, the
time and dollar limitations generally will
not result in PRPs performing a more
extensive removal than EPA itself would
conduct. That is, EPA's selection of a
removal action, including what ARARs
will be attained, will not be based on
who will be conducting the removal.
Finally, as stated in the preamble to
the proposed NCP (53 FR 51411), even if
attainment of an ARAR is practicable
under the factors described above, the
lead agency may also consider whether
one of the statutory waivers from
compliance with ARARs is available for
a removal action. EPA is developing
guidance on the process of complying
with ARARs during removal actions.
EPA generally will only require
documentation of ARARs for which
compliance is determined to be
practicable, in order not to burden OSCs
with substantial paperwork
requirements.
Final rule: Proposed ง 300.415(j)
(renumbered as final ง 300.415(i)j is
revised as follows:
1. The following has been added to
identify factors that are appropriate for
consideration in determining the
practicability of complying with ARARs:
In determining whether compliance with
ARARs is practicable, the lead agency may
consider appropriate factors, including the
following:
(1) The urgency of the situation; and
(2) The scope of the removal action to be
conducted.
2. The reference to advisories, criteria
or guidance has been modified (see
preamble section below on TBCs).
3. The description of ARARs has been
reworded (see preamble section below
on the definition of "applicable.")
Name: Sections 300.5, 300.415(g) and
(h), 300.500(a), 300.505 and 300.525(a).
State involvement in removal actions.
Existing rule: Sections 300.61 and
300.62 of the current NCP encourage
states to undertake actions authorized
under subpart F. Such actions include
removal and remedial actions pursuant
to CERCLA section 104(a)(l). The
regulation notes further that CERCLA
section 104(d)(l) authorizes the federal
government to enter into contracts or
cooperative agreements with the state to
take Fund-financed response actions
authorized under CERCLA, when the
federal government determines that the
state has the capability to undertake
such actions.
Proposed rule: Proposed ง 300.415(h)
and (i) (renumbered as final ง 300.415(g)
and (h)) and ง 300.525(a) would codify
EPA's existing policy of entering into
cooperative agreements with states to
undertake Fund-financed removal
actions, provided that states follow all
the provisions of the NCP removal
authorities. The preamble to the
proposed rule suggested that non-time-
critical actions are the most likely
candidates for state-lead removals (53
FR 51410). Proposed ง 300.510(b)
provided further that facilities operated
by a state or political subdivision
require a minimum cost share of 50
percent of the total response costs if a
remedial action is taken. Section 300.505
describes what EPA and a state may
agree to in a Superfund Memorandum of
Agreement (SMOA) regarding the nature
and extent of interaction on EPA-lead
and state-lead response. The preamble
clarified that, where practicable, a
SMOA may include general provisions
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ftvw)
77
responses and responses conducted by
PRPs (emergency and time-critical
removals are not covered by this policy).
This notification should specify the type
and quantity of waste involved, the
name and location of the receiving
facility and the expected schedule for
the transfer of the CERCLA waste. Such
notification will enable the recipient
state to obtain from its permitted
facilities any other information it may
need in order to support the out-of-state
action. Although this notification is
neither mandated by CERCLA nor
required by this regulation, EPA
believes that adherence to this
procedure will help to ensure that these
waste transfers occur in a safe and
expedient manner. The policy is
explained in more detail in OSWER
Directive No. 9330.2-07 (September 14,
1989).
Because CERCLA actions may be
carried out under a number of
mechanisms and by a number of parties
(e.g., lead state agencies, other federal
agencies, PRPs), EPA plans to issue
additional guidance or regulations, if
appropriate, to implement this
notification policy.
Final rule: There is no rule language
on this issue.
Applicable or Relevant and Appropriate
Requirements
Introduction. The November 20,1985
revisions to the NCP required that, for
all remedial actions, the selected
remedy must attain or exceed the
federal applicable or relevant and
appropriate requirements (ARARs) in
environmental and public health laws. It
also required removal actions to attain
ARARs to the greatest extent
practicable, considering the exigencies
of the circumstances. The preamble to
the 1985 revisions to the NCP stated that
ARARs could be determined only on a
site-by-site basis, and it included from
EPA's October'2,1985 Compliance
Policy a list of potentially applicable or
relevant and appropriate requirements.
The preamble also provided a list of
federal non-promulgated criteria,
advisories and guidance, and state
standards "to be considered," called
TBCs. EPA also provided five limited
circumstances in which ARARs could be
waived.
On October 17,1986, CERCLA was
reauthorized with additional new
requirements. Section 121 of CERCLA
requires that, for any hazardous
substance that will remain on-site,
remedial actions must attain
requirements under federal
environmental or state environmental or
facility siting laws that are applicable or
relevant and appropriate under the
circumstances of the release or
threatened release at the completion of
the remedial action. The statute also
retained most of the waivers, with a few
additions.
Although section 121(d)(2) basically
codified EPA's 1985 policy regarding
compliance with other laws, the section
also requires that state standards are
also potential ARARs for CERCLA
remedial actions when they are
promulgated, more stringent than
federal standards, and identified by the
state in a timely manner.
Furthermore, the CERCLA
amendments provide that federal water
quality criteria established under the
Clean Water Act (CWA) and maximum
contaminant level goals (MCLGs)
established under the Safe Drinking
Water Act, must be attained when they
are relevant and appropriate under the
circumstances of the release.
Today's revision to the NCP continues
the basic concept of compliance with
ARARs for any remedy selected (unless
a waiver is justified). ARARs will be
determined based upon an analysis of
which requirements are applicable or
relevant and appropriate to the
distinctive set of circumstances and
actions contemplated at a specific site.
Unlike the 1985 revisions to the NCP,
where alternatives were developed
based on their relative attainment of
ARARs, in today's rule recognition is
given to the fact that ARARs may differ
depending on the specific actions and
objectives of each alternative being
considered (for more discussion of this
point, see preamble of proposal at 53 FR
51438, section 9).
In today's rule, EPA retains its policy
established in the 1985 NCP of requiring
attainment of ARARs during the
implementation of the remedial action
(where an ARAR is pertinent to the
action itself), as well as at the
completion of the action, and when
carrying out removal actions "to the
extent practicable considering the
exigencies of the situation."
For ease of identification, EPA divides
ARARs into three categories: chemical-
specific, location-specific, and action-
specific, depending on whether the
requirement is triggered by the presence
or emission of a chemical, by a
vulnerable or protected location, or by a
particular action. (More discussion of
these types can be found in the
preamble of the proposal at 53 FR 51437,
section 6).
Response to comments: EPA received
a few comments on general ARARs
policies. One commenter argued that the
remedial action should not necessarily
have to attain the most stringent
applicable or relevant and appropriate
requirement if a less stringent
requirement provides adequate
protection of human health and the
environment.
EPA disagrees. CERCLA requires that
remedial actions comply with all
requirements that are applicable or
relevant and appropriate. Therefore, a
remedial action has to comply with the
most stringent requirement that is ARAR
to ensure that all ARARs are attained.
In addition, CERCLA requires that the
remedies selected be protective of
human health and the environment and
attain ARARs. A requirement does not
have to be determined to be necessary
to be protective in order to be an ARAR.
Conversely, the degree of stringency of a
requirement is not relevant to the
determination of whether it is an ARAR
at a site and must be attained (except
for state ARARs).
Another commenter asked for
confirmation that variance or exemption
provisions in a regulation can be
potential ARARs as well as the basic
standards. EPA agrees that meeting the
conditions and requirements associated
with a variance or exemption provision
can be a means of compliance with an
ARAR. For example, EPA expects that
CERCLA sites will frequently be
complying with the terms of the
treatability variance under the RCRA
land disposal restrictions (LDR) for soil
and debris when LDR is an ARAR.
Limitations in a regulation, such as the
quantity limitations that define small
quantity generators under RCRA and
affect what requirements a generator
must comply with, will also affect what
requirements are applicable at a
CERCLA site. However, it is possible
that a requirement could be relevant and
appropriate even though the requirement
is not applicable because of a limitation
in the regulation.
Indian tribe commenters contended
that ARARs should not be defined as
promulgated laws, regulations, or
requirements because some Indian tribe
laws, which could apply to a Superfund
cleanup, may not be promulgated in the
same fashion as state or federal laws.
CERCLA section 126 directs EPA to
afford Indian tribes substantially the
same treatment as states for certain
specified subsections of CERCLA
sections 103,104 and 105; EPA believes,
as a matter of policy, that it is similarly
appropriate to treat Indian tribes as
states for the purpose of identifying
ARARs under section 121(d)(2). EPA
realizes that tribal methods for
promulgating laws may vary, so any
evaluation of tribal ARARs will have to
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78 Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 / Rules and Regulations
be made on a case-by-case basis. Tribal
requirements, however, are still subject
to the same eligibility criteria as states,
as described in ง 300.400(g)(4).
Another commenter disagreed with
EPA's position that environmental laws
do not apply to a CERCLA response
action unless incorporated by CERCLA
section 121 (d). This commenter argued
that EPA has confused the ARARs
concept with one of preemption of state
law.
In response, SARA established a
process, in CERCLA sections 121(d)(2)
and (d)(4), for how federal and state
environmental laws should apply to on-
site CERCLA remedial actions, i.e., the
ARARs process. Based on these
provisions, CERCLA remedies will
incorporate (or waive) state standards,
as appropriate under CERCLA. Thus,
although other environmental laws do
not independently apply to CERCLA
response actions, the substantive
requirements of such laws will be
applied to such actions, consistent with
section 121(d) and NCP ง 300.400(g).
EPA's interpretation that CERCLA
response actions are required to meet
state (and other federal) environmental
law standards only to the limited degree
set out in CERCLA is also necessary to
comply with the special mandates in
CERCLA to respond quickly to
emergencies, and to perform Fund-
balancing. The position that on-site
CERCLA response actions are not
independently subject to other federal or
state environmental laws is a long-
standing one, based on a theory of
implied repeal or pre-emption. See, e.g.,
SO FR 47912,47917-18 (Nov. 20,1985); 50
FR 5862,5865 (Feb. 12,1985); "CERCLA
Compliance With Other Environmental
Laws" Opinion Memorandum, Francis S.
Blake, General Counsel, to Lee M.
Thomas, Administrator, Nov. 22,1985.
Following are summaries of major
comments and EPA's responses on
specific sections of the ARARs policy.
Name: Sections 300.5 and
300.400(g)(l). Definition of "applicable."
Proposed rule: "Applicable
requirements" means those cleanup
standards, standards of control, or other
substantive environmental protection
requirements, criteria, or limitations
promulgated under federal or state law
that specifically address a hazardous
substance, pollutant, contaminant,
remedial action, location, or other
circumstance at a CERCLA site. The
preamble to the proposed rule pointed
out that there is generally little
discretion in determining whether the
circumstances at a site match those
specified in a requirement (53 FR 51435-
37).
Response to comments: One
commenter suggested that language
used in ง 300.400(g)(4) of the proposed
NCP which provides that "only those
state standards that are promulgated
and more stringent than federal
requirements may be applicable or
relevant and appropriate" be added to
the definition of ARARs found in
ง 300.5.
In response, EPA notes that the
definition it proposed already includes
the condition that standards, whether
federal or state, must be promulgated in
order to be potential ARARs. EPA
accepts this comment on stringency and
has revised both งง 300.5 arid 300.400(g)
to specify that in order to be considered
ARARs, state requirements must be
more stringent than federal
requirements. EPA notes that, in general,
state regulations under federally
authorized programs are considered
federal requirements.
A commenter supported the
discussion of ARARs in the preamble to
the proposed NCP, but remarked that
the definitions of ARARs do not
adequately reflect many of the
important aspects mentioned in the
preamble. EPA believes that the
definitions stated in the rule are
sufficiently comprehensive and that the
information contained in the preamble
to the proposed and final rules will help
the public in applying the definitions.
One commenter asked why EPA had
deleted rule language that applicable
requirements are those requirements
that would be legally applicable if the
response action were not undertaken
pursuant to CERCLA. In working with
this definition, EPA found the previous
definition confusing because it was
stated in the conditional, i.e.,
requirements that would apply if the
action were not under CERCLA. EPA
revised the definition to explain more
specifically what it means by applicable
requirements to avoid any confusion.
However, the 1985 wording is still a
correct statement of the applicability
concept. EPA is modifying the definition,
however, to make it clear that the
standards, etc. do not have to be
promulgated specifically to address
CERCLA sites.
Final rule: The proposed definition of
"applicable" in งง 300.5 and
300.400(g)(l) are revised as follows:
1. Consistent with the language in
CERCLA section 121(d)(2), the
description of federal and state laws in
ง 300.5 is revised to read:
"* * * requirements, criteria or
limitations promulgated under federal
environmental or state environmental or
facility siting law * * * *"
[Comparable changes are made in
งง 300.4150), 300.430(e)(2)(i)(A),
300.430(e)(9)(iii)(B) and
300.430(f)(l)(ii)(C).]
2. The following sentence is added to
ง 300.5: "Only those state standards that
are identified by a state in a timely
manner and that are more stringent than
federal requirements may be
applicable."
3. In งง 300.5 and 300.400(g)(l), the
word "found" is added before "at a
CERCLA site."
Name: Sections 300.5 and
300.400(g)(2). Definition of "relevant and
appropriate."
Proposed rule: "Relevant and
appropriate requirements" means those
cleanup standards, standards of control,
and other substantive environmental
protection requirements, criteria, or
limitations promulgated under federal or
state law that, while not "applicable" to
a hazardous substance, pollutant,
contaminant, remedial action, location,
or circumstance at a CERCLA site,
address problems or situations
sufficiently similar to those encountered
at the CERCLA site that their use is well
suited to the particular site.
Section 300.400(g)(2) identified criteria
that must be considered, where
pertinent, to determine whether a
requirement addresses problems or
situations that are sufficiently similar to
the circumstances of the release or
remedial action that it is relevant and
appropriate. The preamble to the
proposed rule emphasized that a
requirement must be both relevant and
appropriate; this determination is based
on best professional judgment. Also, the
preamble stated that with respect to
some statutes or regulations, only some
of the requirements may be relevant and
appropriate to a particular site, while
others may not be (53 FR 51436-37).
Response to comments: 1. General.
Several commenters expressed support
in general for the revised definition of
relevant and appropriate requirements
and for the approach described in the
proposal to identifying such
requirements. Commenters in particular
supported statements that a requirement
must be both relevant, in that the
problem addressed by a requirement is
similar to that at the site, and
appropriate, or well-suited to the
circumstances of the release and the
site, to be considered a relevant and
appropriate requirement.
A few commenters recommended
changes to the definition of relevant and
appropriate requirements. One
commenter suggested adding to the
proposed definition that a relevant and
appropriate requirement must be
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Federal Register / Vol. 55, No. 46 / Thursday, March 8. 1990 /Rules and Regulations 79
"generally pertinent," a phrase used in
the preamble of the proposed NCP in
discussing the analysis of the relevance
of a requirement, while another
suggested adding "pertinent" to the
circumstances of the site, expressing
concern that "generally pertinent" was
overly broad. EPA believes that the
concept of "pertinence" is adequately
considered as part of the evaluation of
what is relevant and appropriate (see
discussion of factors for determining
relevant and appropriate requirements,
below). EPA does not believe that the
suggested changes should be made in
the definition itself.
Another commenter suggested
revising the definition to emphasize the
jurisdictional prerequisites of a
potentially relevant and appropriate
requirement, recommending that a
relevant and appropriate requirement be
defined as one mat, "while not
applicable, sufficiently satisfies the
jurisdictional prerequisites for legal
enforceability." EPA disagrees, because
die jurisdictional prerequisites, while
key in the applicability determination,
are not the basis for relevance and
appropriateness. Rather, the evaluation
focuses on the purpose of the
requirement, the physical characteristics
of the site and the waste, and other
environmentally- or technically-related
factors.
Another commenter objected to the
policy that some portions of a regulation
could be found relevant and
appropriate, while other portions would
not be. The commenter believed that
this policy would lead to confusion and
inconsistency, although the commenter
agreed that the application of this policy
to RCRA closure requirements,
described in the proposal, was useful.
EPA believes that this policy is
appropriate and reflects its experience
in evaluating RCRA closure
requirements and other requirements as
relevant and appropriate. Finding some
-parts of a regulation relevant and
appropriate, and others not, allows EPA
to draw on those standards that
contribute to and are suited for the
remedy and the site, even though all
components of a regulation are not
appropriate.
This approach has been particularly
valuable as applied to RCRA closure,
where the two applicable regulations,
clean closure and landfill closure,
address only the two poles of a potential
continuum of closure responses. When
RCRA closure is relevant and
appropriate, Superfund may use a
combination of these two regulations,
known as hybrid closure, to fashion an
appropriate remedy for a -site that is
protective of both ground water and
direct contact (for more discussion of
hybrid closure, see preamble to the
proposed NCP at 53 FR 51446).
2. Factors for determining relevant
and appropriate requirements. One
commenter suggested referencing the
criteria described in ง 300.400(g)(2) in
the definition. EPA believes this is not
appropriate because it could lead to
confusion about the role of the criteria
and result in greater emphasis on rigidly
applying the criteria than is warranted.
Based on this latter comment and
others about specific criteria in the
proposal, EPA wants to clarify the role
of the factors. (Note that the rule now
refers to "factors" rather than
"criteria.") EPA intends that the factors
in ง 300.400(g)(2) should be considered
in identifying relevant and appropriate
requirements, but does not want to
imply that the requirement and site
situation must be similar with respect to
each factor for a requirement to be
relevant and appropriate. At the same
time, similarity on one factor alone is
not necessarily sufficient to make a
requirement relevant and appropriate.
Rather, the importance of a particular
factor depends on the nature of the
requirement and the site or problem
being addressed and will vary from site
to site. While the factors are useful in
identifying relevant and appropriate
requirements, the final decision is based
on professional judgment about the
situation at the site and the requirement
as a whole.
In addition, as EPA discussed in the
proposal, a requirement must be both
"relevant," in that it addresses similar
situations or problems, and
"appropriate," which focuses on
whether the requirement is well-suited
to the particular site. Consideration of
only the similarity of certain aspects of
the requirement and the site situation
constitutes only half of the analysis of
whether a requirement is relevant and
appropriate.
After review of comments it received,
EPA has revised the language in
ง 300.400(g)(2) because it is concerned
that it was misleading. Some
commenters viewed the analysis
required by this section as requiring
consideration only of the similarity of
the requirement and the problems or
situation at the CERCLA site. While
non-substantive for the most part, the
changes to ง 300.400(g)(2) make clearer
that a requirement and a site situation
must be compared, based on pertinent
factors, to determine both the relevance
and appropriateness of the requirement.
The rule also now uses the term
"factors," rather than "criteria," a
change instituted to avoid confusion
with the nine criteria for remedy
selection in ง 300.430.
One commenter suggested that factors
be developed for use in evaluating
whether a requirement is "appropriate."
EPA does not believe this is necessary.
Decisions about the appropriateness of
a requirement are based on site-specific
judgments using the same set of factors
already identified. In the abstract it is
very difficult to separate out those
factors to be considered for relevance
and those to be considered for
appropriateness. In specific cases it
would be possible to say, for example,
that a requirement is relevant in terms
of the substances but not appropriate in
terms of the facility covered.
Several commenters questioned
whether certain factors could
legitimately be considered in identifying
relevant and appropriate requirements.
These and other comments on individual
factors are discussed below; a brief
description of each factor as described
in the proposed NCP is given after the
name of the factor.
(i): Purpose of the requirement. This
factor compared the purpose of a
requirement to the specific objectives of
the CERCLA action. One commenter
was concerned that the "objectives for
the CERCLA action" could include the
implementability of the remedy, its cost,
and even the acceptability of the action
to the community. This is not what EPA
meant by "objectives." Rather, EPA
intended that this factor consider the
technical, or health and environmental
purpose of the requirement compared to
what the CERCLA action is trying to
achieve. For example, MCLs are
promulgated to protect the quality of
drinking water; this is similar in purpose
to a CERCLA action to restore ground
water aquifers to drinkable quality. To
avoid confusion, EPA has simplified the
factor, which now states, "the purpose
of the requirement and the purpose of
the CERCLA action."
fii): The medium regulated by the
requirement. This factor compared the
medium addressed by a requirement to
the medium contaminated or affected at
a CERCLA site. No comments were
received on this factor, and the final rule
is essentially unchanged from the
proposal.
(in): The substances regulated by the
requirement. This factor compared the
substances addressed by a requirement
to the substances found at a CERCLA
site. Several commenters argued that
RCRA requirements for hazardous
waste should not be potentially relevant
and appropriate to wastes "similar" but
not identical to a hazardous waste, and
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Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 / Rules and Regulations
that this criterion should be dropped.
EPA disagrees and has discussed this
issue in the section of this preamble on
RCRA ARARs.
firji The entities or interests affected
or protected by the requirement. This
factor compared the entities or interests
addressed by a requirement and those
affected by a CERCLA site. Two
commenters expressed concern about
this factor. One commenter was
concerned that it could be used to
disqualify standards from being relevant
and appropriate simply because the
requirement regulated entities different
from those at a CERCLA site. In
contrast, another commenter was
concerned that EPA would broadly
apply requirements to entities that were
never intended to be subject to the
requirement. EPA agrees that this factor
Is confusing. EPA believes that the
characteristics intended to be addressed
by this factor are adequately covered
under other factors, such as purpose and
type of facility. Therefore, this factor
has been eliminated.
fvj: The actions or activities regulated
by the requirement. This factor
compared the actions or activities
addressed by a requirement to those
undertaken in the remedial action at a
CERCLA site. No comments were
received on this factor, and the final rule
is essentially unchanged from the
proposal.
(vi): Any variances, waivers, or
exemptions of the requirement. This
factor considered the availability of
variances, waivers, or exemptions from
a requirement that might be available
for the CERCLA site or action. One
commenter asked for clarification on
this factor and expressed his view that
the CERCLA waiver provisions for
ARARs were the only waivers
allowable. However, EPA believes that
it is reasonable to consider the
existence of waivers, exemptions, and
variances under other laws because
generally there are environmental or
technical reasons for such provisions.
These provisions are generally
incorporated into national regulations
because there are specific circumstances
where compliance with a requirement
may be inappropriate for technical
reasons or unnecessary to protect
human health and the environment.
Again, this factor is only one that should
be considered; even if a waiver
provision in a requirement matches the
circumstances at the CERCLA site, there
may be other reasons why the
requirement is still relevant and
appropriate.
(vii): The type and size of structure or
facility regulated by the requirement.
This factor compared the characteristics
of the structure or facility addressed by
a requirement to that affected by or
contemplated by the remedial action.
One commenter argued that regulations
routinely contain cut-offs based on type
or size of the structure or facility for
administrative or enforcement
convenience. EPA agrees that cut-offs
based solely on administrative reasons
may not be critical in determining
whether a requirement is relevant and
appropriate. However, EPA believes
that it is necessary and appropriate to
consider the physical type or size of
structure regulated because
requirements may be neither relevant
nor appropriate to structures or facilities
that are dissimilar to those that the
requirement was intended to regulate. In
many cases, this factor is a very basic
one: in identifying requirements relevant
to landfills, one would turn to standards
for landfills, not for tanks.
(viiij: Consideration of use or
potential use of affected resources in the
requirement. This factor compared the
resource use envisioned in a
requirement to the use or potential use
at a CERCLA site. One commenter
objected to this factor based primarily
on opposition to EPA's proposed ground
water policy, which, along with the
comments EPA has received on this
issue, is discussed in the section on
ground-water policy in the preamble
discussion of ง 300.430. EPA believes it
is appropriate to compare the resource
use considerations in a requirement with
similar considerations at a CERCLA
site.
Final rule: 1. The following sentence is
added to the proposed definition of
"relevant and appropriate" in ง 300.5
(see preamble discussion above on
"applicable"): "Only those state
standards that are identified by a state
in a timely manner and that are more
stringent than federal requirements may
be relevant and appropriate."
2. Proposed ง 300.400(g)(2) is revised
as follows:
(2) If, based upon paragraph (g)(l) of this
section, it is determined that a requirement is
not applicable to a specific release, the
requirement may still be relevant and
appropriate to the circumstances of the
release. In evaluating relevance and
appropriateness, the factors in paragraphs
(g)(2)(i) through (viii) shall be examined,
where pertinent, to determine whether a
requirement addresses problems or situations
sufficiently similar to the circumstances of
the release or remedial action contemplated,
and whether the requirement is well-suited to
the site, and therefore is both relevant and
appropriate. The pertinence of each of the
following factors will depend, in part, on
whether a requirement addresses a chemical,
location, or action. The following
comparisons shall be made, where pertinent,
to determine relevance and appropriateness:
(i) The purpose of requirement and the
purpose of the CERCLA action;
(ii) The medium regulated or affected by
the requirement and the medium
contaminated or affected at the CERCLA site;
(iii) The substances regulated by the
requirement and the substances found at the
CERCLA site;
(iv) The actions or activities regulated by
the requirement and the remedial action
contemplated at the CERCLA site;
(v) Any variances, waivers, or exemptions
of the requirement and their availability for
the circumstances at the CERCLA site;
(vi) The type of place regulated and the
type of place affected by the release or
CERCLA action;
(vii) The type and size of structure or
facility regulated and the type and size of
structure or facility affected by the release or
contemplated by the CERCLA action;
(viii) Any consideration of use or potential
use of affected resources in the requirement
and the use or potential use of the affected
resource at the CERCLA site.
Name: Section 300.400(g)(3). Use of
other advisories, criteria or guidance to-
be-considered (TBC).
Proposed rule: The preamble to the
proposed rule provided that advisories,
criteria or guidance to-be-considered
(TBC) that do not meet the definition of
ARAR may be necessary to determine
what is protective or may be useful in
developing Superfund remedies (53 FR
51436). The ARARs preamble described
three types of TBCs: health effects
information with a high degree of
credibility, technical information on how
to perform or evaluate site
investigations or remedial actions, and
policy.
For example, proposed ง 300.400(g)(3)
stated that other advisories, criteria, and
guidance to be considered (TBCs) shall
be identified, as appropriate, because
they may be useful in developing
CERCLA remedies. Proposed
ง 300.415(j)(ง 300.415(i) in the final rule)
stated that other federal and state
criteria, advisories, and guidance shall,
as appropriate, be considered in
formulating the removal action.
Proposed ง 300.430(b) stated that during
project scoping the lead agency shall
initiate a dialogue with the support
agency on potential ARARs and TBCs.
Proposed ง 300.430(e)(2) provided that
other pertinent information may be used
to develop remediation goals. Proposed
ง 300.430(e)(8) provided that the lead
agency shall notify the support agency
of the alternatives to be analyzed to
facilitate the identification of ARARs
and TBCs. Proposed ง 300.430(f) on
selecting a remedy, however, referred to
compliance with ARARs only, not TBCs.
Proposed subpart F required that the
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82 Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
Final rule: References to TBCs will be
changed in the following sections to
make it dear that their use is
discretionary rather than mandatory.
ง| 300.400{g){3), 3Q0.415(i), 300.430(b)(9).
300.430{d)(3), 300.430(e) (8) and (9),
800.505(d){2)(iii), 300.515(d) and (d) (1)
and (2), and 300.515(h)(2).
Name: Sections 300.400 (g)(4) and
(g)[5). ARARs under state laws.
Proposed rule: Section 300.400(g)
specified that only promulgated state
standards may be considered potential
ARARs. A promulgated state standard
must be legally enforceable and of
general applicability. The term "legally
enforceable," according to the preamble
to the proposed NCP, means that state
laws or standards which are considered
potential ARARs must be issued in
accordance with state procedural
requirements and contain specific
enforcement provisions or be otherwise
enforceable under state law. The
preamble also explained that "of general
applicability" means that potential state
ARARs must be applicable to all
remedial situations described in the
requirement, not just CERCLA sites (53
FR 51437-38).
The preamble, also discussed a
dispute resolution process to be
followed if there is disagreement about
the identification of ARARs, as well as
policies to be followed if a state insists
that a remedy attain a requirement not
determined to be ARAR (see 53 FR
51437 and 51457).
Response to comments: Commenters
on this subject called for EPA to
establish a formal procedure to be
followed by states to demonstrate that
proposed state ARARs are legally
enforceable and of generally
applicability. Commenters suggested
that states be required to provide legal
citations from appropriate sections of
state laws, as well as appropriate
citations to legal authority for issuing
compliance orders, obtaining
injunctions, or imposing civil or criminal
penalties in the event of noncompliance.
These citations, according to
Commenters, would demonstrate that
proposed ARARs are legally
enforceable.
Commenters suggested that general
applicability could be demonstrated by
requiring states to identify the
chemicals, locations, and cleanup
actions to which a proposed ARAR
would apply.
The proposed NCP did not prescribe a
specific procedure to be used in
evaluating state standards as potential
ARARs. A formal process for
demonstrating that state requirements
are promulgated is not required by
CERCLA. EPA believes that the
imposition of a formal procedure on
states would be a large administrative
burden and could impede the cleanup
process.
EPA expects, however, that states will
substantiate submissions of potential
ARARs by providing basic evidence of
promulgation, such as a citation to a
statute or regulation and, where
pertinent, a date of enactment, effective
date, or description of scope. Because a
citation is the minimum needed to
positively identify a requirement, EPA
has added regulatory language requiring
both lead and support agencies to
provide citations when identifying their
ARARs.
Section 300.400(g)(4) specifies that
only promulgated state standards that
are more stringent than federal
requirements and are identified by the
state in a timely manner may be
considered potential ARARs. If a
question is raised as to whether a
requirement identified by a state
conforms to the requirements for being a
potential state ARAR, or is challenged
on the basis that it does not conform to
the definition, the state would have the
burden of providing additional evidence
to EPA to demonstrate that the
requirement is of general applicability,
is legally enforceable, and meets the
other prerequisites for being a potential
ARAR. If EPA does not agree that a
state standard identified by a state is an
ARAR, EPA will explain the basis for
this decision.
Furthermore, the language of CERCLA
section 121(d)(2)(A) makes clear, and
program expediency necessitates, that
the specific requirements that are
applicable or relevant and appropriate
to a particular site be identified. It is not
sufficient to provide a general "laundry"
list of statutes and regulations that
might be ARARs for a particular site.
The state, and EPA if it is the support
agency, must instead provide a list of
requirements with specific citations to
the section of law identified as a
potential ARAR, and a brief explanation
of why that requirement is considered to
be applicable or relevant and
appropriate to the site.
Other comments on this section raised
objections to EPA's acceptance of
general goals as potential ARARs. One
commenter questioned whether such
general goals were implementable and
satisfied the requirements of a
promulgated standard, requirement,
criteria, or limitation contained in
CERCLA section 121(d). Another
commenter argued that attempts to
interpret compliance with a general goal
will lead to confusion and delay. Several
commenters requested clarification of
the status of state nondegradation goals
and whether such goals qualified as
potential ARARs.
In response, it is necessary to
examine the nature of a general goal in
order to determine whether it may be an
ARAR. General goals that merely
express legislative intent about desired
outcomes or conditions but are non-
binding are not ARARs. EPA believes,
however, that general goals, such as
nondegradation laws, can be potential
ARARs if they are promulgated, and
therefore legally enforceable, and if they
are directive in intent. The more specific
regulations that implement a general
goal are usually key in identifying what
compliance with the goal means.
For example, in the preamble to the
proposed NCP, EPA cited the example of
a state antidegradation statute that
prohibits the degradation of surface
water below a level of quality necessary
to protect certain uses of the water body
(53 FR 51438). If promulgated, such a
requirement is clearly directive in nature
and intent. State regulations that
designate uses of a given water body
and state water quality standards that
establish maximum in-stream
concentrations to protect those uses
define how the antidegradation law will
be implemented are, if promulgated, also
potential ARARs.
Even if a state has not promulgated
implementing regulations, a general goal
can be an ARAR if it meets the
eligibility criteria for state ARARs.
However, EPA would have considerable
latitude in determining how to comply
with the goal in the absence of
implementing regulations. EPA may
consider guidelines the state has
developed related to the provision, as
well as state practices in applying the
goal, but such guidance or documents
would be TBCs, not ARARs.
Final rule: 1. EPA has revised
ง 300.400(g)(4) as follows:
(4) Only those state standards that are
promulgated, are identified by the state in a
timely manner, and are more stringent than
federal requirements may be applicable or
relevant and appropriate. For purposes of
identification and notification of promulgated
state standards, the term "promulgated"
means that the standards are of general
applicability and are legally enforceable.
~2. Also, language has been added to
ง 300.400(g}(5) requiring that specific
requirements for a particular site be
identified as ARARs, and that citations
be provided.
Name: Section 300.515(d)(l). Timely
identification of state ARARs.
Proposed rule: Section 300.515(d)(l)
stated that the lead and support
agencies shall identify their respective
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#755)
91
case of "applicable" requirements.
However, the determination of whether
a requirement is relevant and
appropriate is not based on its
stringency; rather, other criteria are
used, as discussed in the section on
relevance and appropriateness, and the
remedy must comply with the most
stringent requirement determined to be
ARAR. EPA also believes that, in some
situations, the availability of certain
requirements that more fully match the
circumstances of the site may result in a
decision that another requirement is not
relevant and appropriate. EPA believes
that one such situation is when an MCL
or non-zero MCLG and an FWQC for
human health are available for the same
contaminant when a current or potential
source of drinking water is of concern,
and there are no impacts to aquatic
organisms.
As discussed in this preamble, EPA
believes that an MCL or non-zero MCLG
is generally the relevant and appropriate
requirement for ground water that is a
current or potential source of drinking
water. EPA also believes that an MCL or
non-zero MCLG, promulgated
specifically to protect drinking water,
generally is the appropriate standard for
ground water even if an FWQC for
human health is also available for the
contaminant, for the following reasons.
CERCLA section 121(d)(2)(B)(i) lists,
among other factors, the purpose for
which the criteria were developed and
the designated or potential use of the
water as factors in determining whether
FWQC are relevant and appropriate.
Since FWQC for human health are
promulgated for exposures that include
drinking water and consuming fish, on
the one hand, and consuming fish only,
on the other, it is not directly the
purpose of such criteria to provide
drinking water standards per se,
although levels that protect such a use
can be mathematically derived from
these two values. Furthermore, such
derived values for drinking water will
not reflect the contribution of other
sources (through an apportionment
factor], as MCLs and MCLGs do. Finally,
for carcinogens FWQC are
recommended at zero, although values
corresponding to risks of 10~s, 10"*, and
10~T are also given. For the reasons
given in the discussion of MCLs and
MCLGs above, the zero value is not
considered relevant and appropriate
under CERCLA; MCLs, however,
represent a level determined to be both
protective of human health for drinking
water and attainable by treatment.
For the same reasons, EPA believes
that MCLs or non-zero MCLGs generally
will be the relevant and appropriate
standards for surface water designated
as a drinking water supply, unless the
state has promulgated water quality
standards (WQS) for the water body
that reflect the specific conditions of the
water body. However, surface water
bodies may be designated for uses other
than drinking water supply, and
therefore an FWQC intended to be
protective of such uses, such as the
FWQC for consumption of fish or for
protection of aquatic life, may very well
be relevant and appropriate in such
cases. Also, where a contaminant does
not have an MCL or MCLG, FWQC
adjusted to reflect drinking water use
may be used as relevant and
appropriate requirements.
Final rule: EPA is including in the
final rule at ง 300.430(e)(2)(i)(E)
language stating that FWQC are to be
attained where relevant and appropriate
under the circumstances of the release
or threatened release.
Name: Section 300.435(b)(2).
Compliance with applicable or relevant
and appropriate requirements (ARARs)
during the remedial action.
Proposed rule: CERCLA section 121
requires that, at the completion of a
remedial action, a level or standard of
control required by an ARAR will be
attained for wastes that remain on-site.
However, consistent with the 1985 NCP
(ง 300.68(1), ง 300.435(b)) of the proposed
NCP also required compliance with
ARARs during implementation of the
action, stating that during the course of
the remedial design/remedial action
(RD/RA), the lead agency shall be
responsible for ensuring that all federal
and state ARARs identified for the
action are being met, unless a waiver is
invoked. Examples of such requirements
given in the preamble to the proposed
rule included RCRA treatment, storage,
and disposal requirements, Clean Air
Act national ambient air quality
standards, and Clean Water Act effluent
discharge limitations (53 FR 51440).
Response to comments: EPA received
a number of comments that the NCP
should not require compliance with
ARARs during the remedial action.
Commenters argued that this policy is
inconsistent with the statute, which
requires compliance with ARARs only
at the completion of the remedial action,
and questioned EPA's authority to
require compliance with ARARs during
remedial design/remedial action.
Several commenters pointed out that
CERCLA section 121(d)(l) states that
remedial actions must be protective and
"must be relevant and appropriate under
the circumstances," and argued that this
standard should govern how the action
itself is carried out. Design and
operation of the remedial action should
be based on best professional judgment
and undertaken in a manner that is
protective. Other commenters suggested
requiring compliance only with those
ARARs that "can reasonably be
achieved," or listing specific types of
ARARs that must be met during RD/RA.
Commenters were particularly
concerned about problems created by
requiring compliance with RCRA
requirements and the land disposal
restrictions in particular for remedial
actions.
EPA disagrees with these
commenters. EPA believes that it is
appropriate to require that remedial
activities comply with the substantive
requirements of other laws that apply or
are relevant and appropriate to those
activities. The reasons for complying
with such laws during the conduct of the
remediation are basically the same as
the reasons for applying ARARs as
remediation objectives: the laws help
define how the activity can be carried
out safely and with proper safeguards to
protect human health and the
environment. EPA is concerned that, if
the narrowest possible interpretation
were applied to ARARs compliance,
compliance with laws critical to
protection of health and the
environment would become subject to
debate, laws such as those that govern
surface water discharges or air
emissions, or that set operational
standards for incineration of hazardous
waste.
Several commenters also stated that
chemical-specific ARARs used as
remediation goals, such as MCLs as
ARARs for ground water remediation,
cannot be attained during
implementation. EPA wants to clarify
that it recognizes that ARARs that are
used to determine final remediation
levels apply only at the completion of
the action.
It is worthwhile to point out, in the
context of this policy on complying with
ARARs pertaining to the remedial
activity itself, that CERCLA provides a
waiver from ARARs for interim actions,
provided the final action will attain the
waived standard. If there is doubt about
whether an ARAR represents a final
remediation goal or an interim standard,
and it cannot be met during the activity,
this waiver could be invoked.
Comments were also received on
EPA's discussion of compliance with
ARARs during remedial investigations
in the preamble to the proposed NCP (53
FR 51442-43). In that discussion, EPA
stated that on-site handling, treatment
or disposal of investigation-derived
waste must satisfy ARARs and that the
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Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
field investigation teams should use best
professional judgment in determining
when such wastes contain hazardous
substances. One commenter
recommended that investigation-derived
samples be required to be handled,
treated, and disposed in accordance
with applicable RCRA requirements.
In response, EPA wishes to clarify the
discussion hi the preamble to the
proposed NCP. CERCLA section 101(23)
defines "removal" to include "such
actions as may be necessary to monitor,
assess, and evaluate the release or
threat of release of hazardous
substances * * * [including] action
taken under section 104(b) of
[CERCLA]." EPA has stated, therefore,
that studies and investigations
undertaken pursuant to CERCLA section
104(b), such as activities conducted
during the RI/FS, are considered
removal actions (54 PR 13298, March 31,
1989]. EPA's policy, explained elsewhere
in today's preamble, is that removal
actions will comply with ARARs to the
extent practicable, considering the
exigencies of the circumstances. Thus,
the field investigation team should,
when handling, treating or disposing of
investigation-derived waste on-site,
conduct such activities in compliance
with ARARs to the extent practicable,
considering the exigencies of the
situation. Investigation-derived waste
that is transported off-site (e.g., for
treatability studies or disposal] must
comply with applicable requirements of
the CERCLA off-site policy (OSWER
Directive No. 9834.11 (November 13,
1987]] and ง 300.440 when finalized (see
53 FR 48218, November 29,1988).20 EPA
notes that CERCLA section 104(c)(l)
provides that the statutory limits on
removals do not apply to investigations,
monitoring, surveying, testing and other
information-gathering performed under
CERCLA section 104(b).
Final rule: EPA is promulgating the
rule as proposed except for minor
editing revisions.
Name: 300.5. Distinction between
substantive and administrative
requirements.
Proposed rule: the proposed
definitions of "applicable" and "relevant
and appropriate" stated that they are
cleanup standards, standards of control,
and other substantive environmental
protection requirements, criteria or
limitations. The preamble to the
proposed rule explained that
requirements that do not hi and of
20 The CERCLA off-site policy requires that
receiving facilities are in compliance with
"applicable laws." Note that many treatability study
wastes are exempt from the permitting requirement
under RCRA (see 40 CFR 261.4(e) and (fj).
themselves define a level or standard of
control are considered administrative
(53 FR 51443). Administrative
requirements include the approval of, or
consultation with, administrative
bodies, issuance of permits,
documentation, and reporting and
recordkeeping. Response actions under
CERCLA are required to comply with
ARARs, which are defined not to
include administrative requirements.
Response to comments: Many
comments were received on EPA's
differentiation between substantive and
administrative requirements. Some
commenters supported the distinction
between substantive and administrative
requirements. Other commenters
disagreed with EPA's interpretation for
various reasons.
Several commenters argued that
Superfund actions should not be exempt
from consultation requirements. One
commenter argued that consultation
with a state may be necessary to
determine how state ARARs apply to
the remedy. A commenter contended
that it is virtually impossible to meet
substantive requirements without
consultation. One commenter asserted
that state procedures or methodology
necessary to determine permit levels
should be considered state ARARs.
Another argued that not requiring
consultation runs opposite to the spirit
of cooperation with states. One
commenter suggested narrowing the
exemption to allow for consultation
through existing Superfund mechanisms
such as consent orders, SMOAs, and
.cooperative agreements.
Commenters also objected to the
exemption from reporting and
recordkeeping requirements. One
contended that EPA had no legal
authority for such exemption. Others
argued that reporting and recordkeeping
are necessary to ensure proper control
of hazardous substances that will
remain on-site and are also necessary
for activities with local impacts: Long-
term water diversions and air or surface
water releases. Commenters asserted
that the lead agency must meet reporting
requirements to avoid gaps in a state's
environmental data. One commenter
noted that there are a number of federal
and state programs that require the
maintenance of complete databases and
that the NCP's approach is inconsistent
with such programs. Under these
programs, a state needs all discharge
information hi order to evaluate surface
water toxicity impacts in a stream or to
establish total maximum daily loads.
The concern was also raised that
maintaining reporting and recordkeeping
procedures on a site-by-site basis would
undermine a state's standardized
reporting requirements, e.g., ground-
water monitoring report forms, NPDES
forms, etc. Also, unique site approaches
to reporting and recordkeeping may
result in problems not detected by a
state. Further, these commenters stated
that they were not aware of Superfund
recordkeeping and reporting
requirements. One commenter stated
that reporting requirements and
compliance mechanisms during remedy
implementation and O&M periods
should be specified through Superfund
mechanisms, as appropriate. One
commenter contended that if Superfund
insists on this distinction, a
determination whether a requirement is
substantive or administrative must be
documented.
EPA has reviewed these comments,
but concludes, as stated in the preamble
to the proposed NCP (53 FR 51443), that
CERCLA response actions should be
subject only to substantive, not
administrative, requirements. EPA
believes that this interpretation is most
consistent with the terms of CERCLA
and with the goals of the statute. Section
121(d)(2) provides that remedial actions
should require "a level or standard of
control" which attains ARARs; only
substantive standards set levels or
standards of control. Moreover,
Congress made clear hi sections 121
(d)(2) and (d)(4) that the "standards" or
"requirements" of other laws that are
ARARs should be applied to actions
conducted on-site, and specifically
provided in section 121(e)(l) that federal
and state permits would not be required
for such on-site response actions. These
subsections reflect Congress' judgment
that CERCLA actions should not be
delayed by time-consuming and
duplicative administrative requirements
such as permitting, although the
remedies should achieve the substantive
standards of applicable or relevant and
appropriate laws. Indeed, CERCLA has
its own comparable procedures for
remedy selection and state and
community involvement. EPA's
approach is wholly consistent with the
overall goal of the Superfund program,
to achieve expeditious cleanups, and
reflects an understanding of the
uniqueness of the CERCLA program,
which directly impacts more than one
medium (and thus overlaps with a
number of other regulatory and statutory
programs). Accordingly, it would be
inappropriate to formally subject
CERCLA response actions to the
multitude of administrative
requirements of other federal and state
offices and agencies.
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94 Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
requirements. Rather, given the need to
ensure finality of remedy selection in
order to achieve expeditious cleanup of
sites, and given the length of time often
required to design, negotiate, and
implement remedial actions, EPA
believes that this is the most reasonable
interpretation of the statute.
As EPA discusses elsewhere in this
preamble, one variation to this policy
occurs when a component of the remedy
was not identified when the ROD is
signed. In that situation, EPA will
comply with ARARs hi effect when that
component is identified (e.g., during
remedial design), which could include
requirements promulgated both before
and after the ROD was signed. EPA
notes that newly promulgated or
modified requirements may directly
apply or be more relevant and
appropriate to certain locations, actions
or contaminants than existing standards
and, thus, may be potential ARARs for
future responses.
It is important to note that a policy of
freezing ARARs at the time of the ROD
signing will not sacrifice protection of
human health and the environment,
because the remedy will be reviewed for
protectiveness every five years,
considering new or modified
requirements at that point, or more
frequently, if there is reason to believe
that the remedy is no longer protective
of health and environment.
In response to the specific comments
received, EPA notes that under this
policy, EPA does not intend that a
remedy must be modified solely to
attain a newly promulgated or modified
requirement. Rather, a remedy must be
modified if necessary to protect human
health and the environment; newly
promulgated or modified requirements
contribute to that evaluation of
protectiveness. For example, a new
requirement for a chemical at a site may
indicate that the cleanup level selected
for the chemical corresponds to a cancer
risk of 10"2 rather than 10~5, as
originally thought. The original remedy
would then have to be modified because
it would result in exposures outside the
acceptable risk range that generally
defines what is protective.
This policy that newly promulgated or
modified requirements should be
considered during protectiveness
reviews of the remedy, but should not
require a reopening of the ROD during
implementation every time a new state
or federal standard is promulgated or
modified, was discussed in the preamble
to the proposed rule (53 FR at 51440) but
not in the rule section itself. For the
reasons outlined above, EPA believes
that this concept is critical to the
expeditious and cost-effective
accomplishment of remedies duly
selected under CERGLA and the NCP,
and thus is appropriate for inclusion in
ง 300.430(f)(l)(ii)(B) of the final NCP.
This will afford both the public and
implementing agencies greater clarity as
to when and how requirements must be
considered during CERCLA responses,
and thus will allow the CERCLA
program to carry out selected remedies
with greater certainty and efficiency. Of
course, off-site CERCLA remedial
actions are subject to the substantive
and procedural requirements of
applicable federal, state, and local laws
at the tune of off-site treatment, storage
or disposal.
Final rule: EPA is adding the
following language to the rule at
ง 300.430(f)(l)(ii)(B):
(B) On-site remedial actions selected in a
ROD must attain those ARARs that are
identified at the time of ROD signature or
provide grounds for invoking a waiver under
ง 300.430(f)(l}(ii)(C)(3).
(1) Requirements that are promulgated or
modified after ROD signature must be
attained (or waived) only when determined
to be applicable or relevant and appropriate
and necessary to ensure that the remedy is
protective of human health and the
environment.
(2) Components of the remedy not
described in the ROD must attain (or waive)
requirements that are identified as applicable
or relevant and appropriate at the time the
amendment to the ROD or the explanation of
significant differences describing the
component is signed.
Name: Applicability of RCRA
requirements.
Proposed rule: The preamble to the
proposed rule discussed when RCRA
subtitle C requirements will be
applicable for site cleanups (53 FR
51443). It described the prerequisites for
"applicability" at length, which are that:
(1) The waste must be a listed or
characteristic RCRA hazardous waste
and (2) treatment, storage or disposal
occurred after the effective date of the
RCRA requirements under consideration
(for example, because the activity at the
CERCLA site constitutes treatment,
storage, or disposal, as defined by
RCRA).
The preamble explained how EPA will
determine when a waste at a CERCLA
site is a listed RCRA hazardous waste.
It noted that it is often necessary to
know the origin of the waste to
determine whether it is a listed waste
and that, if such documentation is
lacking, the lead agency may assume it
is not a listed waste.
The preamble discussed how EPA will
determine that a waste is a
characteristic hazardous waste under
RCRA. It stated that EPA can test to
determine whether a waste exhibits a
characteristic or can use best
professional judgment to determine
whether testing is necessary, "applying
knowledge of the hazard characteristic
in light of the materials or process
used."
The preamble also discussed when a
CERCLA action constitutes "land
disposal," defined as placement into a
land disposal unit under section 3004(k)
of RCRA, which triggers several
significant requirements, including
RCRA land disposal restrictions (LDRs)
and closure requirements (when a unit is
closed). It equated an area of
contamination (AOC), consisting of
continuous contamination of varying
amounts and types at a CERCLA site, to
a single RCRA land disposal unit, and
stated that movement within the unit
does not constitute placement. It also
stated that placement occurs when
waste is redeposited after treatment in a
separate unit (e.g., incinerator or tank),
or when waste is moved from one AOC
to another. Placement does not occur
when waste is consolidated within an
AOC, when it is treated in situ, or when
it is left in place.
Response to comments: EPA received
many comments on its discussion of
when RCRA requirements can be
applicable to CERCLA response actions.
On the issue of compliance with RCRA
in general, most of these commenters
argued that RCRA requirements are not
intended for site cleanup actions, that
such compliance will result in delays
and that RCRA requirements are often
unnecessary to protect human health
and the environment at CERCLA sites.
Other commenters argued, however,
that EPA is trying to avoid compliance
with RCRA requirements. Most of the
comments, however, focused on when
LDRs are applicable to CERCLA actions
and on EPA's discussion of what actions
associated with remediation trigger
LDRs.
Some commenters opposed EPA's
interpretation of "land disposal" or
"placement" as too lenient, believing
that EPA is trying to avoid compliance
with RCRA laws, particularly LDRs.
These commenters argued that LDRs
should be applicable when hazardous
wastes are managed, excavated, or
moved in any way. One argued that
ARARs waivers are available to address
situations when the LDR levels cannot
be achieved and should be used as
necessary, rather than trying to
narrowly define the universe of ARARs
to avoid waivers. This commenter was
also concerned with EPA's use of the
term "unit," calling it an inappropriate
concept for Superfund sites because it
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Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 95
will allow the excavation and
redeposition of waste within very large
areas without ever meeting RCRA
design and operating standards and
LDR. One commenter asserted that EPA
concerns on LDRs stem from an
unjustifiable belief that LDR cleanup
levels cannot be achieved.
Other commenters believed that the
definition of "placement" should
provide more flexibility. One asserted
that replacement of treated residuals in
the proximate area should not constitute
placement The commenter argued that
Congress intended to address,
preventively or prospectively, the
original act of disposal, and that an
innocent government or public entity
should not be required to assume the
entire environmental responsibility of
the original disposers. The commenter
also argued that establishing that
replacement of treated waste triggers
LDRs will be a serious disincentive to
treating wastes. Some commenters
argued that LDRs should not be relevant
and appropriate where the CERCLA
waste to be disposed on land is merely
similar in composition to RCRA banned
waste.
Other commenters argued that LDRs
are inappropriate for CERCLA remedial
actions. They noted an inherent conflict
between LDRs, which require treatment
to BDAT levels, and the CERCLA
process, and claimed that LDRs will
supplant CERCLA's "carefully
articulated and balanced approach to
remedy selection." Commenters
asserted that compliance with LDRs will
create technical problems because of
differences between CERCLA wastes
and those evaluated for LDRs. The
solutions recommended by these
commenters primarily focused on
narrowing or eliminating RCRA
applicability, but included suggestions
for creating treatability groups for
CERCLA-type waste and seeking
legislative waivers from LDRs, e.g., a
waiver from LDRs for Superfund actions
at NFL sites.
One commenter believed that the
concept of "unit" is not readily
transferable to CERCLA sites due to the
age and former uses of many of the sites
undergoing remediation. Given the
ramifications of LDRs, the commenter
argued, it may be more reasonable to
create a presumption of treating the
entire site as one "unit," even if
remediation includes a series of
operable units.
Some comments were received on
EPA's statements on consolidating
waste. One stated that consolidation of
small amounts of waste across units
should not be considered placement,
because that will lead to less
environmentally sound and less cost-
effective solutions, particularly if LDRs
are triggered. Another recommended
that EPA should allow consolidation of
small volumes of waste anywhere on-
site, for purposes of storage or
treatment, without triggering otherwise
applicable RCRA standards. Another
commenter requested clarification that
consolidation within a unit included
normal earthmoving and grading
operations.
1. Actions constituting land disposal.
EPA disagrees with commenters who
considered EPA's interpretation of the
definition of "land disposal" under
RCRA section 3004(k) to be too narrow.
These commenters argued that any
movement of waste should be
considered "placement" of waste, and
thus "land disposal" under RCRA
section 3004(k).
The definition of "land disposal" is
central to determining whether the
RCRA LDRs are applicable to a
hazardous waste which is being
managed as part of a CERCLA response
action, or RCRA closure or corrective
action. The term "land disposal" is
defined under RCRA section 3004(k) as
including, but not limited to, "any
placement of such hazardous waste in a
landfill, surface impoundment, waste
pile, injection well, land treatment
facility, salt dome formation, salt bed
formation, or underground mine or
cave." The terms "landfill", "surface
impoundment," and the others, refer to
specific types of units defined under
RCRA regulations. Thus, Congress
generally defined the scope of the LDR
program as the placement of hazardous
waste in a land disposal unit, as those
units are defined under RCRA
regulations.
EPA has consistently interpreted the
phrase "placement * * * in" one of
these land disposal units to mean the
placement of hazardous wastes into one
of these units, not the movement of
waste within a unit, oee e.g., 51FR 40577
(Nov. 7,1986) and 54 FR 41566-67
(October 10,1989] (supplemental
proposal of possible alternative
interpretations of "land disposal"). EPA
believes that its interpretation that the
"placement * * * in" language refers to
a transfer of waste into a unit (rather
than simply any movement of waste) is
not only consistent with a
straightforward reading of section
3004(k], but also with the Congressional
purpose behind the LDRs. The central
concern of Congress in establishing the
LDR program was to reduce or eliminate
the practice of disposing of untreated
hazardous waste at RCRA hazardous
waste facilities. The primary aim of
Congress was prospective rather than
directed at already-disposed waste
within a land disposal unit. See 51 FR
40577 (Nov. 7,1986). Moreover,
interpreting section 3004(k) to require
application of the LDRs to any
movement of waste could be difficult to
implement and could interfere with
necessary operations at an operating
RCRA facility. For instance, when
hazardous waste is disposed of in a land
disposal unit at an operating RCRA
facility, there may well be some
"movement" of the waste already in the
unit. Under the commenters' approach,
such movement without pretreatment of
the moved waste could be in violation of
the LDRs. Thus, under the commenters'
interpretation, virtually no operational
activities could occur at any RCRA land
disposal unit containing hazardous
waste without pretreatment of any
waste disturbed by the operation;
clearly an infeasible approach.
EPA also believes that this
interpretation of section 3004(k) is
supported by the legislative history for
this provision (see 129 Cong. Rec. H8139
(Oct. 6,1983)(statement of Rep. Breaux)),
and by the Congressional choice to
define "land disposal" more narrowly
for purposes of application of the LDRs
than the already-existing term
"disposal", which has a much broader
meaning under RCRA. Under RCRA
section 1004(3), the term "disposal" is
very broadly defined and includes any
"discharge, deposit, injection, dumping,
spilling, leaking, or placing" of waste
into or on any land or water. Thus,
"disposal" (in a statutory, rather than
the regulatory subtitle C meaning of the
term) would include virtually any
movement of waste, whether within a
unit or across a unit boundary. In fact,
the RCRA definition of "disposal" has
been interpreted by numerous courts to
include passive leaking, where no active
management is involved (see, e.g., U.S.
v. Waste Industries, Inc., 734 F.2d 159
(4th Cir. 1984)). However, Congress did
not use the term "disposal" as its trigger
for the RCRA land disposal restrictions,
but instead specifically defined the new,
and more narrow, term "land disposal"
in section 3004(k). The broader
"disposal" language continues to be
applicable to RCRA provisions other
than those in subtitle C, such as section
7003. Thus, for the reasons outlined
above, EPA believes that the existing
interpretation, that movement of waste
within a unit does not constitute "land
disposal" for purposes of application of
the RCRA LDRs, is reasonable.
With respect to the commenter who
asked whether normal earthmoving and
grading operations within a land
disposal unit constitute "placement into
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96 Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations
the unit", under EPA's interpretation of
RCRA section 3004(k), such activity
would not be "placement into the unit"
and thus the RCRA LDRs and other
subtitle C disposal requirements would
not be applicable (nor would the
requirement to obtain a permit under
RCRA or minimum technology
requirements in RCRA section 3004(o)
apply).
Given this interpretation of section
3004(k), EPA does not believe that it is
necessary to invoke ARAR waivers of
LDRs for any movement of waste within
a unit, which was the alternative
suggested by the commenters. Nor does
EPA believe that the widespread use of
such waivers would be practical or
desirable. 54 PR 4156&-69 (October 10,
1989).
EPA also does not fully agree with the
commenters who argued that the RCRA
concept of "unit" does not apply to
CERCLA sites. The commenters who
criticized the application of the RCRA
"unit" to the CERCLA area of
contamination for purposes of section
3004(k) believed it to be either too
broad, allowing large areas to escape
the LDRs, or too narrow, not allowing
entire CERCLA sites to be considered a
single "unit". In contrast to hazardous
waste management units at a RCRA
facility, CERCLA sites often do not
involve discrete waste management
units, but rather involve land areas on
or in which there can be widespread
areas of generally dispersed
contamination. Thus, determining the
boundaries of the RCRA land disposal
"unit," for which section 3004(k) would
require application of the LDRs at these
sites, is not always self-evident.
EPA generally equates the CERCLA
area of contamination with a single
RCRA land-based unit, usually a
landfill. 54 FR 41444 (December 21,
1988). The reason for this is that the
RCRA regulatory definition of "landfill"
is generally defined to mean a land
disposal unit which does not meet the
definition of any other land disposal
unit, and thus is a general "catchall"
regulatory definition for land disposal
units. As a result, a RCR\A "landfill"
could include a non-discrete land area
on or in which there is generally
dispersed contamination. Thus, EPA
believes that it is appropriate generally
to consider CERCLA areas of
contamination as a single RCRA land-
based unit, or "landfill". However, since
the definition of "landfill" would not
include discrete, widely separated areas
of contamination, the RCRA "unit"
would not always encompass an entire
CERCLA site.
Waste consolidation from different
units or AOCs at a CERCLA site are
subject to any applicable RCRA
requirements regardless of the volume of
the waste or the purpose of the
consolidation. Thus, EPA disagrees with
those commenters that asserted that
small volumes of hazardous waste at a
CERCLA site can be consolidated
anywhere on-site for storage or
treatment purposes without
consideration of any applicable RCRA
requirements. Such requirements may,
however, be subject to ARAR waivers in
appropriate circumstances.
The remaining comments received
with respect to EPA's interpretation of
section 3004(k) discussed the
achievability of LDR cleanup levels,
questioned the appropriateness of
applying the LDRs to remedial actions,
and requested more flexibility regarding
the LDRs. These comments were the
basis for EPA's supplemental notice and
proposed reinterpretation of section
3004(k), which is discussed below.
In light of the numerous comments
received on the interpretation of "land
disposal" in RCRA section 3004(k), as it
relates to removal, treatment, and
redeposition of hazardous wastes
generated by CERCLA and RCRA
remedial and other activities, and in
view of the important policy decisions
that RCRA LDRs pose for the CERCLA
and RCRA programs, EPA decided to
separately and more fully discuss the
issue, the interpretation outlined in the
proposed NCP, and possible alternative
interpretations of "land disposal". In a
supplemental notice to the proposed
NCP (54 FR 41566 (Oct. 10,1989)), EPA
outlined several technical, policy, and
legal issues concerning LDR
applicability to removal, treatment, and
redeposition of hazardous wastes, and
requested comment on two alternative
interpretations of "land disposal". The
first alternative would allow the
excavation and replacement of
previously disposed hazardous wastes
in the same unit or area of
contamination; since the same wastes
would remain in the same unit, this
activity would not constitute "land
disposal". Under the second alternative,
hazardous wastes could be excavated
and redeposited either within the
original unit or area of contamination, or
elsewhere at the site in a new or
existing unit. These interpretations
would allow greater flexibility in
remedial decision-making, in the context
of both CERCLA actions and RCRA
corrective actions and closures.
On November 6 and 7,1989, EPA held
a forum on contaminated soil and
groundwater ("Contaminated Media
Forum") to provide an opportunity for
interested groups to further address
these issues. The Contaminated Media
Forum was attended by representatives
from EPA, states, environmental groups,
Congress, and the regulated community.
A summary of the concerns raised and
suggested solutions appears in the
public docket for this rulemaking.
2. Selection of LDR treatment
standards. Upon further examination,
EPA believes that many of the problems
discussed in the supplemental notice,
and raised by commenters, result from
treatment standards developed pursuant
to the RCRA LDR program that are
generally inappropriate or infeasible
when applied to contaminated soil and
debris. As discussed in the October 1989
notice, EPA's experience under CERCLA
has been that treatment of large
quantities of soil and debris containing-
relatively low levels of contamination
using LDR "best demonstrated available
technology" (BOAT) is often
inappropriate. 54 FR 41567, 41568
(October 10,1989). EPA noted that:
Experience with the CERCLA program has
shown that many sites will have large
quantitiesin some cases, many thousands
of cubic metersof soils that are
contaminated with relatively low
concentrations of hazardous wastes. These
soils often should be treated, but treatment
with the types of technologies that would
meet the standard of BDAT may yield little if
any environmental benefit over other
treatment based remedial options.
54 FR 41568 (October 10,1989).
Examples of these and other situations
reflecting EPA's experience concerning
the inappropriateness of incinerating
contaminated soil and debris are
included in the record for this rule. In
addition, as discussed below, EPA has
experienced problems in achieving the
current noncombustion LDRs for
contaminated soil and debris. Based on
EPA's experience to date and the
virtually unanimous comments
supporting this conclusion, EPA has
determined that, until specific standards
for soils and debris are developed,
current BDAT standards are generally
inappropriate or unachievable for soil
and debris from CERCLA response
actions and RCRA corrective actions
and closures. Instead, EPA presumes
that, because contaminated soil and
debris is significantly different from the
wastes evaluated in establishing the
BDAT standards, it cannot be treated in
accordance with those standards and
thus qualifies for a treatability variance
from those standards under 40 CFR
268.44.
Accordingly, persons seeking a
treatability variance from LDR
treatment standards for contaminated
soil and debris do not need to
demonstrate on a case-by-case basis
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98 Federal Register / Vol. 55. No. 46 / Thursday, March 8, 1990 / Rules and Regulations
believes that it is unnecessary for
petitioners (or the lead Agency in
CERCLA response actions) to make site-
specific demonstrations that BDAT
standards are inappropriate for
contaminated soil and debris. The
numerous comments and Agency
experience supporting a presumption
that the BDAT standards are
inappropriate or not achievable is
clearly warranted at this time because
the criteria in 40 CFR 268.44 for
treatability variances are generally met
for soil and debris. As a result, under
EPA's established treatability variance
procedures (40 CFR 268.44), variance
applications for contaminated soil and
debris do not need to demonstrate that
the physical and chemical properties
differ significantly from wastes
analyzed in developing the treatment
standard and that, therefore, the waste
cannot be treated to specified levels or
by specified methods. Petitions need
only focus on justifying the proposed
alternative levels of performance, using
existing interim guidance containing
suggested treatment levels for soil and
debris (Superfund LDR Guidance #6A,
"Obtaining a Soil and Debris
Treatability Variance for Remedial
Actions", EPA OSWER Directive 9347.3-
06FS, July 1989) as a benchmark.
Although the presumption is that
BDAT standards are not appropriate for
soil and debris, there may be special
circumstances where EPA determines
that the existing BDAT standards are
appropriate for contaminated soils and
debris at a particular site, such as where
high levels of combustible organics in
soil are present. In these circumstances,
the Agency would make a determination
that treatment to the BDAT standards
was appropriate and would require such
treatment.
EPA regulations provide that
treatability variances may be issued on
a site-specific basis. 40 CFR 268.44(h).22
21 In light of today's determination, the
application of this rule requires clarification in two
respects. First, although EPA is today establishing a
general presumption that BDAT standards are
inappropriate or not achievable for treating soil and
debris, the Agency does not believe that this
presumption triggers the rulemaking variance
procedures in 40 CFR 268.44(a). Even with the
presumption, treatment levels will be determined on
a case-by-case basis, and commenters may submit
information contending that the presumption is not
applicable in a particular case. Thus, it is EPA's
view that the site-specific, non-rulemaking
procedures in 40 CFR 268.44(h) are entirely
appropriate. See 53 FR 31199-31200 (August 17,
1988).
Second, EPA does not interpret its site specific
variance procedures as invariably requiring
applicants to demonstrate that they cannot meet
applicable treatment levels or methods. The first
sentence of 40 CFR 268.44(h) makes it clear that an
applicant may make one of two demonstrations to
qualify for a variance: he may show either that he
Thus, they may be approved
simultaneously with the issuance of a
RCRA permit, the approval of a RCRA
closure plan, or the selection of a
remedy in a CERCLA response action in
the ROD. In the case of an on-site
CERCLA response action, the
procedural requirements of the variance
process do not apply. See CERCLA
sections 121(e)(l) and 121(d)(2). The
variance decision will be made as part
of EPA's remedy selection process,
during which data justifying alternative
treatment levels will be included in the
administrative record files, and public
participation opportunities and Agency
response to comment will be afforded as
appropriate under this rule.
In EPA's view, the Agency's
determination that the BDAT standards
are generally inappropriate for
contaminated soil and debris addresses
many of the practical concerns raised by
commenters in the supplemental notice
on the Agency's interpretation of the
term "land disposal". For this reason,
and because EPA has had insufficient
time to review and evaluate the many
lengthy and complex issues raised by
commenters on the supplemental notice,
EPA is deferring any final decision to
modify that interpretation. (EPA will
respond to comments on the alternatives
in the supplemental notice when the
Agency makes a final decision on the
proposed reinterpretation of land
disposal.) Until a final decision is made,
the interpretation announced in the
preamble to the proposed NCP and
discussed in section 1 above will remain
in effect.
Final rule: There is no rule language
on this issue.
Name: Determination of whether a
waste is a hazardous waste.
Proposed rule: The preamble to the
proposed rule discussed how to
determine whether hazardous waste
regulated under RCRA Subtitle C was
present at a site (53 FR 51444).
Response to comments: Some
commenters raised questions about
EPA's discussion about determining
whether a waste exhibits a hazardous
characteristic. One argued that EPA
cannot assume a waste is not a
characteristic waste in the absence of
testing and should therefore adopt a
liberal and inclusive approach to
cannot meet a treatment standard, or that a
treatment method (or the method underlying the
standard is inappropriate for his waste. The final
sentence of ง 268.44(h), identifying the showing an
applicant must include in his variance application,
on its terms applies only to applications submitted
under the first criterion. EPA's presumption,
however, applies to soil and debris regardless of
which of the two types of variances apply.
determining whether RCRA applies to
avoid expensive and time-consuming
testing. Another commenter asked for
clarification on who was responsible for
applying "process knowledge" to
determine whether a waste was a
hazardous waste in the absence of
testing. The commenter asserted that,
under RCRA, EPA exercises
prosecutorial discretion if a generator,
acting in good faith, decides incorrectly
that his waste is not hazardous. EPA
notes that when it determines that there
is a violation there will normally be
some kind of enforcement action taken;
the level and type of prosecutorial
response will depend on a number of
factors, for example, the size of the
company, the significance of the
violation, the intent, etc.
Under RCRA rules, a generator is not
required to test, but may use knowledge
of the waste and its constituents to
judge whether the waste exhibits a
characteristic. (See 40 CFR 262.11(c).)
EPA believes this should also apply if
the lead agency or PRP at a CERCLA
site is the "generator." EPA wants to
make clear, however, that a decision
that a waste is not characteristic in the
absence of testing may not be arbitrary,
but must be based on site-specific
information and data collected on the
constituents and their concentrations
during investigations of the site. Based
on site data, it will be very clear in some
cases that a waste cannot be
characteristic; for example, if a waste
does not contain a constituent regulated
as EP toxic, a decision that the waste
does not exhibit this characteristic can
reliably be made without testing for EP
toxicity. EPA does not expect to
undertake testing when it can otherwise
be determined with reasonable certainty
whether or not the waste will exhibit a
characteristic.
In response to the second concern, the
determination whether a waste is a
hazardous waste may be made by EPA,
the state, or a PRP, depending on the
nature of the action. EPA will take any
necessary or appropriate action if
decisions about the hazardous nature of
the waste are in error or are made
without proper basis.
Several commenters discussed the
question of whether RCRA requirements
can be applicable to RCRA hazardous
waste disposed of before the RCRA
requirements went into effect in 1980.
One commenter argued that they could
not be, unless the waste exhibited a
characteristic at the time of the CERCLA
action. However, as one commenter
noted, EPA has consistently maintained
in enforcement actions that RCRA
requirements apply to any waste
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APPENDIX B
OSWER DIRECTIVE 9347.3-05 FS
SUPERFUND LDR GUIDE #5
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dEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Superfunct Publication:
9347.3-O5FS
July 1989
Superfund LDR Guide #5
Determining When Land
Disposal Restrictions (LDRs)
Are Applicable to CERCLA
Response Actions
CERCLA Section 121(d)(2) specifies that on-site Superfund remedial actions shall attain "other Federal standards,
requirements, criteria, limitations, or more stringent State requirements that are determined to be legally applicable
or relevant and appropriate (ARAR) to the specified circumstances at the site." In addition, the National Contingency
Plan (NCP) requires that on-site removal actions attain ARARs to die extent practicable. Off-site removal and
remedial actions must comply with legally applicable requirements. This guide outlines the process used to determine
whether the Resource Conservation and Recovery Act (RCRA) land disposal restrictions (LDRs) established under
the Hazardous and Solid Waste Amendments (HSWA) are "applicable" to a CERCLA response action. More detailed
guidance on Superfund compliance with the LDRs is being prepared by the Office of Solid Waste and Emergency
Response (OSWER).
For the LDRs to be applicable to a CERCLA
response, the action must constitute placement of a
restricted RCRA ha^rdo^? waste. Therefore, site
managers (OSCs, RPMs) must answer three separate
questions to determine if the LDRs are applicable:
(1) Does the response action constitute
placement?
(2) Is the CERCLA substance being placed
also a RCRA hazardous waste? and if so
(3) Is the RCRA waste restricted under the
LDRs?
Site managers also must determine if the CERCLA
substances are California list wastes, which are a
distinct category of RCRA hazardous wastes restricted
under the LDRs (see Superfund LDR Guide #2).
(1) DOES THE RESPONSE CONSTITUTE
PLACEMENT?
The LDRs place specific restrictions (e.g., treatment
of waste to concentration levels) on RCRA hazardous
wastes prior to their placement in land disposal units.
Therefore, a key determination is whether the response
action will constitute placement of wastes into a land
disposal unit. As defined by RCRA, land disposal
units include landfills, surface impoundments, waste
piles, injection wells, land treatment facilities, salt dome
formations, underground mines or caves, and concrete
bunkers or vaults. If a CERCLA response includes
disposal of wastes in any of these types of off-site land
disposal units, placement will occur. However,
uncontrolled hazardous waste sites often have
widespread and dispersed contamination, making the
concept of a RCRA unit less useful for actions
involving on-site disposal of wastes. Therefore, to
assist in defining when "placement" does and does not
occur for CERCLA actions involving on-site disposal
of wastes, EPA uses the concept of "areas of
contamination" (AOCs), which may be viewed as
equivalent to RCRA units, for the purposes of LDR
applicability determinations.
An AOC is delineated by the areal extent (or
boundary) of contiguous contamination. Such
contamination must be continuous, but may contain
varying types and concentrations of hazardous
substances. Depending on site characteristics, one or
more AOCs may be delineated. Highlight 1 provides
some examples of AOCs.
Highlight 1: EXAMPLES OF AREAS OF
CONTAMINATION (AOCs)
A waste source (e.g., waste pit, landfill,
waste pile) and the surrounding
contaminated soil.
A waste source, and the sediments in a
stream contaminated by the source, where
the contamination is continuous from the
source to the sediments.*
Several lagoons separated only by dikes,
where the dikes are contaminated and the
lagoons share a common liner.
The AOC does not include any contaminated surface
or ground water that may be associated with the land-
based waste source.
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For cm-site disposal, placement occurs when wastes
are moved from one AOC (or unit) into another AOC
(or unit). Placement does not occur when wastes are
left in place, or moved within a single AOC. Highlight
2 provides scenarios of when placement does and does
not occur, as defined in the proposed NCP. The
Agency is current reevaluating the definition of
placement prior to the promulgation of the final NCP,
and therefore, these scenarios are subject to change.
Highlight 2: PLACEMENT
Placement does occur when wastes are:
Consolidated from different
AOCs into a single AOC;
Moved outside of an AOC (for
treatment or storage, for
example) and returned to the
same or a different AOC; or
Excavated from an AOC, placed
in a separate unit, such as an
incinerator or tank that is within
the AOC, and redeposited into
the same AOC.
Placement does not occur when wastes
are:
Treated in situ;
Capped in place;
Consolidated within the AOC; or
ป Processed within the AOC (but
not in a separate unit, such as a
tank) to improve its structural
stability (e.g., for capping or to
support heavy machinery).
In summary, if placement on-site or off-site does
not occur, the LDRs are not applicable to the
Super-fund action.
(2) IS THE CERCLA SUBSTANCE A RCRA
HAZARDOUS WASTE?
Because a CERCLA response must constitute
placement of a restricted RCRA hazardous waste for
the LDRs to be applicable, site managers must evaluate
whether the contaminants at the CERCLA site are
RCRA hazardous wastes. Highlight 3 briefly describes
the two types of RCRA hazardous wastes --listed and
characteristic wastes.
Highlight 3: RCRA HAZARDOUS WASTES
A RCRA solid waste* is hazardous if it is
listed or exhibits a hazardous characteristic.
Listed RCRA Hazardous Wastes
Any waste listed in Subpart D of 40
CFR 261, including:
F waste codes (Part 261.31)
K waste codes (Part 261.32)
P waste codes (Part 261.33(e))
U waste codes (Part 261.33(f))
Characteristic RCRA Hazardous Wastes
Any waste exhibiting one of the following
characteristics, as defined in 40 CFR 261:
Ignitability
Corrosivity
Reactivity
Extraction Procedure (EP)
Toxicity
* A solid waste is any material that is discarded or
disposed of (i.e., abandoned, recycled in certain ways, or
considered inherently waste-like). The waste may be
solid, semi-solid, liquid, or a contained gaseous material.
Exclusions from the definition (e.g., domestic sewage
sludge) appear in 40 CFR 261.4(a). Exemptions (e.g.,
household wastes) are found in 40 CFR 261.4(b).
Site managers are not required to presume that a
CERCLA hazardous substance is a RCRA hazardous
waste unless there is affirmative evidence to support
such a finding. Site managers, therefore, should use
"reasonable efforts" to determine whether a substance
is a RCRA listed or characteristic waste. (Current
data collection efforts during CERCLA removal and
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remedial site investigations should be sufficient for this
purpose.) For listed hazardous wastes, if manifests or
labels are not available, this evaluation likely will
require fairly specific information about the waste (e.g.,
source, prior use, process type) that is "reasonably
ascertainable" within the scope of a Superfund
investigation. Such information may be obtained from
facility business records or from an examination of the
processes used at the facility. For characteristic wastes,
site managers may rely on the results of the tests
described in 40 CFR 26121 - 26124 for each
characteristic or on knowledge of the properties of the
substance. Site managers should work with Regional
RCRA staff, Regional Counsel, State RCRA staff, and
Superfund enforcement personnel, as appropriate, hi
making these determinations.
In addition to understanding the two categories of
RCRA hazardous wastes, site managers will also need
to understand the derived-from rule, the mixture rule,
and the contained-in interpretation to identify correctly
whether a CERCLA substance is a RCRA hazardous
waste. These three principles, as well as an
introduction to the RCRA delisting process, are
described below.
Derived-from Rule (40 CFR 2613(c)(2))
The derived-from rule states that any solid waste
derived from the treatment, storage, or disposal of a
listed RCRA hazardous waste is itself a listed
hazardous waste (regardless of the concentration of
hazardous constituents). For example, ash and
scrubber water from the incineration of a listed waste
are hazardous wastes on the basis of the derived-from
rule. Solid wastes derived from a characteristic
hazardous waste are hazardous wastes only if they
exhibit a characteristic.
Mixture Rule (40 CFR 2613(a)(2))
Under the mixture rule, when any solid waste and
a listed hazardous waste are mixed, the entire mixture
is a listed hazardous waste. For example, if a
generator mixes a drum of listed F006 electroplating
waste with a non-hazardous wastewater (wastewaters
are soh'd wastes - see Highlight 3), the entire mixture
of the F006 and wastewater is a listed hazardous waste.
Mixtures of solid wastes and characteristic hazardous
wastes are hazardous only if the mixture exhibits a
characteristic.
Contained-in Interpretation (OSWMemorandum dated
November 13,1986)
The contained-in interpretation states that any
mixture of a non-solid waste and a RCRA listed
hazardous waste must be managed as a hazardous
waste as long as the material contains (i.e., is above
health-based levels) the listed hazardous waste. For
example, if soil or ground water (i.e., both non-solid
wastes) contain an F001 spent solvent, that soil or
ground water must be managed as a RCRA hazardous
waste, as long as it "contains" the F001 spent solvent.
Delisting (40 CFR 26020 and 22)
To be exempted from the RCRA hazardous waste
"system," a listed hazardous waste, a mixture of a listed
and solid waste, or a derived-from waste must be
delisted (according to 40 CFR 260.20 and .22).
Characteristic hazardous wastes never need to be
delisted, but can be treated to no longer exhibit the
characteristic. A contained-in waste also does not have
to be delisted; it only has to "no longer contain" the
hazardous waste.
If site managers determine that the hazardous
substance(s) at the site is a RCRA hazardous waste(s),
they should also determine whether that RCRA waste
is a California list waste. California list wastes are a
distinct category of RCRA wastes restricted under the
LDRs (see Superfund LDR Guide #2).
(3) IS THE RCRA WASTE RESTRICTED
UNDER THE LDRs?
If a site manager determines that a CERCLA waste
is a RCRA hazardous waste, this waste also must be
restricted for the LDRs to be an applicable
requirement. A RCRA hazardous waste becomes a
restricted waste on its HSWA statutory deadline or
sooner if the Agency promulgates a standard before
the deadline. Because the LDRs are being phased in
over a period of time (see Highlight 4), site managers
may need to determine what type of restriction is in
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Highlight 4: LDR STATUTORY DEADLINES
Wwte
nซiiifo|j Deadline
Spent Solvent and Dioxin-
Coatainlng Wastes
California List Wastes
First Third Wastes
Spent Solvent, Diorin-
Conulning, and California
List Soil and Debris From
CERCLA/RCRA Corrective
Actions
Second Third Wastes
Third Third Wastes
Newly Identified
Wastes
November 8, 1986
July 8, 1987
August 8, 1988
November 8, 1988
June 8, 1989
May 8, 1990
Within 6 months of
identification as a
hazardous waste
effect at the time placement is to occur. For example,
if the RCRA hazardous wastes at a site are currently
under a national capacity extension when the CERCLA
decision document is signed, site managers should
evaluate whether the response action will be completed
before the extension expires. If these wastes are
disposed of in surface impoundments or landfills prior
to the expiration of the extension, the receiving unit
would have to meet minimum technology requirements,
but the wastes would not have to be treated to meet
the LDR treatment standards.
APPLICABILITY DETERMINATIONS
If the site manager determines that the LDRs are
applicable to the CERCLA response based on the
previous three questions, the site manager must: (1)
comply with the LDR restriction in effect, (2) comply
with the LDRs by choosing one of the LDR
compliance options (e.g., Treatability Variance, No
Migration Petition), or (3) invoke an ARAR waiver
(available only for on-site actions). If the LDRs are
determined not to be applicable, then, for on-site
actions only, the site manager should determine if the
LDRs are relevant and appropriate. The process for
determining whether the LDRs are applicable to a
CERCLA action is summarized in Highlight 5.
Highlight 5 - DETERMINING WHEN LDRS
ARE APPLICABLE REQUIREMENTS
Does
placement occur?
Is the
CERCLA waste a
RCRA hazardous or
California list
waste?
Is the
RCRA hazardous
waste restricted
under the LDRs?
LDRs are not
applicable
LDRs are not
applicable:
determine If
they are
relevant and
appropriate
(on-site
response only)
LDRs are not
applicable
LDRs are applicable
requirements
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APPENDIX C
OSWER DIRECTIVE 9330.2-04
DISCHARGE OF WASTEWATER FROM CERCLA SITES INTO POTWs
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20480
APR 15666
OSWER Directive 9330.2-4
;es into POTWS
MEMORANDUM
SUBJECT: Discharge of Wastewater from CERC
FROM: Henry L. Longest II, Director
Office of Emergency and Rented i
Rebecca Hanmer, Director
Office of Water Enforcement and Permits
Gene A. Lucero, Director ^WtJL *\\ LMC&TO
Office of Waste Programs Enforcement
TO: Waste Management Division Directors
Regions I - X
Water Management Division Directors
Regions I - X
A number of emergency removals and remedial cleanup actions
under CERCLA will involve consideration of publicly owned treat-
ment works (POTWs) for discharge of wastewater. The current
off-site policy (issued on May 6, 1985) does not address the set
of concerns and issues unique to POTWs that must be evaluated
during the Remedial Investigation and Feasibility Study (RI/FS)
for discharge of CERCLA wastewater to POTWs.
Recently, we have had meetings with representatives of the .
Association of Metropolitan Sewerage Authorities (AMSA) to discuss
technical and policy concerns related to the POTW/CERCLA issue.
This memorandum is to highlight some of the major points under
consideration which were shared with AMSA at their recent Winter
Technical Conference. The Agency intends to develop policy on
the use and selection of POTWs for CERCLA wastewater. Your
comments are sought on the proposed criteria set forth herein.
These criteria nay be useful in evaluation of POTWs for response
actions (fund financed or responsible party financed) to be taken
in the interim.
Our position is that no CERCLA discharges to a POTW should
occur unless handled in a manner demonstrated to be protective
of human health and the environment. Full compliance with all
applicable requirements of the Clean Water Act (CWA), the
Resource Conservation and Recovery Act (RCRA), and any other
relevant or appropriate environmental statutes will be necessary .
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9330.2-4
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The national pretreatment program, under the Clean Water Act,
requires an analysis to determine whether the discharge of an
industrial user of a POTW may pass through the POTW to cause
receiving water quality problems or may interfere with POTW
operations (including sludge disposal), if the analysis suggests
that limits on the industrial user's discharge are needed to pre-
vent pass through or interference, local limits or other safe-
guards, as necessary, must be established by the POTW and/or the
NPDES permitting authority. The national pretreatment program
requirements apply to the introduction of all non-domestic
wastewater into any POTW, and include, among other things, the
following elements:
o Prohibited discharge standards - prohibit the intro-
duction of pollutants to the POTW which are ignitable,
corrosive, excessively high in temperature, or which
may cause interference or pass through at the POTW.
o Categorical discharge standards - include specific pro-
treatment standards which are established by EPA for the
purpose of regulating industrial discharges in specific
industrial categories.
o Local limits - where no categorical standards have been
promulgated or where more stringent controls are necessary.
POTWs under consideration as potential receptors of CERCLA
wastewaters may include those POTWs either with or without an
approved pretreatraent program. POTWs with an approved pretreat-
ment program are required to have the mechanisms necessary to
ensure compliance by industrial users with applicable pretreatment
standards and requirements.* POTWs without an approved pretreat-
ment program must be evaluated to determine whether sufficient
mechanisms exist to allow the POTW to meet the requirements of
the national pretreatment program in accepting CERCLA, wastewaters.
As noted above, pass through and interference are always prohibited,
regardless of whether a POTW has an approved pretreatment program.
POTWs without an approved pretreatment program must therefore
have mechanisms which are adequate to apply the requirements of
the national pretreatment program to specific situations.
*POTWซ with approved pretreatment programs must, among other
things, establish procedures to notify industrial users (lUs) of
applicable pretreatment standards and requirements, receive and
analyze self-monitoring reports from lUs, sample and analyze
industrial effluents, investigate noncorapliance, and comply with
public participation requirements.
C-2
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9330.2-4
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Determlnation of a POTW's ability to accept CERCLA wastewater
as an alternative to on-site treatment and direct discharge to
receiving waters must be made during the Remedial Investigation/
Feasibility Study (RI/FS) process. During the remedial alternatives
analysis, the appropriateness of using a POTW must be carefully
evaluated. Water Division officials and their state counterparts
should participate in the evaluation of any remedial alternatives
recommending the use of a POTW, and should concur on the selection
of the POTW.
If an alternative considers the discharge of wastewater from
a CERCLA site into a POTW, the following points should be evaluated
in the RI/FS prior to the selection of the remedy for the site:
o The quantity and quality of the CERCLA wastewater and its
compatibility with the POTW (The constituents in the
CERCLA wastewater must not cause pass through or inter-
ference, including unacceptable sludge contamination or
a hazard to employees at the POTW; in some cases, control
equipment at the CERCLA site may be appropriate in order
to pretreat the CERCLA discharge prior to introduction to
the POTW).
o The ability (i.e., legal authority, enforceable mechanisms,
etc.) of the POTW to ensure compliance with applicable
pretreatment standards and requirements, including monitor-
ing and reporting requirements.
o The POTW's record of compliance with its NPDES permit
and pretreatment program requirements to determine if
the POTW is a suitable disposal site for the CERCLA waste-
water.
o The potential for volatilization of the wastewater at the
CERCLA site and POTW and its impact upon air quality.
o The potential for groundwater contamination from trans-
port of CERCLA wastewater or impoundment at the POTW, and
the need for groundwater monitoring.
o The potential effect of the CERCLA wastewaters upon the
POTW's discharge as evaluated by maintenance of water
quality standards in the POTW's receiving waters,
including the narrative standard of "no toxics in toxic
amounts*
C-3
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9330.2-4
- 4 -
o The POTW's knowledge of and compliance with any applicable
RCRA requirements or requirements of other environmental
statutes (RCRA permit-by-rule requirements may be trig-
gered if the POTW receives CERCLA wastewaters that are
classified as "hazardous wastes" without prior mixing
with domestic sewage, i.e., direct delivery to the POTW
by truck, rail, or dedicated pipe; CERCLA wastewaters are
not all necessarily considered hazardous wastes; case by
case determinations have to be made).
o The various costs of managing CERCLA wastewater, including
all risks, liabilities, permit fees, etc. (It may be
appropriate to reflect these costs in the POTW's connection
fees and user charge system).
Based upon consideration of the above elements, the discharge
of CERCLA wastewater to a POTW should be deemed inappropriate if
the evaluation indicates that:
o The constituents in the CERCLA discharge are not com-
patible with the POTW and will cause pass through, inter-
ference, toxic pollutants in toxic amounts in the POTW's
receiving waters, unacceptable sludge contamination, or a
hazard to employees of the POTW.
o The impact of the transport mechanism and/or discharging of
CERCLA wastewater into a POTW would result in unacceptable
impacts upon any environmental media.
o The POTW is determined to be an unacceptable receptor
of CERCLA wastewaters based upon a review of the POTW's
compliance history.
o The use of the POTW is not cost-effective.
If consideration of the various elements indicates that the
discharge of CERCLA wastewater to a POTW is deemed appropriate:
o There should be early public involvement, including
contact with POTW officials and users, in accordance
with the CERCLA community relations plan and public
participation requirements.
o The NPDES permit and fact sheet may need to be modified
to reflect the conditions of acceptance of CERCLA waste-
waters; permit modification may be necessitated by the
need to incorporate specific pretreatment requirements,
local limits, monitoring requirements and/or limitations
on additional pollutants of concern in the POTW's dis-
charge or other factors.
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9330.2-4
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Policy to be developed in the future will apply to all
removal, remedial, and enforcement actions taken pursuant to
CERCLA and Section 7003 of RCRA. We would appreciate your feed-
back on this memorandum and any experience in the use of POTWs
for CERCLA removal or remedial actions that you have to offer.
If you have any comments or questions on this issue, please
submit written comments to the workgroup co-chairs: Shirley Ross
(FTS-382-5755) from the Office of Emergency and Remedial Response,
or Victoria Price (FTS-382-5681) from the Office of Water.
cc: Ed Johnson
Russ Wyer
Tiro Fields
Steve Lingle
C-5
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APPENDIX D
TCLP CONSTITUENTS
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TOXICITY CHARACTERISTIC CONSTITUENTS AND REGULATORY LEVELS
Constituent
Arsenic
Barium
Benzene
Cadmium
Carbon tetrachloride
Chlorodane
Chlorobenzene
Chloroform
Chromium
o-Cresol
m-Cresol
p-Cresol
2,4-D
1 ,4-Dichlorobenzene
1 ,2-Dichloroethane
1 , 1 -Dichloroethylene
2,4-Dinitrotoluene
Endrin
Heptachlor (and its hydroxide)
Hexachlorobenzene
Hexachloro-1 ,3-butadiene
Hexachlorethane
Lead
Lindane
Mercury
Methoxychlor
Methyl ethyl ketone
Nitrobenzene
Regulatory
level (mg/L)
5.0
100.0
0.5
1.0
0.5
- 0.03
100.0
6.0
5.0
200.0
200.0
200.0
10.0
7.5
0.5
0.7
0.13
0.02
0.008
0.13
0.5
3.0
5.0
0.4
0.2
10.0
200.0
2.0
D-l
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TOXICITY CHARACTERISTIC CONSTITUENTS AND REGULATORY LEVELS
Constituent
Pentachlorophenol
Pyridine
Selenium
Silver
Tetrachloroethylene
Toxaphene
Trichlorethylene
2,4,5-Trichlorophenol
2,4,6-Trichlorophenol
2,4,5-TP (Silvex)
Vinyl chloride
Regulatory
level (mg/L)
100.0
5.0
1.0
5.0
0.7
0.5
0.5
400.0
2.0
1.0
2.0
D-2
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APPENDIX E
GLOSSARY OF TERMS
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GLOSSARY OF TERMS
AOC - Area of Contamination
ARARs - Applicable or Relevant and Appropriate Requirements
BDAT - Best Demonstrated Available Technology
BOA - Basic Ordering Agreement
CAA - Clean Air Act
CERCLA - Comprehensive Environmental Response, Compensation, and Liability Act
CLP - Contract Laboratory Program
CWA - Clean Water Act
DE - Disposable Equipment
FIT - Field Investigation Team
HSWA - Hazardous and Solid Waste Amendments
IDW - Investigation - Derived Wastes
LDRs - Land Disposal Restrictions
NCP - National Contingency Plan
PCB - Polychlorinated Biphenyls
PPE - Personal Protective Equipment
POTW - Publicly Owned Treatment Works
PRPs - Potentially Responsible Parties
RCRA - Resource Conservation and Recovery Act
RI/FS - Remedial Investigation/Feasibility Study
RPO - Regional Project Officer
SDWA - Safe Drinking Water Act
SI - Site Inspection
SM - Site Inspection Manager
SWDA - Solid Waste Disposal Act
TSD - Treatment, Storage, and Disposal
TCLP - Toxicity Characteristic Leaching Procedure
TSCA - Toxic Substances Control Act
E-l
US. eovernmont Printing Office: 1991 548-187/40505
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