Papers Presented by EPA
Office of Solid Waste & Emergency Response
at the First Public Briefing
on the 1984 Amendments to the
Resource Conservation and Recovery Act
Video Teleconference
December 11, 1984
Washington, D.C.
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M Street, s
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Program Agenda
Overview Lee N. Thomas, Assistant Administrator
for Solid Waste & Emergency Response
Banning Waste from Land
Disposal John H. Skinner, Director
Office of Solid Waste
Minimum Technology
Requirements Michael B. Cook, Deputy Director
Office of Solid Waste
Corrective Action and
Enforcement Gene A. Lucero, Director
Office of Waste Programs Enforcement
Permits and State
Implementation. Bruce Weddle, Director
Permits and State Programs Division, OSW
Small Quantity Generators
and Delisting... Eileen Claussen, Director
Characterization & Assessment Division, OSW
Leaking Underground
Storage Tanks John P. Lehman, Director
Waste Management & Economics Division, OSW
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RCRA OVERVIEW
Lee M. Thomas*
As Mr. Ruckelshaus just said, this is the first of many
public meetings we plan to hold on the RCRA Amendments. EPA
hasn't yet worked out all of the interpretive issues associated
with this very large and complex bill, but given the fact that it
could take a while to resolve these issues, and that many of the
requirements in the new law have either already taken effect or
are about to do so soon, we thought we'd take this opportunity
to try and accomplilsh two things. First, we'd like to acquaint
you with our interpretation of the statutory requirements that
go into effect relatively soon. These requirements will be referred
to as the "Early Enactment Provisions." Second, we'd like to lay
out some of the issues related to the amendments that we've been
struggling with for the past few months, and to get your insights
on how best to deal with them.
This is by no means the only opportunity you'll have to
express your thoughts to us on the Bill. In February and March
we'll be holding 2 day sessions in Washington, D.C., Chicago,
San Diego, and Dallas to present a more in-depth picture of the
amendments. By then, we anticipate that problems with implementing
the early enactment provisions will have started to surface.
These longer sessions should provide a good forum for EPA, the
States, and private interest groups to sit down and figure out
how to address these problems.
*Assistant Administrator for Solid Waste and Emergency Response
U.S. Environmental Protection Agency. Presented at the Public
Briefing on the 1984 RCRA Amendments, December 11, 1984.
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Another method we're using to solicit early comments on the
amendments is a rule we'll be issuing in the next few weeks. We
call it the "Codification Rule," and what it does is take the
requirements in the amendments that go into effect automatically
by statute and place them in the appropriate sections of the Code
of Federal Regulations. This eliminates the need for each of you
to determine on your own which of our existing regulations have
been superceded by statutory requirements. The Rule codifies 27
requirements, and I believe a summary of these requirements has
been distributed to you.
The Codification Rule by and large follows the statutory
language. The intent of the regulation is not to substantively
elaborate on the statutory provisions, but rather to introduce
the new statutory language verbatim, to the extent possible, into
the existing regulatory framework. However, in analyzing the
various statutory provisions and the interplay between them,
we've had to make some judgments about Congress' intent in bringing
about certain changes. Although the Codification Rule adheres as
closely as possible to the exact language used in the statute,
there are instances where we've had to depart from a strict
transposition in order to carry out Congress' purpose. The
Preamble to the regulations highlights these instances and also
raises various issues of interpretation. We encourage you to
read the rule carefully and submit your views on the issues
raised. We have provided a 60 day comment period for the package.
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I would, like to briefly mention another set of documents
we'll be issuing on the early enactment provisions. We plan to
issue about a dozen guidance documents within the next year.
They fall into two categories. The first are procedural.
Their purpose is to facilitate cooperative implementation of the
hazardous waste program by giving the Regions and States a common
set of procedures to work with. They deal with such topics as
joint issuance of permits and the effect of the amendments on
State authorization.
The second set of documents is more substantive. They
provide our interpretation of several key terms in the statute.
For example, what is a double-liner or an exposure assessment?
Some of the guidance may ultimately be replaced by regulations,
as is the case for double-liners. However, in order to allow the
permitting process to continue, we think it's necessary to provide
some common level of understanding on the meaning of these key
terms. Comments on these documents will also be asked for, and
the documents will be revised as needed.
Now, onto today's proceedings. Congress isn't the only one
that establishes ambitious schedules for EPA. Occasionally, we
do it ourselves; and today we'd like to cover all the early
enactment provisions. The agenda is divided into six presentations,
The format is the same for each. First, a person from my office
with major responsibility for implementing a set of provisions
will summarize them for about 10 minutes. Then, that person and a
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panel of experts from EPA will take questions from the audience.
John Skinner is our first presenter. He'll describe the
restrictions of the land disposal of hazardous waste required
under the amendments. Although many of these provisions don't
go into effect until well after two years, they're included on
the agenda because of the dramatic effect they will have on
hazardous waste management practices, and the attendant need to
plan ahead.
John is followed by Mike Cook. He'll be describing a set of
design and performance standards known as the "Minium Technology
Requirements." Mike's discussion will concentrate on the
requirement for double-liners, and the implications of this
requirement for both new and existing facilities.
The last session of the morning will deal with EPA's new
enforcement authorities under the amendments. Gene Lucero will
make this presentation.
After Gene's segment, we'll take a short meal break. You'll
have several opportunities today to stretch your legs and confer
with your colleagues about the program. In addition to the meal
break, there will be 2 short recesses that Rich will announce
on the air. The first comes up in about an hour; the other, later
this afternoon.
Bruce Weddle will start off the afternoon session with a
two part discussion. The first deals with the amendment's effects
on our ability to issue permits. The second addresses how the
RCRA program partnership between EPA and the States will change
the new Law.
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Eileen Claussen will speak next. Her presentation will
focus on two subjects. First she'll describe the requirements
that will soon apply to small quantity generators and the education
program needed to inform these firms of their new responsibilities.
Second, Eileen will explain the ways in which EPA's "Delisting"
procedure has been changed under the new law.
Jack Lehman will close the afternoon session with a description
of EPA's program for underground tanks containing hazardous
substances. This is a major new undertaking for the Office of
Solid Waste, and Jack will outline the numerous activities EPA
must conduct over the next few years related to these tanks. In
particular, he will describe an important new requirement that
becomes effective very soon—the ban of new steel tanks.
The videoconference will end at 4:00 P. M. Eastern Time. We
invite those of you in Washington, D.C. to stay and ask our
speakers any questions you didn't get a chance to ask while we
were on the air. They will be available until 5:30.
I'd like to thank you for taking the time to participate in
this videoconference, and I look forward to working with you in
carrying out this challenging new program for controlling hazardous
waste.
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BANNING WASTES FROM LAND DISPOSAL
John H. Skinner*
PROBABLY THE MOST IMPORTANT PROVISIONS OF THE NEW LAW ARE THOSE
THAT BAN OR RESTRICT THE DISPOSAL OF HAZARDOUS WASTES ON THE LAND.
TODAY, IN THE UNITED STATES, MOST HAZARDOUS WASTES ARE MANAGED BY
DEPOSITING THEM INTO OR ON THE SURFACE OF THE LAND. 133 MILLION
METRIC TONS OF HAZARDOUS WASTE ARE PLACED IN SURFACE IMPOUNDMENTS.
THESE PONDS OR LAGOONS THAT CONTAIN LIQUID HAZARDOUS WASTE POSE
SIGNIFICANT POTENTIAL FOR GROUNDWATER CONTAMINATION. OVER 30
MILLION METRIC TONS OF HAZARDOUS WASTE ARE DISPOSED OF BY INJECTION
INTO DEEP UNDERGROUND WELLS, AND OVER 5 MILLION METRIC TONS OF
WASTE PER YEAR ARE DISPOSED OF IN LANDFILLS, LAND TREATMENT FACILI-
TIES, WASTE PILES, AND OTHER LAND DEPOSITORIES.
CONGRESS RECOGNIZED THAT ALL OF THESE METHODS COULD POTENTIALLY
RELEASE HAZARDOUS MATERIALS INTO THE ENVIRONMENT. THEY ENACTED A
SET OF PROVISIONS THAT WILL SEVERELY RESTRICT THE DISPOSAL OF
WASTE ON THE LAND. IN THE FUTURE, THESE PROVISIONS WILL CAUSE A
SHIFT TOWARDS THE REDUCTION OF WASTE GENERATION, RECYCLING, AND
THE USE OF MORE SOPHISTICATED TREATMENT AND DESTRUCTION TECHNIQUES.
UNDER THE NEW ACT, THERE IS A STRONG BIAS AGAINST THE LAND DISPOSAL
OF WASTE. THE ACT REQUIRES THAT WE EVALUATE EACH HAZARDOUS WASTE
IDENTIFIED IN OUR REGULATIONS AND DECIDE WHETHER THOSE WASTES
CAN BE SAFELY DISPOSED OF ON THE LAND. THE ACT STATES THAT THE
LAND DISPOSAL OF HAZARDOUS WASTES IS TO BE PROHIBITED UNLESS EPA
*blrector,Office of Solid Waste, U.S. Environmental Protection
Agency
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DETERMINES THAT SUCH A PROHIBITION IS NOT REQUIRED IN ORDER TO
PROTECT HUMAN HEALTH AND THE ENVIRONMENT.
THE ACT SETS FORTH A VERY AGGRESSIVE SCHEDULE FOR EPA TO REVIEW ALL
HAZARDOUS HASTES AND DETERMINE WHETHER OR NOT THEY CAN BE DISPOSED
OF ON THE LAND. WITHIN 24 MONTHS, EPA MUST DECIDE WHETHER TO BAN
THE DISPOSAL OF DIOXIN AND SOLVENT-CONTAINING WASTES. EIGHT MONTHS
LATER, EPA MUST DECIDE WHETHER TO BAN THE DISPOSAL OF THE SO-CALLED
"CALIFORNIA WASTES" —WASTES CURRENTLY SUBJECT TO SIMILAR CONTROLS
UNDER THE NEW PROGRAM ESTABLISHED BY THE STATE OF CALIFORNIA. WITHIN
45 MONTHS OF ENACTMENT, EPA MUST DECIDE WHETHER TO BAN THESE WASTES
FROM UNDERGROUND INJECTION WELLS. IF EPA FAILS TO MAKE A DECISION
DURING THE ALLOTTED TIME FRAMES, THESE WASTES ARE AUTOMATICALLY
PROHIBITED FROM DISPOSAL ON THE LAND. NO ACTION IS NECESSARY ON
EPA'S PART. THE PROHIBITION IS PUT IN PLACE AUTOMATICALLY BY THE
NEW LAW. THIS CLEARLY DEMONSTRATES THE STRENGTH OF THE INCLINATION
AGAINST LAND DISPOSAL CONTAINED IN THIS ACT. UNLESS EPA POSITIVELY
CONCLUDES THAT THE DISPOSAL OF THESE WASTES IS SAFE, THAT DIS-
POSAL IS PROHIBITED.
SO FAR, I'VE TALKED ABOUT DIOXINS, SOLVENTS, AND THE CALIFORNIA
WASTES, BUT THE ACT SETS FORTH A SIMILAR PROGRAM FOR ALL HAZARDOUS
WASTES THAT WE CURRENTLY REGULATE AS WELL AS THOSE WE WILL REGULATE
IN THE FUTURE. WITHIN 24 MONTHS OF ENACTMENT, EPA MUST PUBLISH A
SCHEDULE FOR DETERMINING WHETHER TO BAN THE LAND DISPOSAL OF ALL
HAZARDOUS WASTES LISTED IN OUR REGULATIONS. THE NEW LAW SAYS THAT
WE SHOULD FIRST CONSIDER HIGH HAZARD, HIGH VOLUME WASTES. IT
ALSO SETS THE GENERAL FRAMEWORK FOR THE SCHEDULE AND REQUIRES EPA
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TO REACH DECISIONS ON ONE-THIRD OF THE WASTES LISTED IN ODR REGU-
LATIONS WITHIN 45 MONTHS, THE SECOND THIRD OF THE WASTES LISTED
IN OUR REGULATIONS IN 55 MONTHS, AND ALL REMAINING WASTES WITHIN
66 MONTHS OF ENACTMENT. IN ADDITION, AS WE IDENTIFY NEW HAZARDOUS
WASTES IN THE FUTURE, DECISIONS ON LAND DISPOSAL MUST BE MADE
WITHIN 6 MONTHS OF THAT DATE.
CONGRESS RECOGNIZED THAT IN ORDER TO PROHIBIT THE DISPOSAL OF
HAZARDOUS WASTE ON THE LAND, IN SOME INSTANCES IT WILL BE NECESSARY
TO ALLOW TIME FOR ALTERNATIVE TREATMENT CAPACITY TO BECOME AVAIL-
ABLE. FOR THIS REASON, THE ACT ALLOWS SOME EXTENSIONS TO THE
EFFECTIVE DATE OF THE PROHIBITIONS. FOR EXAMPLE, THE EFFECTIVE
DATE OF THE PROHIBITIONS CAN BE EXTENDED FOR UP TO 2 YEARS BEYOND
THE DATES MENTIONED PREVIOUSLY IF ALTERNATIVE TREATMENT AND PROCESS-
ING CAPACITY IS NOT AVAILABLE. IN ADDITION, EXCEPTIONS CAN BE
GRANTED TO INDIVIDUAL FACILITIES FOR UP TO 1 YEAR, AND RENEWED
FOR AN ADDITIONAL YEAR. IN ORDER TO QUALIFY FOR THESE EXEMPTIONS,
IT MUST BE DEMONSTRATED THAT A BINDING CONTRACTUAL COMMITMENT TO
CONSTRUCT OR PROVIDE ALTERNATIVE CAPACITY HAS BEEN MADE.
LET ME NOW REVIEW OUR PLANS FOR ISSUING REGULATIONS TO IMPLEMENT
THESE KEY PROVISIONS OF THE NEW ACT. THE FIRST REGULATION WE
WILL ISSUE WILL COVER THE SCHEDULE THAT EPA WILL USE TO REVIEW ALL
OF THE WASTES LISTED IN OUR REGULATIONS. THIS SCHEDULE IS VERY
IMPORTANT BECAUSE IT WILL IDENTIFY WHICH WASTES WE WILL EVALUATE
FIRST AND WHICH WASTES WILL BE EVALUATED LATER. IT WILL PLACE
THE WASTES IN 3 CATEGORIES TO BE REVIEWED OVER THE 45, 55, AND 66
MONTH TIME FRAME.
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CONGRESS WANTED THIS SCHEDULE TO BE DEVELOPED WITHIN 24 MONTHS, AND
IN ORDER TO ACCOMPLISH THIS, EXEMPTED THIS REGULATION FROM THE
REQUIREMENTS OP THE ADMINISTRATIVE PROCEDURES ACT. THIS MEANS THAT
WE CAN ISSUE THIS REGULATION WITHOUT PROVIDING OPPORTUNITY FOR
NOTICE AND PUBLIC COMMENT, WHICH IS USUALLY REQUIRED BY THAT ACT.
WE HAVE DECIDED, HOWEVER, THAT PUBLIC INVOLVEMENT IN THIS PROGRAM
IS ESSENTIAL AND WE WILL ISSUE A PROPOSED REGULATION FOR PUBLIC
REVIEW AND COMMENT BEFORE ISSUING THE FINAL RULE.
WE WILL HAVE AN EARLY DRAFT OF THIS REGULATION AVAILABLE IN
MID-FEBRUARY 1985. AT THAT TIME, WE WILL BE AVAILABLE TO DISCUSS
THIS DRAFT WITH INTERESTED PARTIES. WE WILL MAKE A SPECIAL EFFORT
TO CONTACT STATE AND LOCAL AGENCIES, AND ENVIRONMENTAL AND PUBLIC
INTEREST GROUPS, AS WELL AS THE REGULATED INDUSTRIES. OPEN
COMMUNICATION WITH ALL INTERESTED PARTIES IS A BASIC PRINCIPLE
THAT WE WILL FOLLOW THROUGHOUT THIS EFFORT. THE PROPOSED REGULATION
WILL BE PUBLISHED IN THE FEDERAL REGISTER IN THE SUMMER OF 1985
AND WILL BE FOLLOWED BY A 60-DAY FORMAL PUBLIC COMMENT PERIOD.
WE WILL THEN DEVELOP THE FINAL RULE WITH THE GOAL TO PUBLISH IT
BY THE STATUTORY DEADLINE OF NOVEMBER 8TH, 1986.
THE SECOND REGULATION THAT WE ISSUE WILL COVER 4 SUBJECTS. THE
FIRST WILL BE THE "DECISION RULE" THAT EPA WILL USE TO DETERMINE
WHETHER TO PROHIBIT THE DISPOSAL OF VARIOUS WASTES. IN ORDER TO
PUT THIS "DECISION RULE" IN CONTEXT, WE WILL THEN APPLY IT TO
THE FIRST SET OF WASTES THAT WE ARE REQUIRED TO EVALUATE—THE
DIOXIN, SOLVENT, AND CALIFORNIA WASTES. THIS WILL BE THE SECOND
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SUBJECT COVERED BY THIS REGULATION—A DECISION ON WHETHER TO PRO-
HIBIT DISPOSAL OF THESE PARTICULAR WASTES. THIRDLY, WE WILL
ESTABLISH TREATMENT STANDARDS FOR THESE WASTES. THESE WILL SPECIFY
THE LEVEL OF TREATMENT NECESSARY SO THAT THE PROHIBITED WASTES
CAN BE DISPOSED OF ON THE LAND, FINALLY, WE WILL ESTABLISH THE
CRITERIA TO BE USED TO DETERMINE WHETHER TO EXTEND THE EFFECTIVE
DATES FOR THE PROHIBITIONS.
WE WILL ALSO ALLOW FOR CONSIDERABLE PUBLIC REVIEW OF THIS IMPORTANT
FOUR-PART RULE. AN EARLY DRAFT WILL BE AVAILABLE FOR DISCUSSION
IN SEPTEMBER 1985 AND A FORMAL PROPOSAL WILL BE PUBLISHED IN THE
FEDERAL REGISTER BY THE END OF 1985. AGAIN, WE PLAN TO ISSUE A
FINAL RULE BY THE STATUTORY DEADLINE OF NOVEMBER 8, 1986.
WHAT DOES ALL THIS MEAN? WHERE WILL THESE PROVISIONS LEAVE US
ULTIMATELY? TO BEGIN WITH, IN LIGHT OF THESE RESTRICTIONS AND
PROHIBITIONS, GENERATORS WILL SEEK OUT MEANS OF REDUCING THE AMOUNT
OF WASTE PRODUCED IN THE FIRST PLACE. IN ADDITION TO THAT, THEY
WILL ATTEMPT TO RECYCLE AND RE-USE WASTES SO THAT THEY DON'T NEED
TO BE DISPOSED OF. CERTAIN HAZARDOUS WASTES, SUCH AS ORGANICS,
WILL BE DESTROYED THROUGH INCINERATION AND ACIDS AND BASES WILL
BE NEUTRALIZED. WASTES CONTAINING INORGANICS, SUCH AS HEAVY METALS,
WILL BE TREATED THROUGH STABILIZATION OR FIXATION. IN THESE TREAT-
MENT PROCESSES, THE METALS ARE TIED UP IN A CHEMICAL MATRIX SO
THAT THEY DON'T LEACH. FINALLY, FOR THOSE WASTES THAT ARE ALLOWED
TO BE DISPOSED OF ON THE LAND, THE DISPOSAL FACILITY WILL HAVE TO
COMPLY WITH STRINGENT DESIGN AND OPERATING STANDARDS. MIKE COOK
WILL ADDRESS THIS LATER ON.
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EVERYONE REALIZES THAT THERE WILL ALWAYS BE RESIDUALS THAT MUST
BE DISPOSED OF ON THE LAND; BUT, IN THE FUTURE, UNDER THE NEW
LAW, THESE RESIDUALS WILL BE REDUCED TO A MINIMUM AND THEN SUBJECT
TO CHEMICAL, BIOLOGICAL, AND PHYSICAL TREATMENT PROCESSES SO THAT
THE POTENTIAL FOR CONTAMINATION FROM LAND DISPOSAL FACILITIES IS
GREATLY LESSENED.
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MINIMUM TECHNOLOGY REQUIREMENTS
Michael B. Cook*
The set of requirements covering mininum technology will
drastically change the way hazardous waste is disposed of in the
very near future. These are the so-called "minimum technology
standards," a set of unusually specific statutory requirements
tht significantly enhance EPA's current rules. for some of
these requirements — for example, the air emission and leak
detection standards — EPA must promulgate regulations before the
requirements can go into effect. Because it takes a fairly
long time to propose and finalize a rule, the impact of these
statutory minima won't be felt for several years. Other tech-
nology requirements go into effect automatically by statute.
Obcviously, their impact is more immediate.
EPA's current regulations for liners differ depending on
whether the facility is permitted or is operating under interim
status. For permitted facilities, the regulatory mimina is a
single liner and leachate collection. During interim status,
neither a liner or leachate collection is required. The
amendments change this by prescribing two liners and leachate
collection for both types of facilities.
Prom now on, in order to receive a permit, owners and oper-
ators of new surface impoundments must install two liners and
a leachate collection system above the top liner. For landfills
*Deputy Director, Office of Solid Waste, U.S. Environmental
Protection Agency.
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the requirement is almost the same, except that two leachate
collection systems are required: one above, and the other
between the liners.
The codification rule, that Lee Thomas described earlier,
amends Part 264 of our regulations to incorporate the double
liner requirement. We have not at this point specified the
types of liners that must be installed to comply with the re-
quirement. Rather, the codification rule merely repeats the
statutory test — that the liners protect human health and the
environment. The amendments give EPA two years to revise its
regulations. In the meantime, however, EPA plans to issue
guidance documents to inform owners and operators of what we
think are acceptable liner systems. This should facilitate
the permitting process by reducing the need for permit writers
to determine on their own the adequacy of liners described in
individual permit applications. EPA plans to issue this
guidance in March of next year.
Understandably, most permit applications received thus far
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do not reflect the double liner requirement. Thus, owners and
operators will have to revise their applications before EPA can
process them. As will be explained this afternoon, all permit
applications for land disposal facilities are due by next
November.
As far as interim status facilities are concerned, landfill
units that first receive hazardous waste after May 8, 1985 are
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subject to the same requirements for liners and leachate col-
lection as permitted landfills. Furthermore, in order to
provide EPA the opportunity to inspect the liner system before
the unit is filled, the amendments require that the owner or
operator notify EPA sixty days before using it.
If an owner or operator laterally expands a landfill unit
after May 8th, that unit is also subject to the double liner
requirement. The same is true for surface impoundments. A
significant difference, however, in the statutory treatment of
the two types of facilities has to do with retrofitting. Unlike
landfills, existing surface impoundments must be emptied, and
double liners and leachate collection systems installed, by
November of 1988. Failure to meet the deadline does not result
in the impoundment's closure. It does, however, foreclose plac-
ing additional hazardous waste in the impoundment. Because this
aspect of the double liner provision is the most expensive of
the minimum technology requirements, I will give a fairly detailed
description of the statutory variances from the requirement.
There are three narrow, and one potentially broad exempt-
ions to the retrofitting requirement. The first of the narrow
exemptions applies to single-lined impoundments that are
located greater than a quarter mile from an underground source
of drinking water. Because about ninety-five percent of exist-
ing impoundments are located within such areas, few facilities
will qualify for this variance.
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A second narrow exemption is provided for impoundments
for which a consent decree was entered into before November 8th.
If the decree happened to require corrective action and ensured
protection of human health and the environment equivalent to a
double liner and leachate collection, the impoundment need not be
retrofitted. EPA is unaware of any consent decrees that meet
these criteria.
The third statutory exemption is currently unavailable. It
specifies that if EPA promulgates design, operation and location
standards that collectively provide protection of human health
and the environment equivalent to a double liner system, then
impoundments that meet these standards are exempted from the double
liner requirement. We anticipate that a very small fraction of
the country will satisfy the locational aspects of these future
standards.
The fourth, and most significant exemption from the double
liner requirement is provided for wastewater impoundments. There
are four criteria for this exemption. First, the impoundment
must be conducting "aggressive" biological treatment. This is
not as restrictive as it might sound; the legislative history
includes, for example, aeration within the definition of aggressive
biological treatment. Second, the facility must be subject to
section 402 of the Clean Water Act. Third, the impoundment must
be in compliance with the Part 264 ground-water monitoring stand-
ards. The fourth criterion ties into the effluent guidelines
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program, if an effluent guideline has been written for the
facility, the facility must be in compliance with it in order to
escape the retrofitting requirement. If there is no applicable
effluent guideline, and the facility is not implementing "Best
Available Technology" based on a so-called BPJ permit, then
to qualify for a variance, the impoundment must be part of a
facility that is achieving a significant degradation in the
untreated wastestream of the priority pollutants regulated
under the Clean Water Act and the "Appendix Eight" constituents
regulated under RCRA. Needless to say, guidance documents will
have to be written to inform applicants and permit writers of
the type of information needed to process requests for this
particular waiver.
In general, in order to obtain any of the variances just
described, owners or operators must do three things. First,
they must apply for the variance by November of 1986. Second,
they must submit groundwater monitoring data, and all reasonably
ascertainable evidence on whether the impoundment is leaking.
And third, they must have a registered professional engineer
certify that the impoundment meets the criteria for a variance.
EPA, in turn, must provide notice and comment, and process
the waiver application by November of 1987. If EPA later
determines that an impoundment granted a variance is likely to
leak hazardous constituents to ground water, EPA is empowered
to require that impoundment to retrofit. An exception to this
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broad authority is provided for wastewater impoundments. For
these impoundments, in order to withdraw the variance, EPA must
find that the impoundment is actually leaking — not simply
likely to leak — and that the owner or operator has failed to
demonstrate that retrofitting is not needed to protect human
health and the environment. Presumably, the Congress wanted to
preserve for wastewater impoundments the option of using cor-
rective action in lieu of retrofitting where installation of a
double liner is not absolutely necessary.
To summarize, the minimum technology requirement for double
liners and leachate collection has a significant and, in most
cases, immediate impact on land disposal facilities. By next
November, all permit applications must incorporate the statutory
minima. For interim status facilities, all new units must be
double-lined starting next May, and all waiver applications for
the retrofitting requirement must be submitted by November of
1986. Facilities should start planning today — either for the
liners they will have to install, or the data they will have to
compile in order to qualify for a variance from this minimum
technology requirement.
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CORRECTIVE ACTION AND ENFORCEMENT
GENE A. LUCERO *
I'D LIKE TO TALK ABOUT THE EFFECT OF THE RCRA AMENDMENTS ON INSPECTIONS
AND ENFORCEMENT. CONGRESS WAS CONCERNED ABOUT THE LOW LEVELS OF COMPLIANCE
AND CERTAIN GAPS IN AUTHORITY WHICH FRUSTRATED OUR ACHIEVING A CLEANER
ENVIRONMENT. THE MOST IMPORTANT CHANGES GIVE THE AGENCY VERY BROAD
AUTHORITIES TO ORDER CORRECTIVE ACTION FOR RELEASES OF HAZARDOUS WASTE
INTO THE ENVIRONMENT. IN OUR OPINION, THIS AUTHORITY WILL RESULT IN A
CLEANUP PROGRAM FOR RCRA REGULATED FACILITIES SIMILAR TO THAT FOR UNCON-
TROLLED SITES UNDER THE SUPERFUND LAW. EQUALLY DRAMATIC, CONGRESS MANDATED
MINIMUM TECHNOLOGY REQUIREMENTS FOR INTERIM STATUS FACILITIES. NEW AND
CERTAIN OTHER UNITS AT LANDFILLS AND SURFACE IMPOUNDMENTS ARE REQUIRED
TO HAVE DOUBLE LINERS, AMONG OTHER THINGS, WITHIN SIX MONTHS OF ENACTMENT.
ASSURING COMPLIANCE HERE WILL BE A NEW AND VERY IMPORTANT, EFFORT FOR
EPA AND THE DELEGATED STATES. IN ORDER TO IMPROVE COMPLIANCE, CONGRESS
ALSO DIRECTED THAT CERTAIN INTERIM STATUS FACILITIES MUST CERTIFY THEIR
COMPLIANCE WITH GROUNDWATER MONITORING AND FINANCIAL RESPONSIBILITY
REQUIREMENTS, WITHIN 1 YEAR OF ENACTMENT OR FACE LOSS OF INTERIM STATUS,
WHICH WOULD LEAD TO CLOSURE. THE REAUTHORIZATION ACT ALSO REQUIRES
INSPECTIONS OF ALL FACILITIES AT LEAST ONCE EVERY TWO YEARS; DIRECTS EPA
TO DO INSPECTIONS OF FEDERAL, STATE AND LOCAL FACILITIES; AND BRINGS
SEVERAL NEW CATEGORIES OF HANDLERS UNDER THE REGULATORY COVERAGE OF
RCRA.
NEEDLESS TO SAY, ALL THIS PRESENTS US WITH MAJOR NEW RESPONSIBILITIES WHICH
MUST BE ADDED TO THE BASIC INSPECTION AND ENFORCEMENT STRATEGY.
*Director, Office of Waste Programs Enforcement, U.S. Environmental
Protection Agency.
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NOW, SOME DETAILS.
TOE CORRECTIVE ACTION AUTHORITY FOR INTERIM STATUS FACILITIES IS SET OUT
IN A NEW SECTION, S 3008(h) . IT STATES THAT WHENEVER THERE IS OR HAS
BEEN A RELEASE OF HAZARDOUS WASTE INTO THE ENVIRONMENT, THE ADMINISTRATOR
MAY ISSUE AN ORDER OR BEGIN A CIVIL ACTION IN U.S. DISTRICT COURT
REQUIRING CORRCTIVE ACTION.
WE INTERPRET THE TERMS BROADLY. THE TERM "RELEASE" MEANS EITHER A PAST
OR PRESENT RELEASE OF HAZARDOUS WASTE OR CONSTITUENTS. THE RELEASE MAY BE
FROM EITHER A HAZARDOUS WASTE OR A SOLID WASTE UNIT. AND, IT MAY BE INTO
THE AIR, LAND, SURFACE WATER OR GROUNDWATER TO TRIGGER THIS NEW AUTHORITY.
WE READ THE TERM "CORRECTIVE ACTION" TO COVER THE FULL RANGE OF POSSIBLE
ACTIONS, FROM STUDIES TO "QUICK FIX" MEASURES TO FULL "CLEAN UPS".
IT IS EASY TO IDENTIFY MANY CONDITIONS WHICH MAY EXIST AT INTERIM STATUS
FACILITIES WHICH A CORRECTIVE ACTION ORDER CAN PROMPTLY ADDRESS. THE
IMPACT OF THESE ORDERS WILL BE INCREASED BY THE STIFF PENALTIES FOR
NONCOMPLIANCE. A VIOLATOR CAN BE FINED UP TO $25,000 PER DAY OF
NONCOMPLIANCE AND THE INTERIM STATUS OF THE OFFENDING FACILITY MAY BE
SUSPENDED OR REVOKED.
A SIMILAR CORRECTIVE ACTION AUTHORITY HAS BEEN CREATED FOR PERMITTED
FACILITIES. CORRECTIVE ACTION IS REQUIRED IN THE PERMITS " ...FOR ALL
RELEASES.. .FROM ANY SOLID WASTE MANAGEMENT UNIT.. JVT A TREATMENT, STORAGE
OR DISPOSAL FACILITY...SEEKING A PERMIT...REGARDLESS OF THE TIME AT WHICH
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WASTE WAS PLACED IN THE UNIT." AND IN A THIRD SECTION, CONGRESS ALSO
DIRECTED THE AGENCY TO ORDER CORRECTIVE ACTION BEYOND THE FACILITY BOUNDARY,
ON A CASE-BY-CASE BASIS, PENDING NEW REGULTIONS.
TAKEN TOGETHER, THESE AMENDMENTS CONVEY TO THE AGENCY AND AUTHORIZED
STATES THE JURISDICTION TO HANDLE CERTAIN RELEASES WHICH PREVIOUSLY COULD
ONLY BE REACHED UNDER THE PROVISIONS OF SUPERFUND. IN A SEPARATE
AMENDMENT, CONGRESS ALSO REVISED SECTION 7003, THE IMMINENT HAZARD
AUTHORITY, TO MAKE IT EQUAL IN SCOPE WITH SECTION 106 OF CERCLA. THESE
ARE CLEARLY NEW MEANS TO DEAL WITH RELEASES OF HAZARDOUS WASTES THAT IN
THE PAST WERE BEYOND THE SCOPE OF RCRA.
WE ARE WORKING ON THE QUESTION OF WHEN IT IS BEST TO USE THE DIFFERENT
AUTHORITIES. SOME CASES ARE CLEAR. FOR EXAMPLE, WHERE A COMPANY IS
CLOSING AN INTERIM STATUS UNIT BECAUSE IT CANNOT OBTAIN A PERMIT, ISSUING
A CORRECTIVE ACTION ORDER MAY BE THE BEST MEANS TO REQUIRE CERTAIN STUDIES
FOR PROPER CLOSURE TO BE PERMORMED, OR TO DIRECT "QUICK FIXES" TO BE
MADE. THIS MIGHT BE ESPECIALLY USEFUL IF THERE ARE SERIOUS QUESTIONS
ABOUT THE COMPANY'S SOLVENCY. GUIDANCE ON THE USE OF THESE AUTHORITIES
WILL BE AVAILABLE EARLY IN 1985. THIS DOCUMENT WILL ALSO SPEAK TO HOW
TO CHOOSE BETWEEN RCRA AND SUPERFUND APPROACHES, AND HOW TO USE THEM IN
TANDEM WITH ONE ANOTHER.
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LET ME NOW TURN TO ANOTHER PROVISION WITH MAJOR IMPLICATIONS FOR OUR
INSPECTION AND ENFORCEMENT STRATEGY — MINIMUM TECHNOLOGY STANDARDS FOR
INTERIM STATUS FACILITIES. THE REQUIREMENTS FOR A DOUBLE LINER AND
DOUBLE LEACHATE COLLECTION REMOVAL SYSTEM FOR LANDFILLS AND A DOUBLE
LINER AND SINGLE LEACHATE COLLECTION REMOVAL SYSTEM FOR SURFACE IMPOUNDMENTS
GO INTO EFFECT 6 MONTHS FROM THE DATE OF ENACTMENT, OR ON MAY 8th,
1985. ALL NEW UNITS AND LATERAL EXPANSIONS AT EXISTING INTERIM STATUS
FACILITIES, ARE SUBJECT TO THESE REQUIREMENTS. THESE SYSTEMS MUST BE
INSTALLED AND OPERATED IN "GOOD FAITH" COMPLIANCE WITH EPA GUIDANCE AND
REGULATIONS. AS ALREADY DISCUSSED, THIS GUIDANCE WILL BE MADE AVAILABLE
TO YOU IN THE BEGINNING OF 1985.
MONITORING COMPLIANCE TO ENSURE THAT THESE SYSTEMS ARE INSTALLED AND OPERATED
IN "GOOD FAITH" WILL BE A CHALLENGE. EPA AND THE STATES, WILL NOT HAVE
A NEW ARMY OF INSPECTORS FOR THIS TASK. TO HELP IN THIS EFFORT, THE
STATUTE REQUIRES PRIOR NOTICE OF RECEIPT OF WASTE. AS PROPOSED IN THE
INTERIM FINAL RULE, WE ARE ALSO CONSIDERING REQUIRING, THROUGH FURTHER RULE-
MAKING, PRIOR NOTIFICATION OF WHEN THE SYSTEM IS TO BE INSTALLED AND
DETAILED INFORMATION ON THE DESIGN OF SYSTEM AND CONSTRUCTION SCHEDULES.
IT MAY BE NECESSARY TO HAVE THE CONSTRUCTION CERTIFIED BY A QUALIFIED
ENGINEER. WE MAY ALSO REQUIRE THAT DETAILED RECORDS BE KEPT, INCLUDING
STEP-BY-STEP CONSTRUCTION CERTIFICATIONS. UNTIL REGULATIONS ARE ISSUED,
WE SUGGEST THAT FOLLOWING THESE TYPES OF PROCEDURES WILL BE EVIDENCE
OF GOOD FAITH COMPLIANCE WHEN THE FACILITY SEEKS A PERMIT. THIS APPROACH,
HOWEVER, MUST BE COUPLED WITH SELECTIVE INSPECTIONS AND ENFORCEMENT.
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A THIRD IMPORTANT CHANGE TO THE LAW INVOLVES EXPANSION OF THE INSPECTION
RESPONSIBILITIES OF EPA AND THE STATES. THE NEW RCRA PROVISIONS MANDATE
THE TIMING OF INSPECTIONS AND AN INSPECTION REGULATION. FOR EXAMPLE,
ALL TREATMENT, STORAGE, AND DISPOSAL FACILITIES MUST BE INSPECTED NO
LESS THAN ONCE EVERY 2 YEARS, BEGINNING A YEAR AFTER THE DATE OF ENACTMENT.
IN ADDITION, THE AGENCY IS REQUIRED TO ISSUE REGULATIONS GOVERNING THE
MANNER AND FREQUENCY OF INSPECTIONS. AND SIGNIFICANTLY, THE STATUTE
SPECIFICALLY REQUIRES EPA TO INSPECT FEDERAL, STATE, AND LOCAL FACILITIES
ANNUALLY.
AS YOU HEARD EARLIER TODAY, A WHOLE NEW SET OF HANDLERS ARE NOW SUBJECT
TO RCRA REGULATIONS. THE INCLUSION OF SMALL QUANTITY GENERATORS IN THE
REGULATORY SYSTEM IS A GOOD EXAMPLE. RECOGNIZING THE DIFFICULTY OF INSPECTING
THIS MUCH LARGER UNIVERSE OF REGULATED HANDLERS, CONGRESS HAS REQUESTED
THAT THE AGENCY DEVELOP A REPORT TO CONGRESS ON THE POTENTIAL FOR SUPPLEMENTING
EPA AND STATE INSPECTIONS WITH PRIVATE INSPECTIONS. WE'RE ALSO LOOKING
INTO ADOPTING NON-TRADITIONAL TECHNIQUES FOR INSPECTING AND ENFORCING
REGULATORY REQUIREMENTS FOR THESE NEWLY REGULATED COMMUNITIES. WE'RE
CURRENTLY EXAMINING SEVERAL OPTIONS, SUCH AS ENVIRONMENTAL AUDITING, AND
WE'LL BE CONTACTING THE STATES, COMPANIES OFFERING ENVIRONMENTAL IMPAIRMENT
INSURANCE, INDEPENDENT CONTRACTORS, AND OTHER INTERESTED PARTIES IN THE
NEAR FUTURE TO MORE FULLY EXPLORE THOSE OPTIONS.
CONGRESS'S STRONG STANCE ON THE NEED FOR IMPROVED RCRA COMPLIANCE IS
EVIDENCED BY THE NEW INSPECTION REQUIREMENTS AS WELL AS BY A NEW PROVISION
THAT TERMINATES INTERIM STATUS AUTOMATICALLY IF CERTAIN REQUIREMENTS SET
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FORTH BY THE STATUTE ARE NOT MET. THE STATUTE PROVIDES THAT THE INTERIM
STATUS LANDFILLS WILL LOSE INTERIM STATUS UNLESS THE FACILITY CERTIFIES
COMPLIANCE WITH GROUNDWATER MONITORING AND FINANCIAL RESPONSIBILITY
REQUIREMENTS AND SUBMITS THEIR PART B APPLICATION OR CLOSURE PLAN BY
NOVEMBER 8th, 1985. THAT'S LESS THAN A YEAR AWAY. THE PURPOSE OF THIS
REQUIREMENT IS TO UPGRADE THE FACILITY'S COMPLIANCE NOW WHILE IN INTERIM
STATUS SO THAT THE FACILITY IS CLOSER TO ACHIEVING PERMITTING STANDARDS.
FOR THOSE FACILITIES THAT CAN'T DEMONSTRATE COMPLIANCE, INTERIM STATUS WILL
BE REVOKED AUTOMATICALLY BY STATUTE. LET HE MAKE IT CLEAR, HOWEVER, THAT
THE REVOCATION OF INTERIM STATUS DOESN'T RELIEVE FACILITIES FROM CLOSURE OR
POST-CLOSURE REQUIREMENTS.
THERE ARE OTHER PROVISIONS TO BE CONSIDERED AS WELL, BUT IN THE INTEREST OF
TIME I WON'T DISCUSS THEM HERE TODAY. FOR MORE INFORMATION, I DIRECT YOU
TO THOSE PROVISIONS REGARDING GREATER PUBLIC PARTICIPATION REQUIREMENTS FOR
7003 SETTLEMENTS AND ADDITIONAL OPPORTUNITIES FOR CITIZEN SUITS. THERE
WILL ALSO BE NEW INSPECTION AND ENFORCEMENT RESPONSIBILITIES COVERING SMALL
QUANTITY GENERATORS, UNDERGROUND STORAGE TANKS, AND BURNERS AND BLENDERS
OF HAZARDOUS WASTE.
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PERMITS AND STATE IMPLEMENTATION
Bruce Weddle*
Perhaps the biggest challenge those of you in the Regions
and States will experience as a result of the new legislation
will be in the permit program. Almost all of the new provisions
will directly or indirectly affect the issuance of permits. The
regulated community will begin to see the impact of many of the
Act's new provisions through the permit application and issuance
process.
All permits issued after the 8th of November, must incor-
porate many of the Act's new provisions. For example, landfill
permits for new units, replacements or lateral expansions must
now include requirements for two or more liners with leachate
collection above and between the liners. All permits must also
provide for corrective action for releases of hazardous waste or
hazardous constituents from all solid waste management units at
the facility, regardless of the time at which waste was placed
there. It's important to note that the permit doesn't have to
identify the nature and extent of the release, nor is it necessary
for the permit to specify the exact corrective action to be
followed. Permits may be issued with compliance schedules that
establish a timetable for gathering data necessary to determine
the magnitude of the release as well as for the corrective action
needed.
Permits for landfill facilities must also include a ban on
the placement of bulk liquid hazardous waste after May 8th, 1985
and a ban on the placement of any liquids after November 8th, 1986.
*Director, Permits & State Programs Division, Office of Solid Waste,
U.S. Environmental Protection Agency.
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However, a limited waiver is available for this requirement.
Finally, landfill permits must include a five year re-opener
provision for review and modification of the permit.
Permits for new surface impoundments and expansions and
replacements of existing surface impoundments must include require-
ments for two or more liners with leachate collection between the
liners. Permits for existing surface impoundments must require
the installation of double liners and a leachate collection system
within four years of the date of enactment. As Mike Cook explained
before lunch, the Act establishes a possible exemption from this
requirement if the exemption request is received within 2 years of
the date of enactment. Surface impoundment permits, like landfill
permits, must require corrective action for prior releases from all
units and provide for a five year review.
Finally, permits for incinerators and treatment and storage
facilities must, like landfill and surface impoundment permits,
require corrective action and financial assurance for releases of
hazardous constituents from all current or past solid waste manage-
ment units at the facility.
Another provision of the Act requires landfill and surface
impoundment facility owners and operators to submit exposure assess-
ments. These assessments are to be developed from readily available
information. They must address potential avenues of public exposure
to any hazardous substances released from the permitted units. This
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permitted units. This includes releases that may be associated
with transportation of hazardous waste to or from the facility, and
releases occurring from both normal operations and from accidents
at the facility. The assessment must also identify other potential
pathways of human exposure. Owners and operators who already have
submitted a permit application or who will submit their applications
during the next 8 months must submit their exposure assessments by
August 8thf 1985. All permit applications for landfill and surface
impoundment facilities which are received after that date must
include an exposure assessment.
The Act provides that a health assessment be conducted when-
ever EPA or an authorized State judges that a landfill or surface
impoundment may pose a substantial health risk. This assessment
would be performed by the Agency for Toxic Substances and Disease
Registry which is part of the Center for Disease Control.
In addition to these major new provisions, the Act establishes
permit application submittal deadlines and requires EPA and the
States to accelerate the permit issuance process. Specifically, all
existing land disposal permit applications must be submited by
November 8th, 1985 or the facility loses interim status and must
close. EPA and Authorized States have until November 1988 to issue
all land disposal permit applications. Existing incinerator facility
owners and operators have until November 1986 to submit their permit
applications. If they fail to meet this deadline, they lose their
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interim status in November of 1989. That is also the date the Act
establishes for EPA and the States to complete issuance of all
incinerator permits. The remaining facility owners and operators
have until November, 1988 to submit their applications. Failure
to meet this deadline will result in loss of interim status for
these facilities in November of 1992. That is also the date the
Act establishes for EPA and the States to complete issuance of
these permits.
Obviously the new provisions of the Act have an immediate
impact on current Federal and State permitting activities. For
example, in response to the new legislative timetable, we will
accelerate the mailing of permit application request letters in
order to complete all land disposal call ins by May of 1985. We
will continue our current practice of conducting joint inspection
and permit writer site visits within 90 days of the permit applica-
tion request. These visits will be used to assist facilities to
understand the new requirements as well as to offer advice on those
application requirements that haven't changed.
For those permit applications currently being processed, we,
and authorized states, will begin immediately to apply the new
provisions. Guidance documents covering the new requirements are
currently being developed. I anticipate that draft guidance on
the double liner and corrective action requirements will be avail-
able for public review and comment within a month and in final
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form by March. In the meantime, all applicants will be contacted
to determine if they have any closed or unregulated solid waste
management units at their facility. Permit processing will continue
while investigations are conducted to determine if a release has or
is occurring at the facility.
Our permitting priorities will remain largely unchanged. We
will continue to emphasize the permitting of land disposal and
incinerator facilities. Likewise, the issuance of permits to new
facilities that provide treatment alternatives to land disposal will
be a top priority. The Act provides new permitting authority in
this area. Research, development and demonstration permits may now
be issued to any hazardous waste treatment facility which proposes
to use an innovative or experimental technology even though permit
standards have not been published for that technology. Further,
we now have the authority to modify or waive any permit application
and issuance requirements except for those governing public partici-
pation and financial responsibility. This authority, coupled with
the banning of certain wastes from land disposal will provide a
strong incentive to spur the development of new treatment
technology.
The final point I would like to make is that the provisions
of the Act go into effect simultaneously in Authorized States and in
States where EPA runs the program. EPA will therefore initially be
required to implement the new provisions in Authorized States. This
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creates a situation where EPA and the Authorized State will need to
work very closely together and to jointly issue facility permits.
That is, the State will issue the portion of the permit that it is
authorized for and EPA will issue the remaining portion of the
permit.
In conclusion, over the next few months EPA will — (1) issue
the guidance necessary to interpret the new statutory provisions
so as to enable the permit program to sustain its current momentum;
(2) establish a joint permitting relationship with each State
hazardous waste program that will enable permit processing and issu-
ance in a timely manner; and (3) establish, in a broader sense, a
relationship with the States that will lead to cooperative imple-
mentation of the new requirements and expedite the process of
authorizing States for the new statutory provisions.
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SMALL QUANTITY GENERATORS AND DELISTING
Eileen Claussen*
THE RCRA REAUTHORIZATION ACT GREATLY INCREASES THE NUMBER OF FIRMS
THAT WILL BE REGULATED UNDER THE HAZARDOUS WASTE RULES. UNDER
THE FEDERAL RCRA REGULATIONS ISSUED IN 1980, ONLY THOSE WHO GENER-
ATED OVER 1000 KILOGRAMS OR 2200 POUNDS PER MONTH OF MOST
HAZARDOUS WASTES WERE REGULATED AS HAZARDOUS WASTE GENERATORS.
WE ESTIMATE THAT THERE ARE APPROXIMATELY 15,000 GENERATORS THAT
FALL WITHIN THIS CATEGORY. THE NEW BILL, HOWEVER, REQUIRES THAT
WE REGULATE ALL THOSE WHO GENERATE OVER 100 KILOGRAMS OR 220 POUNDS
PER MONTH. 100 KILOGRAMS IS ROUGHLY HALF OF A 55 GALLON DRUM.
WE BELIEVE THESE NEW REQUIREMENTS WILL INCREASE THE NUMBER OF
FEDERALLY REGULATED HAZARDOUS WASTE GENERATORS BY 100 TO 130 THOU-
SAND. WHO ARE THESE SMALL QUANTITY GENERATORS OF HAZARDOUS WASTE?
A SURVEY WE RECENTLY COMPLETED SUGGESTS THAT MORE THAN HALF OF
THESE SMALL QUANTITY GENERATORS FALL INTO FIVE INDUSTRY CATEGORIES:
VEHICLE MAINTENANCE, METAL MANUFACTURING AND FINISHING, PRINT-
ING, PHOTOGRAPHY, AND LAUNDRIES AND DRY CLEANING. OTHER INDUSTRY
GROUPS THAT WILL HAVE A SUBSTANTIAL NUMBER OF SMALL QUANTITY GENER-
ATORS INCLUDE WOOD PRESERVING, ANALYTICAL AND CLINICAL LABORATOR-
IES, CONSTRUCTION AND PESTICIDE APPLICATORS.
WHAT NEW REQUIREMENTS WILL THESE FIRMS BE FACING IN THE NEAR
FUTURE? THE NEW ACT IS VERY SPECIFIC IN WHAT IT REQUIRES. BEGIN-
NING IN AUGUST OF 1985, ALL THOSE WHO GENERATE BETWEEN 100 KILOGRAMS
AND 1000 KILOGRAMS PER MONTH MUST COMPLETE PARTS OF THE UNIFORM
NATIONAL MANIFEST WHEN THEY SHIP WASTES OFF THEIR PREMISES FOR
•Director, Characterization & Assessment Division, Office of Solid
Waste, U.S. Environmental Protection Agency.
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2
STORAGE, TREATMENT, OR DISPOSAL. THE INFORMATION THAT MUST BE
PROVIDED ON THE MANIFEST FORM INCLUDES THE NAME AND ADDRESS OF
THE GENERATOR, THE DEPARTMENT OF TRANSPORTATION DESCRIPTION OF
THE WASTE, THE NUMBER AND TYPE OF CONTAINERS, THE QUANTITY OF
WASTE, AND THE NAME AND ADDRESS OF THE FACILITY TO WHICH THE WASTE
IS BEING SHIPPED.
THE REQUIREMENT THAT I HAVE JUST OUTLINED COVERS THE PERIOD BETWEEN
AUGUST OF 1985 AND APRIL OF 1986. BY MARCH 31, 1986, EPA IS RE-
QUIRED TO PUT OUT COMPREHENSIVE REGULATIONS PROTECTING HUMAN HEALTH
AND ENVIRONMENT FOR SMALL QUANTITY GENERATORS PRODUCING 100 KILO-
GRAMS PER MONTH OR MORE OF HAZARDOUS WASTE. AT A MINIMUM, THESE
STANDARDS MUST REQUIRE THAT ALL TREATMENT, STORAGE, AND DISPOSAL
OF SMALL QUANTITY GENERATOR WASTE OCCUR AT A REGULATED HAZARDOUS
WASTE FACILITY, AND THAT SMALL QUANTITY GENERATORS USE THE UNIFORM
NATIONAL MANIFEST WHEN WASTE IS SHIPPED OFF THEIR SITE.
AT THE PRESENT TIME, 14 STATES REQUIRE SMALL QUANTITY GENERATORS
OF OVER 100 KILOGRAMS OF WASTE PER MONTH TO MANIFEST THEIR WASTES,
AND 20 STATES REQUIRE DISPOSAL OF SMALL QUANTITY GENERATOR WASTE
IN A LICENSED HAZARDOUS WASTE FACILITY. AS A RESULT OF THE NEW ACT,
A GREAT MANY ADDITIONAL FIRMS WILL HAVE NEW REQUIREMENTS TO MEET,
AND WE FEEL IT IS IMPERATIVE TO PROVIDE INFORMATION TO THIS NEW
UNIVERSE OF REGULATED FIRMS.
WE PLAN TO WORK WITH REPRESENTATIVES OF THE EPA REGIONAL OFFICES,
STATE AND LOCAL AGENCIES, AND WITH TRADE AND PROFESSIONAL ASSO-
CIATIONS THAT REPRESENT SMALL QUANTITY GENERATORS TO DEVELOP PRO-
GRAMS TO EDUCATE AND ASSIST NEWLY REGULATED FIRMS. WE PLAN TO
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3
DEVELOP MATERIAL TO EXPLAIN WHAT THE NEW REQUIREMENTS ARE. WE
EXPECT TO DISTRIBUTE THIS INFORMATION THROUGH THE STATES, TRADE
GROUPS AND PERHAPS EVEN BY DIRECT MAIL. ALONG WITH THESE ACTIVI-
TIES, WE'LL BE DEVELOPING RULES TO MEET THE MARCH 31, 1986 DEADLINE
AND HOPE TO PROPOSE REGULATIONS IN THE FEDERAL REGISTER THIS SUMMER.
IN ADDITION TO GREATLY INCREASING THE NUMBER OF FIRMS AND FACILITIES
THAT WILL BE REGULATED UNDER THE HAZARDOUS WASTE RULES, THE
REAUTHORIZATION ALSO REQUIRES THAT WE EXPAND THE KINDS OF WASTES
INCLUDED IN THE REGULATORY SYSTEM. THE AGENCY IS SPECIFICALLY
REQUIRED TO MAKE DECISIONS ON 18 NEW INDUSTRY SEGMENTS OVER THE
NEXT 15 MONTHS, AND IS ALSO REQUIRED TO DEVELOP NEW CHARACTERIS-
TICS OF HAZARDOUS WASTE AS APPROPRIATE.
OF EQUAL SIGNIFICANCE ARE THE NEW REQUIREMENTS FOR DELISTINGS.
UNDER THE CURRENT RULES, MEMBERS OF THE REGULATED COMMUNITY CAN
PETITION THE AGENCY AND INDICATE THAT THE WASTE THEY PRODUCE DOES
NOT MEET ANY OF THE CRITERIA UNDER WHICH THE WASTE WAS LISTED AND
THEREFORE SHOULD NOT BE REGULATED AS A HAZARDOUS WASTE. THE NEW
AMENDMENTS CHANGE THIS STANDARD. THE PETITIONER MUST NOW PROVIDE,
AND THE AGENCY MUST NOW CONSIDER, INFORMATION ON THE PRESENCE
OF ADDITIONAL CONSTITUENTS THAT COULD RENDER THE WASTE HAZARDOUS.
THE DELISTING TEST, THEN, BECOMES TWO-PRONGED. THE AGENCY MUST
CONSIDER BOTH THE FACTORS FOR WHICH THE WASTE WAS LISTED, AND
THE FACTORS AND CONSTITUENTS OTHER THAN THOSE FOR WHICH THE WASTE
WAS LISTED IF WE HAVE A REASONABLE BASIS TO BELIEVE THAT THESE
ADDITIONAL CONSTITUENTS COULD CAUSE THE WASTE TO BE HAZARDOUS.
TO SATISFY THIS TEST, THE PETITIONER MUST SUBMIT SUFFICIENT INFOR-
MATION TO THE AGENCY SO THAT WE CAN MAKE THE DETERMINATION AS TO
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4
WHETHER THERE IS A REASONABLE BASIS TO BELIEVE THAT OTHER CONSTITU-
ENTS MAY BE PRESENT IN SIGNIFICANT CONCENTRATIONS IN THE WASTE.
THERE ARE SEVERAL OTHER VERY IMPORTANT PROVISIONS IN THE AMENDMENTS
THAT DEAL WITH DELISTING. HISTORICALLY, EPA HAS GRANTED WHAT WE
CALL "TEMPORARY DELISTINGS" THAT WERE IMMEDIATELY EFFECTIVE AND
ALLOWED FOR PUBLIC COMMENT AT THE SAME TIME. THE NEW AMENDMENTS
REQUIRE THAT WE GO THROUGH NOTICE AND COMMENT RULEMAKINGS, WHICH
MEANS WE WILL PROPOSE, RECEIVE, AND EVALUATE PUBLIC COMMENT, AND
THEN GO THROUGH A FINAL RULEMAKING. TO THE EXTENT POSSIBLE, WE
ARE REQUIRED TO PROPOSE DECISIONS WITHIN 12 MONTHS OF RECEIVING
A COMPLETED PETITION, AND GRANT OR DENY A PETITION WITHIN 24 MONTHS.
PERHAPS THE MOST IMPORTANT PROVISION IN THE AMENDMENTS THAT DEALS
WITH DELISTING CONCERNS THE TEMPORARY DELISTING DECISIONS THAT
HAVE ALREADY BEEN MADE. WE HAVE ONLY UNTIL NOVEMBER 1986 TO PROPOSE
AND GO FINAL WITH THESE DETERMINATIONS CONSIDERING ADDITIONAL
CONSTITUENTS THAT MAY BE IN THE WASTE. IF THE AGENCY HAS NOT
MADE FINAL DETERMINATIONS WITHIN THIS PERIOD, THE TEMPORARY EXCLU-
SIONS ALREADY GRANTED ARE RENDERED VOID, AND THE WASTES MUST BE
MANAGED AS HAZARDOUS WASTES. THERE ARE APPROXIMATELY 225 PETITIONS
IN THIS CATEGORY. WE HAVE ALREADY SENT LETTERS TO ALL PETITIONERS
THAT FALL WITHIN THIS AREA, AND HAVE RECEIVED ADDITIONAL INFORMATION
FROM SOME PETITIONERS. HOWEVER, 24 MONTHS IS NOT A VERY LONG
TIME FOR US TO MAKE DETERMINATIONS AND CONDUCT RULEMAKING ON SUCH
A LARGE QUANTITY OF DATA. WHAT THIS REALLY MEANS IS THAT WE WILL
PROCESS PETITIONS AS WE RECEIVE COMPLETE INFORMATION, AND THAT
NOT ALL PETITIONS WILL BE HANDLED IN THE TIME PERIOD. FURTHER,
WE HAVE MADE A DECISION TO HANDLE THESE PETITIONS ON A PRIORITY
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5
BASIS; AND OUR ACTIONS ON NEW PETITIONS WILL SLOW CONSIDERABLY.
WE PLAN TO HOLD A MEETING FOR PETITIONERS IN THE NEAR FUTURE TO
EXPLAIN OUR PLANS IN THE DELISTING AREA FOR THE NEXT 2 YEARS, AND
TO ANSWER ANY QUESTIONS ON HOW WE EXPECT TO MAKE DETERMINATIONS
BASED ON ADDITIONAL INFORMATION.
V.
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LEAKING UNDERGROUND STORAGE TANKS
John P. Lehman*
In this last segment of our RCRA public briefing, I will
tell you about new controls on leaking underground storage
tanks (or LUST).
Last but not LUST, so to speak.
The LUST program breaks new ground in that, for the first
time, the RCRA law applies to storage of products as well as
wastes. Also, the LUST program can be considered a mini-RCRA
program in its own right, with authorities for:
o a massive tank registration program,
o Federal technical standards for new and existing
tanks,
o State LUST programs and grants,
o Federal inspection and enforcement, and
o several studies and Reports to Congress.
Problem
What's the problem here, you may ask. The legislative
history states that there are over two million underground
storage tanks in the United States that contain hazardous
substances or gasoline. An estimated 100,000 tanks are
presently leaking and another 350,000 are expected to leak
in the next five years. EPA recently proposed to list as
Superfund sites 19 leaking underground tank facilities in
"Director, Waste Management & Economics Division, Office of Solid
Waste, U.S. Environmental Protection Agency.
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the South Bay area of San Francisco. Similar situations
probably exist elsewhere. Congress concluded that this
problem has become of national significance and requires
Federal action.
Program scope
Let's first talk about what is included in the new
LUST program and what isn't.
The LUST program has a broad scope. It regulates all
petroleum products (including crude oil) and all substances
defined as hazardous under the Superfund law that are stored
in underground tanks. The term "underground storage tank"
includes any tank with ten percent or more of its volume
below ground, included in the volume are pipes attached to
the tank. It is possible, then, for an above ground tank to
be regulated if it has extensive underground piping.
Excluded from the LUST program are:
o tanks holding hazardous waste (because these are
regulated elsewhere),
o farm and residential tanks less than 1100 gallons
storing motor fuel.
o on-site heating oil storage tanks,
o septic tanks,
o pipelines,
o flow through process tanks,
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o
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-3-
sumps and surface impoundments, and
several other types of underground systems.
Interim Prohibition
The statute imposes a three-part Interim prohibition on new
tanks that goes into effect 180 days after enactment. After
May 7, 1985, no person may install an underground storage tank
unless:
o it will prevent releases due to corrosion or
structural failure for the life of the tank,
o it is cathodically protected against corrosion,
constructed of non-corrosive material, steel clad
with non-corrosive material, or its equivalent, and
o the materials of the tank (or liner) are compatible
with stored substances.
The cathodic protection provision does not apply where the soil
resistivity is 12,000 ohm/cm or more.
EPA will issue interpretive guidance on this prohibition
as soon as possible. Obviously, it will have a significant
effect on tank manufacturers, tank installers, and their cus-
tomers. Also, it is the first LUST provision subject to Federal
enforcement. The maximum penalty for violating this provision
is $10,000 per day per tank.
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Notification
The statute calls for notification and registration of
underground storage tanks to State or local agencies. The
notification program will affect several million tank owners.
It will work like this:
o By May 1985, State Governors will designate
the State or local agency that will receive
the notifications.
o By November 1985, EPA will prescribe the form
of the notice.
o By May 1986, owners of existjng underground
storage tanks must for each tank notify the
State or local agency of its:
age
- size
type
location
- uses.
o By May 1986, owners of underground storage tanks
taken out of operation after January 1, 1974, but not removed
from the ground, must for each tank, notify the State or local
agency of its:
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- age and date when taken out of operation,
size,
type,
- location, and
type and quantity of substance left in the tank.
After May 1986, owners of new underground storage tanks
must similarly notify the State or local agency within 30 days
after its installation.
o 30 days after EPA prescribes the notification form
(and for 18 months thereafter) any person who deposits
regulated substances in an underground storage tank
must notify the tank owner of the LUST notification
requirement.
Thus, the notification program requires actions by both
distributors of regulated substances and owners of new and
existing underground storage tanks, and tanks taken out of
operation within the last ten years.
Regulatory Program
The statute requires EPA to develop and promulgate new
tank performance standards and standards concerning release
detection, prevention, and corrective action applicable to
all tanks. Also required are related studies and reports
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to Congress. The schedule for these rules and reports varies
for petroleum and hazardous chemicals, as follows:
Schedule
Hazardous
Petroleum Chemicals
1. New Tank Standards 27 mos. 33 mos.
2. Leak Detection, Prevention
and Corrective Action Rules 27 mos. 45 mos.
3. Study and Report to Congress 12 mos. 36 mos.
The statute specifies that the release detection, prevention,
and correction regulations must require:
o a release detection method,
o recordkeeping for these methods,
o reporting of leaks and corrective action taken,
o corrective action for releases,
o proper closure of tanks, and
o evidence of financial responsibility for taking
corrective action and compensating third parties
for injury or damages from sudden or nonsudden
releases.
The law allows States to substitute corrective action and
compensation programs financed by a fee on tank owners and
operators. Either way, we suspect the leak cleanup requirements
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will be one of the most significant costs imposed by the
new law.
State Programs
Congress made clear its intent that the LUST program is
to be conducted by the States. The legislative history notes
the progress made in several States with existing LUST programs.
The statute is designed to avoid interfering with developing
State programs. Congress wants the States to press ahead.
States or local agencies will receive the notifications described
earlier. States may apply for LUST program authorization 30
months after enactment. The programs may cover petroleum tanks
or hazardous substance tanks or both. State programs must
include all the regulatory elements of the Federal program and
provide for adequate enforcement.
As an inducement for action, the statute allows state
LUST programs that are less stringent than the Federal program
to be authorized if States act quickly. In no case, however,
can State programs be less stringent than Federal requirements
for corrective action, financial responsibility, and new tanks.
Inspections and Enforcement
The statute provides that Federal and State personnel may:
o request pertinent information,
o inspect and sample tanks, and
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o conduct monitoring and testing of tanks and
surrounding soils, air, surface water, and
ground water.
Federal enforcement is also provided for. EPA may issue
compliance orders for any violation of the LUST statute or
regulations. Offenders are subject to civil penalties of up
to $10,000 per day per tank. Criminal penalties are not
authorized.
Summary
In summary, then, Congress has put forward a major program
to control leaking underground storage tanks. Both EPA and the
States are heavily involved. The program will affect several
million tank owners, tank manufacturers and installers, and the
distributors of petroleum and hazardous substances. The first
statutory provision (the interim prohibition on installing new
bare tanks) goes into effect automatically on May 7, 1985.
Many more deadlines follow in rapid succession. We will work
with everyone involved to develop the best possible program.
We will need your help. Our ultimate goal will be to detect,
prevent, and control leaks from underground storage tanks.
Thanks very much.
U.S. Environmental Protection Agency
Library, Room 2404 FM-?11-A
401 M Street, S.W,
Washington. DC 20460
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