United States      . Solid Waste and    EPA/530-SW-91-062G
              Environmental Protection  Emergency Response      August 1991
              Agency          (OS-343)
«CDA     RCRA Permit
O tr A
              Compendium
              Volume 7
              9460.1980-9482.1990

              Transporter Standards (Part 263)
              • Manifests
              • Recordkeeping
              Treatment, Storage & Disposal Facilities
              (TSDF's) (Parts 264 & 265)
              • Standards
              • Preparedness & Prevention
              • Contingency Plan
              • Manifests/Recordkeeping
              • Closure/Post Closure
              • Financial Responsibility
              TSDF Technical Requirements
              (Parts 264 & 265)
              • Groundwater Standards
              • Management of Containers

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DISCLAIMER

The compilation of documents  in this Compendium, as well
as the policies, procedures and interpretations outlined
in the documents themselves,  is intended solely for the
guidance  of   employees  of  the   U.S.   Environmental
Protection Agency.  This compilation may not include all
documents discussing Agency views on particular subjects.
In addition,  these documents  are not intended and cannot
be  relied upon to create any  rights, substantive  or
procedural, enforceable by any party in litigation with
the  United  States.    The   views  expressed  in  these
documents do not necessarily reflect the current position
of  the  Agency, and EPA reserves  the  right to  act  at
variance with these views or to change them at any time
without public notice.

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Transporter Standards (Part 263)
                                   ATKl/l 112/10 sin

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9461 - GENERAL
STANDARDS
Part 263 Subpart A
                  ATKl/1104/3kp

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                                                             9461.1983(01)
                       RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                         JANUARY 83
   QUESTIONS/ANSWERS - RCRA           !

|(  Question:      Can a transporter consolidate manifested shignents of hazardous
                  waste at a transfer facility by transferring wastes in drums
                  to a tank truck for bull: delivery to a TSDF?  All of the
                  drums contain wastes with the same DOT shipping description.
                                                                  /
   Answer:        If die transporter were canbininj waste with different DOT
                  shipping descriptions into a single container,  trte transporter
                  would be mixing wastas and must conply with the Part 262
                  regulations.   Since in this instance no fixing  of different
                  DOT wasce types occurs,  there is ro r^uir^ynont fir a .*..-*•
                  nanifest.  (The preamble to tne Dec. 31,  19dO,  interim final
                  rule on storaje by transporters at transfer facilities solicited.
                  Garments on whether regulatory controls over the consolidation
                  of shipnents  and mixinj  of hazardous waste  by transporters is
                  '.-•••      .).   If the containers are at^ty accorcin-j  to section
                    ..,,  t:ivy are not subject to further RCRA regulations.
                  Source:     Carolyn  Barley,  Rolf  Hill, and Claire Melty
                  Research:   Irene Horner

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                                                    9461.1985(01)
 September  19,  1985
Mr. G. Thomas Manthey
Operations Manager
G W Inc.
P. 0. Box 379
Cedarburg, Wisconsin   53012

Dear Mr. Manthey:

     This is in response to your letter of August 30, 1985, which
concerned the bulking  and consolidating of compatible wastes with
different EPA hazardous waste codes.  We recognize that
transporters sometimes pick up waste from several generators in
order to send full loads to treatment, storage, and disposal
facilities.  These transporters also may consolidate different
bulk waste shipments in a tank truck or pump the contents of
drums containing different EPA waste codes into a single tank
truck.  You asked whether this method of handling hazardous waste
constitutes treatment.  It is our interpretation that incidental
changes in the characteristics of the waste that occur from
consolidating shipments going to treatment, storage, and disposal
facilities for handling under RCRA regulations would not be
considered treatment.

     Treatment as defined in §260.10 "means any method,
technique, or process...designed to change the physical,
chemical, or biological character or composition of any hazardous
waste ... to render such waste non-hazardous, or less hazardous;
safer to transport, store, or dispose of...."  Mixing listed
waste does not render  the wastes non-hazardous (40 CFR 261.3(c)
and (d)).  Mixing hazardous waste that is identified in 40 CFR
261 Subpart C on the basis of characteristics renders the waste
non-hazardous if the waste no longer exhibits those
characteristics after  mixing (40 CFR 261.3(d)(1)).

     Although characteristic wastes mixed by transporters may
exhibit fewer hazards, this incidental reduction of hazard is not
considered treatment if the wastes are still sent to treatment,
storage, or disposal facilities.  The basis of this
interpretation is found in the definition of treatment in Section
1004 of the Hazardous  and Solid Waste Amendments, which states:
"...'treatment'...includes any activity or processing designed to
chcinge the physical form or chemical composition of hazardous
waste so as to render  it nonhazardous."  The type of
transportation you describe does not appear to be designed to
        This has been retyped from the original document.

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                               -2-

render the waste nonhazardous.  This is the basis of our
interpretation that the bulking is not regulated as treatment
under RCRA.

     You should be aware that the blending of wastes by
transporters is addressed by two other regulations.  In
particular, §263.10(c)(2) requires transporters to comply with
generator requirements  (e.g., issue a new manifest) when
transporters combine wastes with different Department of
Transportation (DOT) shipping descriptions in the same container.
This occurs when combining two shipments of RCRA ignitable waste,
when one is a DOT combustible and the other is a DOT flammable.
Combining different RCRA waste streams that are both classified
by DOT as "hazardous waste solid, n.o.s." would not require a new
manifest.  You can obtain the proper DOT shipping descriptions in
49 CFR 172.101 or contact DOT's Hazardous Materials Standards
Division at (202) 426-2075.

     The policy of bulking and consolidating waste shipments is
also addressed in the preamble to the December 31, 1980, Federal
Register on transfer facilities (45 FR 86966).  At transfer
facilities, "shipments may be consolidated into larger units or
shipments may be transferred to different vehicles for
redirecting or rerouting."  Transfer facilities can store
manifested waste shipments in DOT packages for up to 10 days
without complying with §264 or §265 storage requirements, as
described in 40 CFR 263.12.  "These amendments relieve
transporters who own or operate a transfer facility of the
necessity of obtaining a RCRA permit and of complying with the
substantive requirements for storage for the holding of wastes
which is incidental to normal transportation practices (45 FR
86966)."  Furthermore, this preamble later states, "These
amendments do not place any new requirements on transporters
repackaging waste from one container to another (e.g.,
consolidation of wastes from smaller to larger containers) or on
transporters who mix hazardous wastes at transfer facilities (45
FR 86967)."  In other words, this issue concerns storage, not
treatment.

     The transfer facility preamble also requested comments on
whether transporters need to have a regulation similar to §265.17
for handling ignitable, reactive, or incompatible wastes to
prevent ignition or reaction.  Prudent waste management practices
would probably include voluntary compliance with many of these
standards.
        This has been retyped from the original document.

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                               -3-

     If you have any other questions about these issues, please
contact Irene Horner of my staff at (202) 382-2550.


                                   Sincerely yours,
                                   Marcia Williams
                                   Director
                                   Office of Solid Waste (WH-562)
        This has been retyped from the original document.

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                                                               3461.1966(01)


                              APR I 0 1986
Ms. Virginia Eastwood
Director, Hazardous Waste Division
St. Joseph Motor Lines
5724 New Peachtree Road
Atlanta, Georaia  30341

Dear Ms. Eastwood:

     i am responding to your letter of inquiry dated March 31, L986.

     As you stated correctly in your letter, the "10 day" requlation
for storage in transit of hazardous waste does not apply to the
period of time that such waste is actually in transit between the
pick-up and delivery points.

     This interpretation is consistent with the appropriate
regulatory provision contained in 40 CFR Part 263 - Standards
Applicable To Transporters of Hazardous Waste.  More specifically
40 CFR 263.12 states:  "A transporter who stores manifested
shipments of hazardous waste in containers meeting the requirement*
of S262.30 at a transfer facility for a period of ten days or less
is not subject to regulation under Parts 270, 264, and 265 of this
chapter with respect to the storage of those wastes.*

     Thus, the "10 day" regulation only relates to storage at a
transfer facility.

     Furthermore, "transfer facility" is defined in 40 CFR 260.10
as follows:  "Transfer Facility means any transportation related
             facility including loading docks, parking areas,
             storage areas and other similar areas where shipments
             of hazardous waste are held during the normal course
             of transportation".

     I hope that these regulatory citation's provide you with the
information wfcich you requested.  You must, however, remember
that individual State hazardous waste regulations may be more
stringent than these Federal requirements.

                                   Respectfully,
                                   Bernard J.  Stoll
                                   Program Manager
                                   Financial  Responsibility and
                                     Assessment  Branch

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                                                        9461.1987(01)



                            MAY I   i9£7
Honorable Jesse A. Helms
United States Senator
P.O. Box 2944
Hickory, North Carolina  28603

Dear Senator Helms*

     Thank you for your April 9, 1987, letter on behalf of
your constituent, Mr. Murl E. tfhitener. President of S t W
Chemicals, Inc., who described his firm's difficulties in
iiecuring Product Liability Insurance coverage.

     Financial responsibility regulations issued pursuant to
the Resource Conservation and Recovery Act (RCRA) include
requirements for liability coverage for third-party bodily
injury and property damage.  These requirements are effective
upon hazardous waste treatment, storage, and disposal faciliti**.
we have confirmed, however, that S 4 W Chemicals it a transporter
of hazardous wastes and, therefore, is not subject to these
liability coverage requirements.

     S fc w Chemicals, as a chemical transporter, is required
to maintain liability insurance pursuant to the Motor Carrier
Act (MCA).  Transporters of hazardous substances must carry
liability coverage of $1 million or $5 million, depending on
the substance transported, for each vehicle.  There are a
variety of financial instruments, other than insurance, that
may be relied upon to comply with the MCA liability coverage
requirements.  In addition to the brief explanatory materials
attached, you might wish to contact Mr. Neil Thomas or
Mr. Joseph Fulnecky at the Federal Highway Administration
(202/366-2990) for more information about the MCA requirements,
and how they apply to a firm like S 6 W Chemicals encountering
insurance coverage problems.                                     .

     He are aware of difficulties many hazardous waste manage-
ment facilities covered by the RCRA liability coverage require-
ments have experienced recently in securing ineurance.  From
our discussions with the insurance industry and our other
efforts to monitor trends in this area, the Environmental
Protection Agency (EPA) understands that liability insurance,

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in general, is beconing increasingly available and at a
lower coat than in the recent paat.  We hope the positive
trends that EPA has noted nay benefit S 4 W Chemicals in its
efforts to locate insurance.

     If I can be of any further assistance, please let ne
know.
                              Sincerely<
                                 Winston Porter
                              Assistant Administrator
WH-562/COTSWORTH/T.MCMANUS - 475-8818/sld/4-21-87/Control
Mot AL701323/Due Dates 4-27/CONTROLLED CORRESPONDENCE til

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                                                            9461.1987(03)
                                JU. 30
MEMORANDUM

SUBJECT i   Generation of Aids to navigation (ATOH)
           Batteries «nd RCRA Requirements

PRQMi      Hard* E. Williams, Director
           Office of Solid waste  (WR-562)

           Oene A. Lucero
           Office of Vast* Program* Enforcement (WH-527)

TO t        Kenneth D. Peigner, Chief
           Waste Management Branch (HW-112)
           EPA Region X
     This is in response to your June 30, 1987, •••orandoa in which
you requested clarification a* to now the RCIA rul«« apply to ATOM
batt«ri««.  Th« answers to your specific questions are as follows i

     1.    We agree with you that the entire battery is counted
           in weight calculations;

     2.    The points of waste generation are* as you suggested,
           each ATOM unit service area (either landbased or the
           tender vehicle).  Inch area is subject to the quantity
           determination of f2ttl.3» except when several areas are
           on one site; then the entire quantity of hacardous waste
           generated at the site is counted.

     3.    Tne location to which the spent batteries are taken
                 normally be a TBDP, provided the waste is received
                one or aore ATOBT units which generate greater
                100 kg/mo, of hazardous waste.  You should note,
           hovever, that 40 CPU 1263.12 provides that properly
           packaged and labeled hacardous waste containers nay
           be held for 10 days or less at a transfer facility
           without having to comply with Parts 264, 265, or 270.

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                               -2-
     4.    The satellite accumulation area provision* of  $262.34  (c)
           do not apply to the ATOM locations becauae they are
           not all on one site, but rather are each distinct
           • itea surrounded by water.

     S.    w« ballava that the battariai raaovad aftar tandar
           •arrlcing do raqulra manlfaating, aa wall aa thoaa
           ramoTad fro» land-baaad vahicla aarviclng.  Tha loca-
           tion whara a battary ia ramovad fro* aarvica ia the
           waate generation aita.  The generator auat aanifeat
           th« b«tt«rl«> to a TSDF provided they are not  a condi-
           tionally axeapt generator.  Aa indicated above, the
           batteriea a«y be held for up to 10 daya at a tranafar
           facility under (263.12.

     Pleaae fe«l free to contact Michael Petruaka at 475-6676 If
you have any further queatlona.


ccs  waste Management Division Directora. Regiona X - IX
     Solid Waste Branch Chiefs, Regions I - X


WH-562B/MPetrusKa/bc/7/15/87/475-6676/R242/RSCC-8701

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                                                                9461.1987(04)
             RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                JULY 87
 2.   Domestic Sewage Exclusion

     A  RCRA Hazardous waste is teanspoeted by truck accompanied by Uniform
 Hazardous Waste Manifest to a publicly-owned treatment works (POTW).   Dees
 the  domestic sewage exclusion apply to this hazardous waste if  it mixes with
 domestic sewage prior to treatment?  Is the sludge generated from treating
 the  3CRA hazardous waste and the domestic sewage a hazardous waste due to the
 "Derived-Fran Rule" (40 CFR 261.3(c) and (d))?

   The  Domestic Sewage Exclusion ("the exclusion" or "the exemption")
   found in RCRA Section 1004(27) and codified at 40 CFR 261.4(a)(l)(ii)
   applies to "domestic sewage and any mixture of domestic sewage and
   other wastes that pass through a sewer system to publicly-owned
   treatment works for treatment.   'Domestic sewage1 means untreated
   sanitary wastes that pass through a sewer system" (emphasis added).
   These wastes are not considered to be solid wastes and therefore cannot
   be classified as a RCRA hazardous waste.  The exemption does not extend
   to wastes which are transported to the POTW by way of truck, »ail,  OF
   dedicated pipe and which do not mix with domestic sewage.  The POTW
   would be operating under a NPDES permit and is subject to regulations
   under the RCRA permit-by-rule provisions  (see 40 CFR 270.60(c)).

   Even if the hazardous wastes which were transported from off-site were
   mixed with the influent domestic sewage before any treatment occurred,
   the exclusion would not apply.  As discussed in the May 19,  1980
   Federal Register (45 FR 33097), EPA has interpreted that the  intent of
   Congress was that the exemption extend only to wastes which enter  the
   system at or near the point of generation and actually "mix with
   sanitary wastes in a sewer system leading to a POTW"  (emphasis added).

   As discussed in the June 22, 1987 Federal Register  (52 FR 23478),  if
   any listed RCRA hazardous wastes denoted  in 40 CFR 261 Subpart D are
   manifested to a PCTW, the resultant treatment sludge would  retain  the
   listing per the "Derived-Fran Rule" (see  40 CFR 261.3(c)(2)(i)>.   If
   the waste is characteristically hazardous under 40 CFR 261 Subpart C,
   trie sludge would be considered a hazardous waste  only if  the  sludge
   exhibited any one of the characteristics of hazardous waste.

Source:     Dov Weicman       (202) 382-7700
Research:  Deborah McKie

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                                              9461.1987(05)
                   SEPTEMBER  87
DO" Manifest  Requirements
     When filling out a  hazardous waste manifest,  -nust
the  generator  include  the  EPA  hazardous  waste
identification  number and hazardous  substance reportable
quantity under  the Department  of Transportation  (DOT)
shipping description?

     In the  November 21, 1986 Federal Register  (51  FR_
     42175),  DOT's  Research and  Special  Programs
     Administration  (RSPA)  issued  final hazardous
     materials  regulations  which incorporated  CERCLA
     hazardous  substances as  DOT  hazardous materials.
     In a  later  Federal Register dated  February 17, 1987
     (32 FR_  4824), the RSPA published  corrections to the
     November  21,  1986  regulations.   Together, these
     regulations  amended  49 CFR  Parts 171 and  172  by
     placing additional  information requirements  on
    "'shippers of hazardous  waste (i.e.,  generators).
     Section 172.02  of  the  new DOT  regulations requires
     the shipper  (hazardous waste generator) to identify
     EPA waste  streams  by the  EPA identification number
     and for wastes  which exhibit an  EPA characteristic
     of ignitability,  corrosivity,  reactivity  or  EP
     toxicity,  by  the  letters  "EPA" and  the  word
     "ignitability"  or "corrosivity" or "reactivity" or
     "EP toxicity", as appropriate.   Section 172.203 and
     Section 172.324  of  these  regulations  require the
     notation "RQ" on the shipping papers in association
     with  the proper  shipping description when a  package
     (i.e.,  container) contains a reportable quantity or
     nore  of hazardous  waste.   However,   the  new DOT
     regulations  do  not  require  the "numerical
     reportable  quantity" to  be  on the manifest (see
     Vovember 21,  1986 Federal Register (51 FR 42175)).

Source:   Paul  Mushovic   (202) 475-7736
Research:  Joe Vixon
                     -4-

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                                      9461.1988(01
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON, D.C. 20460
        ^                                               OFFICE OF
  3 I  ~^'~                                      SOLID WASTE AND EMERGENCY RESPC
Richard A.  Svanda,  P.E.
Director, Hazardous Waste Division
Minnesota Pollution control  Agency
520 Lafayette  Road
St. Paul, Minnesota  55155

Dear Mr. Svanda:

     This is in  response to  your July 20, 1988, letter to
Jeffery Denit, concerning regulation of hazardous waste
recyclers.

     The responses  to your questions are attached.  Please note
that the responses  address the Federal regulations for
generators  of  over  100 kilograms of hazardous waste, or 1
Kilogram of acute hazardous  waste.  Most of the generators that
responded to the July 1987 survey conducted by the EPA Small
Business Ombudsman, referenced in your letter, were actually
conditionally  exempt generators under 40 CFR Section 261.5.  As
you know, regulation of this conditionally exempt waste,
including regulation of recyclers who accept such waste, is a
State matter.

     Please contact Michael  Petruska at (202) 475-9888 if you
have any questions  on this response.
                                    Sincerely,
                                    Sylvia K. Lowrance
                                    Director
                                    Office of Solid Waste
Attachment

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                            ATTACHMENT

1.  Q:  Can incoming listed hazardous wastes be stored at [a
        recycling] site for up to ten days and then be moved [on
        the same site] to the recycling process, where recycling
        begins immediately?  What distinction is drawn between a
        transfer facility located on contiguous versus
        non-contiguous property in relation to the recycling
        operation?

    A:  The transfer facility provisions of 40 CFR Section 263.12
        apply to holding of waste in the normal course of
        transportation.  Arrival of the waste at the designated
        facility constitutes completion of the transportation
        phase, so the 10 day limit is not applicable at the
        recycling facility.  If waste is off-loaded from vehicles
        directly in recycling equipment at the facility, however,
        this off-loading area is not a storage facility.  Each
        recycling facility has to be evaluated on a case-by-case
        basis to determine whether storage is in fact occurring.

        The distinction which is drawn between a contiguous
        transfer facility and a non-contiguous one is best
        described by stating that the Section 263.12 regulation
        was promulgated to account for normal transportation
        practices.  A transporter who ships to a piece of
        property contiguous to a recycling facility has
        technically completed the transportation phase if no
        further "transportation" (as defined in
        Section 260.10—movement by air, rail, highway, or water)
        is to be conducted.  Thus, a piece of property contiguous
        to a recycling facility must meet the definition of a
        designated facility.  A piece of property that is nojt
        contiguous to the recycling facility technically could be
        a transfer facility provided further movement by air,
        highway, rail, or water will occur.  There is potential
        for a transporter to deliver hazardous waste to a site
        close to the recycling facility, and still qualify  for
        the transfer facility exemption; however, in an
        enforcement situation, this activity may not qualify  for
        the exemption, which was intended to cover situations of
        limited in-transit storage.


2.  Q:  Is this (Question #1) a transfer facility as defined  in
        Section 260.10?

    A:  As explained above, designated facilities cannot have
        transfer facilities on their property.  The  recycling
        facility may or may not need a RCRA storage  permit,
        depending on the factual situation  at  the  facility.

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                                -2-
3.  Q:  How should the definition of "storage"  be interpreted?
        Is there a specific time limit on storage for this
        situation?

    A:  The Agency has interpreted conveyance into a recycling
        unit as not regulated, while holding of hazardous waste
        for a matter of a few hours is a site-specific
        determination, and may or may not constitute storage.
        Each recycling facility that attempts to claim an
        exemption for their storage activities win have to be
        evaluated individually, and the owner or operator must
        maintain all supporting documentation under Section
        261.2(f).
4.  Q:  What has been the EPA's and other State's practice for
        addressing this issue for containerized hazardous wastes?

    A:  Based on discussions with four authorized States, three
        of four stated that any storage prior to recycling is
        regulated.  One stated that a recent policy was developed
        in which hazardous waste received from off-site and
        placed into the recycling unit by nightfall of the
        calendar day it was received at the facility would not be
        considered stored.
5.  Q:  Would such a facility be exempt from the hazardous waste
        permitting requirements (i.e., can the facility operate
        under transporter, transfer facility and generator
        requirements)?

    A:  Such a facility could not operate under transporter and
        transfer facility requirements, although they may qualify
        as a designated facility under Section 260.10 if they
        recycle without prior storage.  As explained above,
        however, holding of drums for a few hours may not be
        storage.  Further, the facility could be constructed so
        that the conveyance to the recycling unit is the only
        holding which occurs prior to recycling, so that there
        would be no RCRA storage area.


6.  Q:  If a hazardous waste storage permit is required, this
        type of operation will most likely not continue, and new
        prospective recycling operations will be discouraged from
        starting.  What other methods of encouraging recycling  of
        hazardous waste could you suggest?

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                                — "3 «.


    A:  EPA is currently evaluating how its regulatory structure
        affects recycling.  You should note that a number of
        exclusions (I.e..  Sections 261.2(e), 261.4(a)(6), (a)(7),
        (a)(8)), exemptions (i.e.. Section 261.6 (a)(3)), and
        variances (i.e. . Section 260.30) are available for
        recyclable materials.   We are considering whether
        additional such mechanisms should be established, and
        whether some broader mechanism, such as a special
        recycler permit (perhaps similar to the one created by
        Congress for used oil under RCRA Section 3014(d)) might
        be appropriate.

    You should be aware that a number of recycling facilities
that provide storage of hazardous waste on site prior to
recycling the waste have complained that their competitors are
circumventing the spirit of our regulations by recycling directly
from the transportation vehicle and not obtaining a RCRA storage
permit.  They have encouraged EPA to modify the regulations to
state that such practices constitute storage and should be fully
regulated under RCRA.

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                   STATES ENVIRONMENTAL PROTECTION AGENCY       9461.1989(01)
                             JAN 3   1989
MEMORANDUM


SUBJECT: Regulation of Hazardous Wast* Transfer Operations

FROM:    Sylvia K. Lovrance, Director
         Office of Solid Waste  (OS-300)

TO:      B. G. Constantelos, Director
         Waste Management Division (5H-12)
         Region V


    We have evaluated the issues raised in your October 31, and ">
November 9, 1988, memoranda regarding 'the need to regulate
containers transferring waste directly to incinerators, boilers,
or industrial furnaces.

    You expressed concern about the Agency's policy that trans-
port vehicles are not considered storage vessels when located
on-site for short periods during the transfer of hazardous waste
fuel directly to a combustion device.  Apparently, a number of
facilities have used this policy to avoid obtaining a storage
permit.  Your concern is that, without a feed storage tank to
enable continuous mixing and, if necessary, heating of hazardous
waste fuels, steady-state combustion conditions cannot be main-
tained.  You suggest that we include in the proposed boiler and
industrial furnace rules a provision requiring a fuel blending
and storage tank.

    We agree with you that a blending and feed storage tank can
be a useful approach to solving problems associated with
assessing a- uniform feed.  We are not sure, however, that a
blanding tank is needed in every case irrespective of the
unloading tine and properties of the waste fuel.  Moreover, the
trial burn should be used to determine if a facility can comply
with the emissions performance  standards without a feed storage
tank. Nonetheless, we will request comment in the proposed boiler
and industrial furnace rule on whether blending and storage tanks
should be required to ensure a maintain uniform feed and a steady
state operation of the waste combustion facility.

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                               - 2 -


    Notwithstanding where we end up on that issue, we encourage
you to establish-permit conditions as necessary to protect public
health and the environment using the omnibus authority of
Section 3005(c)(3) of RCRA.  Controls may be needed to address
the potential for spills, fires, and explosions during the
transfer operations.  Thus, it may be appropriate to apply the
storage facility standards to the transfer operation.  We will
discuss in the preamble to the boiler and industrial furnace rule
the use of the omnibus authority to address the hazards posed by
transfer operations.

    If you have questions or comments, your staff can contact
Mr. Dwight Hlusticlc at (202) 382-7926.


cc: Incinerator Permit Writers' Workgroup
    Dave Bussard
    Joe Carra
    Dev Barnes
    Carrie Wehling

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                                            9461.1989(02)
            RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                             APRIL  89
A. RCRA

  1. Generator Standards Applicable To Transporters

  Are transporters considered generators when they mix wastes of different DOT
  descriptions?

    No.   Transporters who mix wastes of different DOT descriptions are not
    considered generators of the waste, however/ they must comply with 40 CFR
    Part 262, "Standards Applicable to Generators of Hazardous Waste" (Section
    263.10(c)).  The transporter does take on some of the  responsibilities and
    duties of a generator when he mixes wastes that  are in his custody, including
    making sure  the wastes remain properly manifested in the manner required
    by Parts 262-263. When transporters combine similar wastes, this act does not
    "generate" a  new waste. It might, however, necessitate a new manifest or an
    amendment  to the manifest  when  the  act of  mixing  wastes changes the
    accuracy of the information on  the manifest, by altering the container types
    and/or volumes contained or by changing the chemical or physical nature of
    the waste, so that the DOT proper shipping name on the original manifest is
    no longer accurate. If a new manifest is necessary, previous manifests  must
    be attached to, and conveyed with, the new manifest.

 Source:        Emily Roth (202) 382-4777
 Research:     Joe Nixon  (202) 488-1487

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                     \ i £i ENVIRONMENTAL PROTECTION AGENCY           1989(03)
                  18 AUG  89
 William L. Bider
 Manager - Environmental Protection
 Trims World Airlines, Inc.
 P.O. BOX 20126
 Kansas city International Airport
 Kansas City, Missouri   64195

 Dear Mr. Bider:

      This letter is  in response to your  letter  of July 18,  1989.
 You ask if TWA's St.  Louis Airport facility  requires one or more
 EPA Identification numbers.  The  determination  in this case must
 be made by State and EPA Region personnel. However, we can provide
 you with a general  description  of  the relationship between the EPA
 10 number and a facility location,  or  "site"  requiring such  a
 number.

      Generators and transporters of hazardous waste must obtain an
 EPA identification number from the EPA Administrator before they
 treat,  store, dispose of, transport, or  offer for tranportation,
 hazardous waste (40 CFR Section 262.12).  The numbers are obtained
 by submitting a  notification form,  EPA  Form  8700-12,  to  the
 Administrator.  The numbers are issued to each generator on a by
 sit« basis.  Therefore, if TWA has  facilities in various locations,
 each facility, by site,  must have an EPA 10 number.

      The definition  of "on-site" as referenced  by you  in your
 letter  and as  found in 40 CFR 260.10,  may  be helpful in determining
 if TWA's  St.  Louis  Airport  facility  constitutes  one  or more
 "sites."  "'On-Site' means the same  or  geographically contiguous
 property which may be divided by public or  private right-of-way
 ..."    From your description it appears  that all of your airport
 facilities are on  a  single  property.    It is  unclear, however,
•whether there  are any rights-of-way to which the  public has access.
 If there are,  the entrance and  exit between the properties must be
 at a  cross-roads  intersection,  i.e.  vehicles may not carry

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            w..t.
    dictate a different result.
you
                         Sincerely,
                         Devereaux Barnes, Director
                         Characterization & Assessment
                           Division
                         Office of Solid Waste

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                                                   9461-1990(01)
X'
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                           JUN  7 1990


                                             SOLID WASTE AND EMERGENCY RESPONSE
 SUBJECT:            Transportation

 FROM:               Sylvia K. Lowra
                    Office of Solid

 TO:                 Robert L. Duprey,KDirector
                    Hazardous Waste Management Division
                    Region VIII


     Thank you  for your memorandum of February 26,  1990,  in which
 you describe a  situation of concern related to hazardous  waste
 transportation.   In the situation you describe (and described in
 the accompanying  letter from the State of Utah) a hazardous waste
 transporter appears to be transporting hazardous waste
 unnecessarily through numerous transporters to "buy" time in
 which to accumulate a quantity of hazardous waste sufficient to
 fill a tank truck.  The events as described raise the possibility
 that this chain of shipments is not consistent with a "normal
 course of transportation" as described in the Federal Register
 notice of December 31, 1980 (45FR.86966) .  Our response is based
 upon, and limited to, the facts as you have described them.

     In developing the hazardous waste transportation
 regulations, EPA  differentiated between the storage of hazardous
waste (requiring  the obtaining of a RCRA permit) and the  holding
of waste for short periods of time during the course of
transportation.   EPA specifically stated that transporters who
hold hazardous  wastes for a short period of time in the course of
transportation  should not be considered to be storing hazardous
wastes,  and should not be required to obtain a RCRA permit or
interim status  and comply with the standards of Parts 264 or 265.
EPA allows transporters to hold wastes at a transfer facility  in
the course of transportation for up to 10 days.  This regulatory
relief measure  applies to the holding of wastes which is
incidental to normal transportation practices.  If  the waste is
held for more than ten days at a particular location, a RCRA
permit is required, and the transporter must comply with  the
applicable storage standards and permit requirements.

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     Violations of the transportation regulations may be occuring
 in  situations where State or EPA Regional enforcement authorities
 determine that a transporter has .held waste at one location for
 longer than  10 days, or has held waste in a manner which is not
 consistent with the normal course of transportation.  Two
 examples of  activities which ordinarily would be inconsistent
 with the normal course of transportation are: (1)  waste not
 besing transported from a site at all, but rather, possession of
 the waste is changing from one transporter to another while the
 waste remains at one site, or, (2)  waste is routed to the same
 geographic location more than once during the course of
 transportation.

     Furthermore, the act of simply routing hazardous wastes to
 numerous transporters for extended periods of time may, at some
 point, no longer be consistent with the normal course of
 transportation.  EPA noted at the time of promulgation of the
 transfer facility requirements that the transportation industry
 had indicated that shipments of hazardous waste normally take no
 longer than  15 days, including both on the road time and
 incidental temporary holding.  While circumstances may
 occasionally justify periods significantly longer than 15 days,
 the 49-day chain identified in the documents from Utah strongly
 suggest that the intermediate purported transfer facilities were
 not holding the waste incident to the normal course of
 transportation.

     Of course, our interpretation of the situation you describe
 is based upon, and limited to, what you have documented in your
 letter, and does not mean that there cannot exist additional
 circumstances not described in your correspondence that would be
material to any determination of a violation.  We cannot discount
 the possibility that, sometimes, under particular circumstances,
 activities such as those described above may be consistent with
 the normal course of transportation.  The enforcement authority,
 either the State or EPA Region, must determine, based on the
 factual situation, whether the circumstances involved are  in
 keeping with a normal course of transportation.

     We are planning to consider the other question you raised
 (regarding re-manifesting of wastes received from multiple
 sources by transporters) as we discuss outstanding manifest
 issues as part of a project recently begun by a working group of
 states under an agreement between EPA and the National Governors'
Association.  This project will evaluate the current manifest
 system and provide input on potential improvements.  BPA staff
met in March of this year with the state manifest coordinators
group to kick off the project.  For information  on  this pro}*ot,
please contact Russ Brodie of the National Governor's Association
at (202)  624-5305.

     Thank you for bringing this transportation  situation  to By
attention.   If you have any questions regarding  this memorandum,
please have your staff contact Emily Roth, at FTS 382-4777.

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                                                        9461.1990(02)
        I          UNITED STATES ENVIRONMENTAL PROTECTION AGENCN
       ;                       WASHINGTON. D.C. 20460
                                       OCT30  1990
                                                          SOLID WAST. AND EMERGENCY

 MEMORANDUM


 SUBJECT:         Transfer Facility Regulation Interpretation
 FROM:            Sylvia Lowrance, Director.
                    Office of Soli&-Wasfe/'-/ Z/FLsf /
                                                     f-
 TO:                David Ullrich, Acting Director
                    Waste Management Division (5H-12)


       Thank you for your memorandum  of July 19, 1990,  requesting an interpretation of
 the regulations pertaining to "transfer facilities" in relation to designated facilities and
 permitted and interim status facilities.

       The first issue you raise concerns whether a permitted or interim status treatment
 and storage facility can function as a transfer facility and temporarily store hazardous
 waste destined for another facility (the designated facility)  for processing. The answer to
 this question depends on whether the transfer facility is also the "designated facility"
 indicated on the manifest A permitted or interim status facility that has not been
 designated on the manifest as the "designated facility" mav serve as a transfer facility for
 shipments, of waste awaiting further transportation to the designated facility.  The
 limiting conditions are the definition of "transfer facility," itself (Section 260.10) and the
 provision.', of Section 263.12, i.e., storage not to exceed 10  days, and containers must
 meet DOT requirements. A permitted or interim status treatment and storage facility
/that is the "designated facility" for a particular  shipment  of waste cannot function as a
 transfer facility with respect to that waste. "Designated facility" is defined in 260.10 as a
 hazardous waste treatment, storage, or disposal facility that is permitted or has interim
 status, that is regulated under 40 CFR 261.6(c)(2) or Subpart F of 40 CFR Part 266, or
 another facility allowed by the receiving State to accept such waste and that has been
 designated on the manifest by the generator pursuant to 40 CFR 262.20.  [See 55 FR
 2353, January 23, 1990 for recent EPA statement on the designated facility issue.]

       The term "transfer facility" is defined  in 40 CFR 260.10 as "any transportation
 related facility including loading docks, parking areas, storage areas and other similar
 areas where shipments of hazardous waste are held during the normal course of trans-
 portation." The  key part of this definition is the phrase  "during the normal course  of
 transportation."  Arrival of a manifested shipment of wiste at the  "designated facility"
 constitutes completion of the  transportation phase, suc»i  that the transfer  facility
 provisions will no longer apply. That is, the manifested  shipment  cannot be stored for
                                                                           Pruutd on

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 10 days or less under 40 CFR 263.12 once it arrives at the designated facility.  This issue
 is discussed in the attached letter dated August 31, 1988 from Sylvia Lowrance, Director
 of the Office of Solid Waste, to Richard Svanda, of the Minnesota Pollution Control
 Agency.

     The second issue you address is the consolidation of wastes by a transporter at a
 transfer facility.  Wastes are routinely combined at transfer facilities; often
 containerized waste is transferred to a tanker truck. However, you are correct that the
 December 31,1980 Federal Register as well as subsequent notices on the topic of
 transportation do not place any additional requirements on transporters that consolidate
 wastes at transfer facilities.

       There are no EPA Federal standards or requirements  that apply specifically to
 transfer facilities other than the storage time limitation of 10  days and  other provisions
 of 263.12. There have not been any new policy or guidance documents on the topic of
 transfer facilities since the regulations were promulgated.  However, you should note
 that transporters who store hazardous waste at transfer facilities must comply with all
 applicable requirements of the transporter regulations of Part 263 (e.g., Subpart C,
 Hazardous Waste discharges).

       Under certain circumstances,  transporters are required to comply with the
 requirements that apply to generators of hazardous waste. A transporter  who mixes
 hazardous wastes of different Department of Transportation (DOT) shipping
 descriptions by consolidating them into a single container must comply  with 40 CFR Part
 262, Standards Applicable  to Generators of Hazardous Waste (40 CFR 263.10(c)(2)).
 The Agency does not intend to encourage transporters to combine wastes of different
 DOT descriptions.  On the contrary, the  imposition of the generator requirements
 should provide sufficient cause for the transporter  to avoid such waste combinations
 whenever possible.  The  transporter  who mixes hazardous wastes of different DOT
 descriptions is obligated to remanifest the waste.  For example, a change  in the DOT
 "proper shipping name" or hazard class would require the completion of a new manifest.

       The act of combining wastes may  also result in changes in containers. Therefore,
 the container designations  on the manifest would need to be changed as well.  In a
'Situation involving only one or two minor changes, such as container changes, the
 original manifest could be  marked to reflect the changes.  In  other cases such as the
 situation mentioned above involving  a change in shipping description, a new manifest
 would have to be initiated.  In any case,  whether a new manifest is initiated or not, the
 waste may only be delivered to the designated receiving facility as indicated on  the
 original manifest by the original generator of the waste. In other words, transporters
 would not be able to combine waste (resulting in a DOT description change), and
 remanifest the waste to a designated facility that was not indicated on the original
 manifest by the original generator as the designated facility.

       In regard  to the compatibility of wastes being mixed, I refer you to the document
 entitled "A Method for Determining the  Compatibility of Hazardous Wastes," order
 number 600/2-80/076, available from EPA's Office of Research and Development ((513)

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569-7562). An individual consolidating wastes in containers should also refer to
Appendix V of 40 CFR Part 264. This appendix groups materials according to their
potential incompatibility.

     With respect to your questions regarding notification, several, issues require
clarification-  Under Subpart D of 40 CFR 266, facilities which qualify as marketers or
burners are required to notify the Agency of their hazardous waste fuel activities, even if
they had previously obtained an EPA identification number.  See 40 CFR 26634(b) and
26635(b), respectively.  Marketers are defined as generators who market hazardous
waste fuel directly to a burner,  persons who receive hazardous waste from generators
and produce, process, or blend  hazardous waste fuel, and persons who distribute but do
not process or blend hazardous waste fuel. If the service centers fall into any of these
categories, they are considered  marketers of hazardous waste fuel  and  are required to
renotify to identify their hazardous waste fuel activities.

     You  are correct that the EPA identification number is location-specific.  Under 40
CFR 263.11, a transporter is prohibited from  transporting hazardous wastes without
having received an EPA identification number.  Currently, this number is assigned to the
transportation company as a whole; all of the individual transporters (trucks) in a given
shipping company have the same EPA ID number, the number that the transportation
company was issued and which  is issued to the company's headquarters location.

     Your final question concerns the identification number that should appear on the
manifest accompanying the waste at the transfer facility.  Regardless of whether the
transfer facility is acting as a transfer facility or a regulated storage facility, the
identification numbers appearing on  the manifest would be the EPA identification
numbers associated with the generator of the  waste, all the transporters who transport
the waste, and the designated facility.

       In the situation you describe, in which  one company transports waste to and from
a transfer facility it operates, and the waste remains under the control  of the transporter,
no separate EPA ID number need be entered on the manifest specific to the transfer
facility. However, you should note that waste must remain under the control of a
transporter as designated on the manifest while at a transfer facility. As described in
detail in the regulations, a transporter may only deliver wastes to: (1) the designated
facility listed  on the manifest, (2) an alternate designated facility, (3) the next designated
transporter or,  (4)  a place outside the United States designated by the generator (40
CFR 26321).   Until the signature of the designated facility or subsequent transporter is
obtained,  the waste is considered to be in the custody of the transporter who last signed
the manifest (45 FR 12739; February 26,1980).

       As mentioned briefly above, transporters must comply with the generator
standards of 40 CFR Part 262 when  they mix wastes of different DOT descriptions (40
CFR 263.10(c)(2)). They must remanifest the waste to accurately refleci the
composition of the waste. Although they may indicate on the manifest in box 15  the
name of the original generator(s) of the combined waste, they must represent themselves
as the  generator of the new waste.  Although by creating or  generating a new waste  they

-------
have taken on some of the generator requirements, the transporter should continue to
manifest the waste to the designated facility as indicated on the original manifest by the
original generator.

     I realize that this letter contains an abundance of information.  If you would like to
discuss any of the topics further, please have your staff contact Emily Roth of my staff at
FTS 382-3098.
Attachment

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                         RCRA/SUPERFDND HOTLINE MONTHLY SUMMARY
                                         NOVEMBER  1991
t.^rdnsfer Facility as Central Collection
   A company generates small quantities of
hazardous waste at several separate field
locations. The company does generate more than
100 kilograms of hazardous waste per month at
each separate field location. May the company
use a transfer facility as a central collection point
to consolidate waste from these field locations?

   Yes.  A company may consolidate waste from
several locations or generation sites at a central
point provided that certain requirements are met.
First, each generation site must have an EPA
Identification No. and meet all applicable
requirements under 40 CFR Pan 262. In
addition, each shipment of hazardous waste must
be accompanied by a hazardous waste manifoi
—J the transporter must also have an EPA
     ification No,,

   The transfer facility provision under §263 12
may be applied to a situation such as this  one
under the following conditions. According to
§260.10, a transfer facility is defined as "any
transportation-related facility including loading
docks, parking areas, storage areas and other
similar areas where shipments of hazardous
 are held during the normal course of
 transportation." The transfer facility is the
 place where transporters consolidate shipments
 or transfer shipments to different vehicles in
 order to redirect them; this activity usually
 takes place over a short period of time. (45 ER
 86966; December 31.1980) Section 263.12
 allows a transporter to store manifested
 shipments of hazardous waste at a transfer
 facility for up to 10 days without obtaining a
 permit. During this time the hazardous waste
 must be held in containers which meet
 Department of Transportation (DOT)
 packaging requirements. As long as the central
 collection point meets the definition of a
 transfer facility, the company may use it to
 consolidate shipments of hazardous waste from
 different generation locations.  Note that if a
 transporter mixes hazardous wastes of different
DOT shipping descriptions, §263.10(c)
requires compliance with 40 CFR Pan 262,
Standards Applicable to Generators of
Hazardous Waste.

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9462 - COMPLIANCE
WITH THE MANIFEST
SYSTEM AND
RECORDKEEPING
Part 263 Subpart B
                 ATKl/l 104/29 kp

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                            NOV 29 S85
Mr. David boult«r
/'.•»»; Director, nalne Department of
  environnental Protection
Bureau of Oil and Hatardou*
  Materiala Control
State Houae station »17
Auguata, Main* 043J3

Dear Hr. Boulten

     On February 6, 19*5. Transport Canada published nav
regulationa for the tranaport of hasardoua aateriala.  Theae
regulationa, which Decame effective on July I, racognls* th«
(jnifora uasardoua taaata Hanlfaat (UHMn) for thoa« ahlp««ntt
originating In th« United btatas and deatined for Canada.
Thus, under tne Canadian regulationa* U.S. Generator* are
only required to prepare and tranaportera only need to carry
the n.b. man!feat for raaardoua waate ahlpmenta to Canada.

     I have been aaked by Environnent Canada if thia Agency
would consider recogniiln^ the Canadian man ifeat for thoae
hatardoua vaate tnipwenta aovlng frow Canada to the United
statea.  Before diacuaaing thia aubject further with Environ-
ment Canadar I firat wanted to aolicit commenta fron thoae
state* which are moat directly involved in Canadian trana-
boundary ax>vementa.  Toward thia end, I have encloaed a copy
of the Canadian vanlfeat for» for your review and eoawent.

    In particular* I would appreciate your coooenta on whether
the foratat, nuaiber of coplea, and Information requirenenta on
the Canadian nanlfeat for* meet your State'* xanifeat  Infor-
mation requirementa.  Specifically, do you aupport the
initiation of a federal rulvnafclng action which would allow
the uae of the Canadian nan if eat fora) for any hasardoua waate
ahipavent originating in Canada,  of courae, I alao welcome
any other cceMienta you aay have on thia aubject.

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                                -2-

     I plaa to diacaaa this !••«• with Mr. Vie Shantora of
•aviroaawnt Canada aarly n*«t Month.  Th«r*for«, I would
appraciat* your coaawnta by Daca«bar t.  In ord«r to save
tiM, Z augg«at that your ataft contact Ma. Carolyn Barl*y
on 202-382-2217 to diacvia your ccoawnta.

     Thank you for your h«lp.

                                  youra,
                        Aruea R.
                        Oiroctor
                        r«r»lta and Itata Prograas Diviaion
  •nclo««r«
  e«s  Riciurd ftafcar (Maln«)
       tu« Noraland
       •otwrt nalp««a
           Shantora (InvlronMint Canada)
WH-563tCBtcc:382-2117tlO-25-85iCC'« dialtf.docl

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                                                                                    0     O      0     0      O
                                                                                      OMtytoff ••*•« Ou *«•«• an
MM ••*... •.       i.	                 lwit.M.4 C«M
*•••»! . ..   . ... ..PMNI            k" •-«-*•!

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                                                    9462.1987(02)
             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                           OCTOBER 87
2.    Manifesting Requirements

     40 CFR Section 263.20(a) requires that a transporter only
     accept waste which is accompanied by a manifest signed by
     the generator.  Section 263.20(b) requires a transporter to
     sign and date the manifest,  acknowledging receipt of the
     waste as it is described in the manifest.  A generator loads
     his waste directly into a bulk tank railcar.  The rail
     transporter will then distribute the load among three
     trucks.  How would the manifesting requirements be handled?

          The generator would cut three manifests and on each the
          total volume transported would be indicated with a
          notation that the waste will be split into thirds.
          Each manifest would require original signature of the
          generator and the rail transporter.  The signed
          manifests would be mailed to the trucking company which
          would then give each of the three truck drivers one of
          the manifests.

     Source:    Paul Muschovic  (202)  475-7736
     Research:  Laurie Huber
        This has been retyped from the original document.

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9463 - HAZARDOUS
WASTE DISCHARGES
Part 263 Subpart C
                   ATKl/l 104/30 kp

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                                                    9463.1980(01)


June 18, 1980


Subject:  Questions on DOT'S role in the Transportation of
          Hazardous Waste

From:     Bruce Weddle, Deputy Director
          State Programs and Resource Recovery Division (WH-563)

To:       Janet DeBiasio
          Hazardous Waste Section
          Region I

     The following are our responses to the questions you raised
in your memorandum of May 8, 1980 on the above subject:

Question

     Since U.S. DOT is broadening its authority to control
intrastate commerce, who in DOT will be responsible for
inspection, compliance and enforcement of the federal
transportation regulations in Region I?

Answer

     DOT'S hazardous materials regulations will not apply to
intrastate motor carriers operating in a state which has interim
authorization.  However, DOT'S regulations will be applicable to
intrastate motor carriers when that State receives final
authorization.  In states where EPA is running the program, the
DOT hazardous materials rules will apply beginning on November
20th (the effective date of those rules).  DOT and EPA are
developing a plan for implementing the DOT/EPA Memorandum of
Understanding which will include intrastate inspection,
compliance, and enforcement.  This plan will identify the
specific offices within DOT responsible for enforcement
activities.  For further information on DOT'S responsibilities
for enforcement, I suggest that you contact Bill Nalley, DOT
headquarters (755-5893).

Question

     When a state submits an application to EPA to manage a
hazardous waste program, it is assumed that U.S. DOT will allow
the enforcement of the Federal Transportation Regulations, 49 CFR
100-199, to be carried out on the state level.  Who makes the
determination as to whether the state's transportation
legislation and regulations are substantially equivalent and
consistent with the Hazardous Materials Transportation Act and 49
CFR 100-199?
        This has been retyped from the original document.

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                               -2-

Answer

     In terms of intrastate transportation, DOT specifically
stated in the promulgation on May 22, 1980 that the regulations
do not apply to intrastate motor carriers in those states with
interim authorization.  Final authorization will only occur at
the state level when state regulations are equivalent to DOT
regulations.  For interstate transportation, DOT and EPA may step
in when HW transportation procedures ar not in compliance with
DOT HW transportation regulations.

     The determination of whether a State's transportation
legislation and regulations are substantially equivalent with the
Federal program will be made by EPA.  The RCRA State Interim
Authorization Guidance Manual, which will be available this
month, will provide the guidance necessary to make that
determination.

     The Agency has not negotiated who will make the
determination of equivalence with DOT since we are focusing
attention on matters related to interim authorization.  Since
this subject relates to final authorization, a decision as to who
will determine equivalency between State and Federal regulations
will be dealt with at a later date.

Question

     When there is a hazardous waste spill during transit, the
hauler submits a report to DOT.  DOT, in turn, notifies EPA of
the incident.  Who in DOT will be receiving the report for the
New England area and where in EPA does DOT intend to transmit
copies of the incident report?

Answer

     In the event of a hazardous waste spill during transit, a
transporter must submit a written report as required by 40 CFR
171.. 16 to the:

          Associate Director for Hazardous Materials Regulations
          Department of Transportation
          Washington, D.C.  20590

DOT will then provide copies of the incident reports to
Headquarters.  The forthcoming plan for implementing the DOT/EPA
MOU (as discussed in the first answer) will address this
particular issue.
        This has been retyped from the original document.

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                               -3-

Question

     I have read the draft Memorandum of Understanding between
EPA and DOT.  Would you explain difference in jurisdictions and
responsibilities of the Bureau of Motor Carrier Safety (BMCS),
Federal Highway Administration's Washington office (FHWA) and
DOT?  When will we know who will be Region I's contact in these
different agencies?

Answer

     The Bureau of Motor Carrier Safety (BMCS) is a part of the
Federal Highway Administration, (FHWA) which is a part of the
Department of Transportation.  (See organizational chart
attached.)  BMCS's primary function is to reduce fatalities,
injuries and property damage, as well as increase public safety
in the highway transportation of hazardous materials.  The BMCS
and the FHWA field staff enforce the Federal Motor Carrier Safety
Regulations pertaining to the transportation of hazardous
materials by the highway mode.

     The Federal Motor Carrier Safety regulations govern
qualification of employees whose work affects safety of
operation, maximum hours of service of such employees, safety of
operation of commercial vehicles; and vehicle safety, including
performance reguirements, parts and accessories, and maintenance
of vehicles.  The Hazardous Material Regulations, among which are
reguirements for shipping papers, placards, containers, labels,
etc., concern the safe transportation of hazardous materials.

     The field programs of BMCS are administered by FHWA's nine
regional offices.   The contact person for each Region, as well as
for each state in that Region, is provided in the office of Motor
Carrier Safety's "Field Roster."  A list of the FHWA contacts.

     I hope these answers are sufficient,  but, if you need
further clarification or information, please contact Wolf R. Gill
or Carolyn Barley (755-9145).
Attachments

cc:  Regional Generator/Transporter Coordinators
     w/attachments
        This has been retyped from the original document.

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                                                      9463.1980(02)
         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                     WASHINGTON. D.C. 20410
                           '" 25  520
                                PIG 81-8
                          ll
 MEMORANDUM
 SUBJECTt
 FROM i
Program Implementation Guidance On Issuance of
Provisional EPA Identification Numbers
Stiffen W. Plthn
Deputy Assistant
  for Solid Weete
TO i
Issues
R. Sarah Compton'
Deputy Assistant Administrator
  for Water Enforcement (Eff-335)

PIGS Addressees
  and Regional notification Contacts
     Should the Agency establish a new procedure to facilitate
rapid issuance- of EPA identification numbers to generators or
transporters during spills or other unanticipated events?

Discussion*

     The final RCBA Subtitle- C regulations effective November 19,
1980 include requirements for herardous waste generators and
transporters to obtain EPA identification numbers.  Generators and
transporters who did not obtain an EPA identification number
during the notification period may obtain one by applying on
EPA form 8700-12.  Concern has been expressed by some EPA
Regional Offices and some members of the regulated community
that the regulation* do not provide- for rapid issuance of
identification numbers during spills and other unanticipated
incidents where a person may become a hazardous waste generator
or transporter.  The following scenario illustrates this
type of situation.

     A spill of gasoline, which met the ignitable characteristic
of hazardous waste, occurred at a gasoline filling station.
The etation did not have an EPA identification number.  Once
the spilled material was contained in barrels, the station
operator judged that keeping the barrels on-eite for several
vaeks while waiting for an identification number could be

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 dangerous.   The  transporters he  contacted would not pick up
 the  waste  to take  it  to  a  facility unless the station operator
 produced a manifest bearing the  generator's identification number.
 The  operator called his  EPA Regional Office to obtain a
 number but was told that the regulations do not provide for
 their issuance over the  phone, and that application would
 have to be made  on Form  8700-12.  Obviously, that solution
 was  unworkable,  for it prevented timely and safe handling of
 the  waits.   Uttr  that day it wai resolved, that tht Regional
 Office would issue a  special identification number over the
 phone to the operator, thus enabling him to have the waste
 transferred  to another location  without delay.  This is one
 of several examples brought to our attention, indicating a
 need for rapid identification number issuance. -

     In response to this need, the Agency will publish- a
 Notice in  the Federal Register as soon as possible announcing
 that EPA Regional  Offices  may in certain instances and at
 their discretion issue provisional EPA identification numbers.
 The  Regional Notification  Contacts will be listed as contact
 points.  Z urge  those individuals to plan for implementation
 of this new  procedure.

     At this time, we have identified a general set of circumstances
 where issuance of  a provisional  identification number would be
 appropriate.  As the  hazardous waste program matures, other
 applications will  probably become apparent.  Officials may waive
 the  EPA identification number requirements tor generators
 and  transporters engaged in immediate hazardous* waste removal
 following a  discharge incident.  (See 40 CFR 263.30(b) and
 EPA  Headquarters guidance  memo to Regional Offices oa emergency
 response, 11/19/80.)*  For  a variety of reasons a waiver may
 not  be authorized, or if a waiver is authorized, the generator
or transporter may still identify a practical need for obtaining
 an identification  number before  transporting the waste.  In
 such a case,  an  oral  or  written  provisional identification number
may be issued by a Regional Office.

Decision i    •,

     Regional Office  personnel should be prepared to issue
provisional  numbers OB a 7-day,  24-hour basis.  Preparations
 should also be made to issue these numbers orally either over    	
the phone or  in  person,  as well  as in writing.

     Recommended procedures for  issuing a provisional identi-
 fication number  are as follows*

     a)  Ascertain the need for  a provisional number from the
         applicant.

     b)  If  a decision is  made to issue the number, collect
         as much of the  information required for Form 8700-12
         as possible.

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     c-)   Issue the number.  We suggest this be dene by using
          a fyvtsa devised internally ia taeh Region.  X
          recommended format, similar to the standard EPA
          identification number format, would have the two
          letter state abbreviation, followed by the letter "P"
          for  "Provisional", followed by a serially increasing
          nine digit code for each subsequent number issued,
          e.g.,  "7XP00000042t."  (These numbers will not be
          part of the Don and srad*treet system and will not
          be- entered into the national computer data base-.)

     d)   Explain what condition*, if any, apply to the use or
          duration of the number.  Inform the applicant of
          requirement* for submission, of completed Perm 8700-12
          within 10 days of receipt, of a blank form from OX.
          X final identification number may then be issued.

     e)   Document all proceedings and follow through a* appropriate

     We intend that, the provisional identification number be
a practical alternative ia situations where the standard
procedure- for issuing OX identification numbers would be
unreasonably  time-consuming.  X regulation change is not
necessary ia  order to implement tali procedure, however,
future amendment* to the- generator and transporter regulation*
will clarify  and disease other requirement* which may apply to
personjr*who receive provisional, numbers.*  The establishment
of thi* procedure is. part, of a. larger effort by the Xgeoey
t» addree* the* application, of the* Subtitle1 C regulation*- to
rapid response-*  Ibur comment* and suggestion* are- wel

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TSDF Administrative Requirements
(Parts 264 and 265)
                               ATKl/1112/llsm

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                                               9470.1985(01)
         RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                      FEBRUARY 85
Section 213 of the RCRA amendments requires that
owners/operators of land disposal facilities operating under
interim status submit Part B permit applications certify
compliance with applicable groundwater monitoring and
financial responsibility requirements by November 8, 1985.
If these requirements are not met, interim status is
terminated.  Would an owner/operator with a treatment
surface impoundment operating under interim status fall
under the requirements of section 213 and, therefore be
required to submit a Part B and an appropriate certification
by November 8, 1985?

     Yes; the owner/operator of a treatment surface
     impoundment must comply with the requirements of
     Section 213.  The definition of land disposal units
     includes all land based hazardous waste management
     units.  Therefore, owner/operators of facilities with
     landfills, surface impoundments, waste piles, and land
     treatment units must comply with Section 213.

     Source:  Bryan Wilson (202) 382-4534
   This has been retyped from the original document.

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General (Subpart A)
                                   ATKl/1112/12sm

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9471 - GENERAL
Parts 264 & 265 Subpart A
                     ATKl/1104/32 kp

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                                                         9471.1983(01
                           JUL 1 2 1983
Mr. J.C. Seevy, Plant Hanager                 RBt  WCBLG0344
Horcules,  incorporated
F.O. Box 249
nock toad
Burlington* H.J.  08016

Dear «lr. Seavyt

     This  letter  IB written  in reference to the exclusion
petition submitted by Hercules, Incorporated of Burlington,
New Jersey.  Hercules requested an exclusion for the wastevater
strewn generated  at its Burlington facility, presently listed""
fo~r containing nethanol, a spent solvent.  This waste is produced
when the solvent  (EPA Hazardous Waste No. POOD, which is used
in th* manufacturing operation, is discharged to th« plant's
waatewater treatment systea  for treatment.

     on November  17, 1961, EPA amended the hasardous waste
regulations under the Resource Conservation and Recovery Act to
exempt certain categories of mixtures of solid wastes and
hazardous wastes  fro* the presumption of hasardousneas (see
46 PR 5(582).  In one case'certain wastes are listed in Subpart
D solely because  they exhibit one or wore of the characteristics
of hasardous waste identified in Subpart C of the regulations.
Mixtures of any of these wastes and other solid wastes, prior
to the amendment, were presumptively hasardous by application
of the mixture rules and remained hasardous unless the waste
mixtures were excluded pursuant to 40 CPR 260.20 and 260.22.
The Agency has, however, exempted mixtures of solid (non-
hssardous) wastes and listed (hasardous) wastes that are listed
solely for exhibiting^ characteristic from the presumption of
hazardous**** since these waste mixtures can be tested to
•ettrmine whether they still exhibit the hasardous waste
characteristics.  Therefore, mixtures of those wastes listed
*el«ly for exhibiting a charactoristie and other solid wastes
are no loogor considered to be presumptively hasardous.
               •                \
     Hercules has stated that they have reviewed the treated waste
stream generated  a their facility in light of the November 17,
1981, amendment to the mixture rule and have concluded that this
waste would no longer be considered hasardous.  The Agency has
not made an independent evaluation of your situation but, rather
ia accepting your statement  a* fact.

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                               -2-


      Aa  a  result*  it  is  no  longer  neceseary  for  you  to petition
 tho Agency for  exeluaion of your waatee.  Therefore,  thia  letter
 ia  to indicate  to  you  that*  baaed  on  your interpretation,  ve  are
 clewing  your  file.

      lowrver, if the manufacturing or wastewater treatment
 •y ii tern at fomr  facility  undergoes  any process  changes, this
 wante could omce again be considered  a>  hazardous waste,  itch
 fewerator  legitimately  reaponaible for determining  whether hie
 vaitte exhibits  any of  the characteristics of a masardoua waste
 (Xi«»» igaitability, corroeivity,  reactivity,  and IP  toxlcity)
.us  described  IB 40 CF* 261,  iubpart C.  If the waste  mist  be
 nanaged  in  accordance  with  the haxardoua waate •anageaent
 regulationa.                                              * ~-

      If  I  can be of any  further aasistant to you in  thia natter,
 pleaae do  not hesitate to contact  Mr. Matthew  Straus  or
 Mr.  Willian Sproat of  «y ataff at  (202) 392-4770.

                                Sincerely youra,
                               Eileen B.  Clauasen
                                   Director
                     Office  of Management,  Information,
                                and Analyaia

cct  MS. Sonya Shaahoua
     N.J. Department of  Environmental Protection
     Dlviaion of Environmental Quality
     Solid Waate Adminiatration
     32 E Hanover Street
     Trenton, N.J.  08623
!«-565B/B»lWAT:«AtS248,X24770,7/6/i3lMSKlLG0344
                 Corrected«pest7/8/83

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                                                 9471.1984(01)
                 RCRA/SUPERFUND  HOTLINE  SUMMARY

                               MARCH 84
Can leachate fron a  landfill.or liquid hazardous waste De viewed  as  wasce-
water so that the wastewater tanks Handling these waste streans are
excluded fron regulation by 265.1(0(10)?

     Wastewater  has  no regulatory definition, but a resonable interpreta-
     tion would  be a process waste from an industrial process containing
     approximately It or less contaminants.  Treatment tanks fee  leachate
     or  liquid wastes such as spent solvents or ignitable liquids should
     not be excluded cron regulation under 264.1(c)(10).  It would be
     inconsistent to closely control wastes  in a landfill and not control
     management'  of the hazardous constituents in the leacnatt from them.

     Source:  Steve  Lingle and Fred Lindsey

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                                                       9471.1984(02)
                        RCRA/SUPERFUND  HOTLINE  SUMMARY

                                      MARCH 84
I Q -   Do pcrtaole  treacnent units connected  co  a process  unit meet the totally
       enclosed  treacnent exclusion?
            ?es,  if  the unit *ren connected to a  process  is  in cor^liance
            tne 5te;ulatcr/ Interpretive Letter (RIL 3-J) which specifies the
            paratr«t5r of a totally enclose^ treacnent  fscility.  Thus, pcrtaoL*
            treatment units could be used at multiple  facilities anci be excluded
            fron  reflation by 265.1(c)(9).

            Source:  Fred Lindsay

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                                                           9471.1984(03)
                             SEP - 3 l-c~
 Tinotny  A.  Taylor
 Wan.;  Laboratories,  Inc.
 Mail  Stop  02G2
 41  Wellman Street
 Lowell,  Massachusetts   01851

 Dear  Mr. Taylor:

      This  is  in  response  to your  letter  of August  2,  1984,
 in  whicn you  requested  an interpretation of  RCRA regulations
 regarding  tanks  used  for  emergency  secondary containment.   It
 snoula be  understood  that this  interpretation applies  only  to
 the Federal regulations promulgated in 40 CFR Parts  260-265.
 In  states  with E?A-authorized hazardous  waste programs,  the
 state regulations  will  apply.          '        .    '

      As  provided under  40CFR  $264.1{g)(8) and $265.1 (c) (11), ':
 emergency  structures  (including tanks) are exempted  from the
 regulatory standards .of 40CFR Parts 264  and  265  (except  for
 the preparedness and 'prevention and contingency, plan  require-
 ments of those standards).  To  qualify for the exemption a
 unit:  must  be  intended exclusively for immediate responses to
 discharges of 'hazardous wastes, such as  burst pipes,  ruptured
 containers or tanks,  breached dikes, and the like.   Structures
 used  for responding to  discharge  events  which occur  periodically
 or  repeatedly, or  in which containment or treatment  extends
 beyond the immediate  response period, do not qualify  for the
 exemption.

    •  The applicability  of the exemption  to the three example
 "secondary containment" tanks described  in your  letter must be .
 determined based on a site-specific assessment of  each unit*
 against  the above  criteria.   For  example, taking the  case of
 the tank used to contain  spilled  resicue from'a  truck loading/
 unloading  area,  the exemption would apply to the tank only  if
'it  could be demonstrated  that such  spills were extremely rare
 and unpredictable  events.

      I hope this adequately answers your questions.   Please let
 me  know  if I  can be of  any further  assistance.

                                Sincerely,
                                Peter Guerrero
                  Special Assistant to the Division Director

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                                                               9471.1984(04)

              RCRA/SUPERFUND  HOTLINE  SUMMARIES

                            AUGUST 84
7    A new landfill will have a separate  owner and operator.  WMle
     both parties will sign the permit,

     a)  1s one party chosen as the "peralttee"?


    b)  which party is liable

        1)  durlny the operating life?

       1i)  during closure/post-closure?

            a)  Both the owner and operator are the "permittees"
                on the permit; however,  it  is common for the
                operator to assume responsibility for meeting
                permit conditions.

            b)i) Both tn« owner and operator are liable during the
                facility's operating life.

             ii) Both the owner and operator are liable during
                closure/ post-closure of the facility, unless
                the closure/post-closure plans specify that the
                owner of the facility is becoming the operator
                as well as the owner.  This action would be
                accompanied by a permit  modification and relieve
                the original operator from liability (under
                RMA) during the closure/postclosure period.

                Source:   Chaz Miller
                Research: Tom Gainer

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                                                        9471.1985(01)
                RCRA/SUPERFUND  HOTLINE  MONTHLY  SUMMARY

                                 DECEMBER 84
                               -2-

2.  If a facility's  interim status is terminated,  trust  the  cwner/operitor of the
    facility  still rneet the 5265 interim status standards for closure, post-closure,
    and financial responsibility?

        Yes;  a  facility which has had its interim status terminated mst meet 3265
        standards, including those for closure, post-closure, and financial
        responsibility.  A technical amendment to th«  interim status standards
        which was published in the November 21, 1984 Federal Register (49 FS 46094)
        clarified that interim status standards are applicable  to facilities whose
        interim status is terminated until their closure and post-closure require-
        ments are fulfilled.

        Source:    Libby Scopino (202) 475-8731
        Research:  Hilary Sommer

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                                                     9471.1986(01
  -
  3        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
 J                    WASHINGTON, DC. 20460
                          SEP 2 9 I986
                                                        GPHCS 0?
                                              SOLID WASTE ANO e.>lE*CE.*IC
Mr. Fred Hansen
Director
Deoartment of Environmental Quality
!>22 S.W. Fifth Avenue, Box 1760
Portland, Oregon  97207

Dear Mr.l/Varisen:

     Thank you for your August 21,  1986,  letter regarding
accidental spills of listed or characteristic hazardous
v/astes.  Enclosed is the Agency's  response  to the eight
questions and issues that you raised.   Please note that we
have referred one of your guestions  to the  Superfund Office
and will forward a response to you.   I hope this clarifies
the Environmental Protection Agency's  regulation of spills
a.nd spill cleanups.

     If I can be of further assistance, please let me know.
         9
                              S/Oicerely,

                                / wfnston
                                4 istant Administrator
Enclosure

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1. Accidental SDills Of listed or characteristic hazardous
   wastes .which are cleaned uo within a reasonably short time.

     The Resource Conservation and Recovery Act (RCRA)  regulations
in 40 CFR Parts 264 and 265 Subparts C and n reauire immediate
actions to minimize hazards to human health and the environment
from any unplanned, sudden or non-sudden releases of hazardous
waste or hazardous constituents.  Sections 264.1(q)(8)  and 265.l(c)
(11) provide a requlatory exemption from interim status and permitting
standards for treatment and containment activities hazardous waste
discharges and imminent and substantial threats of discharges
(under §260.10 the term discharge includes both accidental and
deliberate spills).  The effect of this exemption is to promote
hazardous waste discharge prevention and control by relieving
persons engaged in immediate response to discharges and serious
threats of discharges from time consuming requirements.

     Under this exemption, treatment, storage and disposal facilities
regulated under RCRA must continue to meet the applicable requirements
of fJubparts C and D of Parts 264 and 265.  Treatment and containment
activities conducted after the initial response period are subject
to interim status and permitting standards.  A facility may qualify
for an emergency permit under 5270.61 for such treatment and contain-
ment: activities occuring after the immediate response period.

    Accidental soills should be addressed immediately and in accordance
with the facility's contingency plan.  Sections 264.51 and 265.51
reguire owner/operators of treatment, storage and disposal facilities
to have a contingency plan describing actions facility personnel
must take in response to any unplanned sudden or non-sudden
releases.  Under section 262.34(a)(4) , generators are also required
to have such contingency plans as a condition of obtaining a permit
exemption for 90 day on-site accumulation.  Generators are subject
to interim status and permitting requirements for treatment and
containment activities conducted after the accumulation period.

2.  Accidental spills not cleaned up within reasonably short time.

     As stated above, treatment and containment activities conducted
after the initial response period are subject to permitting and
interim status requirements*  In addition, if cleanup activities
do not begin promptly, the spill is considered a land disposal
site subject to permitting requirements.

     The Environmental Protection Agency  (EPA) has  not established
a definition of what constitutes an  immediate response  to a  spill
situation.  The timeframes and extent of  immediate  response  must
be judged by persons responding to discharges on an  individual
basis.  Extended responses which are  not  judged  to  be  immediate  in
nature may result  in:  (1) a modification  to  the  facility's contin-
gency plan;  (2) an enforcement action  for an  inadequate  continqencv
plan or permit violation; or  (3) enforcement  action for illegal
disposal.

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                               - 2 -

3.  Spills where cleanup requires on-site treatment.

    As explained in the response to question * 1,  S264.1(n)(«)
and 5265.!(c)(11) provide a regulatory exemption  from interim
status and permitting standards for treatment activities conducted
in immediate response to discharges or threats of discharges.


4.  Transportation spills cleaned un within a reasonably short time.

   §263.30 requires the transporter to take appropriate,
immediate action to protect human health and the environment.
Under §263.30(b), an authorized official may authorize removal
of the spill by transporters without an EPA ID number or manifest
in an emergency.  When an emergency no lonqer exists, all
applicable requirements of the RCRA regulations once again apply
to all of the transporter's activities.  The Department of
Transportation has also issued rules regarding spills occurring
during transport.


5. Transportation spills not cleaned up within a reasonably short time

   As discussed above, EPA has not established a definition of
what constitutes an immediate response to a spill situation.  The
timeframes and extent of immediate response must be judqed by
persons responding to discharges on an individual basis.  Extended
responses which are not judged to be immediate in nature may be
subject to enforcement action for illegal disposal.

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1.  When dees a spill become a Superfund candidate versus
    cleanup under RCRA?

    Question has been referred to our Superfund  Office for
response.


2.  When does a spill become a facility as defined in RCRA?
                        /
    As discussed above, if cleanup activities do not begin promptly,
the spill is considered a land disposal site subject to permitting
requirements.  In addition, spill areas where hazardous waste is
treated, disposed or scored pasc the immediate response phase
are subject to all applicable interim status and permitting
standards for hazardous waste management facilicies receiving
waste after 11/19/80 as outlined in Pares 264, 265 and 122.


3.  Are there any situations where the cleanup standards
    are different than background?

    RCRA regulations do not specifically identify a level of clean-up
required in spill situations.  Under §263.31, a transporter muse
clean up any hazardous waste discharge so that the discharge no
longer presencs a hazard co human health and the environment.
Under the emergency procedures provisions of $264.51 and $265.51,
generators, treatment, storage and disposal facilities must take
those actions, as outlined in the contingency plan, necessary to
minimize hazards to human health and the environment.

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            UNITED S, .ES ENVIRONMENTAL PROTECTION AC..,CY       9471.1987(02)
   DEC  2 1


MEMORANDUM


SUBJECT: RCRA Subtitle C Exemption for Wastewater Treatment and
         Elementary Neutralization Units
FROM:    Marcia E. Williams
         Director, Office of:&riid Waste (WH-S52)

TO:      William A. Whittington
         Director, Office of Water Regulations and Standards
         (WH-551)

         James R. Elder
         Director, Office of Water Enforcement and Permits
         (EN-335)
    On November 17, 1980, EPA promulgated amendments to Subtitle
C of RCRA that suspended the applicability of the hazardous
waste regulations to owners and operators of wastewater
treatment and elementary neutralization units (45 FR 76074)  (see
40 C.F.R. sections 264.1(g)(6) and 265.l(c)(10)).  Since then,
EPA has been asked to respond to numerous inquiries regarding
the intended scope of these exemptions.  Because the
overwhelming majority of inquiries are with regard to the
exemption for wastewater treatment units, this  memo will focus
on these units.  Several attempts have been made to address  the
ambiguities of this exemption.  On more than one occasion, the
EPA responses have offered conflicting guidance.

    The Office of Solid Waste is again receiving a flurry of
inquiries on the scope of this exemption, apparently prompted by
the July 14, 1986, promulgation of more stringent revised
standards for hazardous waste storage/treatment tanJc systems
(including sumps).  Obviously, numerous individuals are hoping
to qualify for the wastewater treatment unit exemption as a
means of avoiding being covered by the revised  tank system
standards.  Thus, I feel that it is  important that we review and
clarify the scope of this exemption.  The purpose of this
memorandum is to obtain your concurrence with our reading of

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 the current exemption so that we could send a Policy Directive
 to the Regions regarding this matter and/or prepare a federal
 Register notice of clarification.

    In order for the exemption to be applicable to a wastewater
 treatment unit, these conditions, as listed in the definition of
 wastewater trea'tment unit under 40 C.F.R. Section 260.10, must
 be met:
    1)   The unit must be part of a wastewater treatment
         facility which is subject to regulation under either
         section 402 or 307(b) of the Clean Water Act; and

    2)   The unit receives and treats or stores an influent
         wastewater which is a hazardous waste as defined in
         section 261.3, or generates and accumulates a
         wastewater treatment sludge which is a hazardous waste
         as defined in section 261.3, or treats or stores a
         wastewater treatment sludge which is a hazardous waste
         as defined in section 261.3; and

    3)   The unit meets the definition of tank in section
         260.10.

    Most of the inquiries regarding the wastewater treatment
unit exemption are directed towards interpretation of condition
1) above.  Thus, our clarification of the intended meaning of
the term "wastewater treatment facility" is the primary factor
regarding the applicability of the exemption to a specific
wastewater treatment unit.

    It is our position that in order for a wastewater treatment
unit to be covered by the exemption, it must be part of an
on-site wastewater treatment facility.  In this scenario, any
hazardous waste tanJc system that is used to store or treat the
wastewater that will be, or has been, managed at the on-site
wastewater treatment facility with an NPDES permit  (or one that
discharges to a POTW), is exempt from the regulations.  Also,
the means of conveyance of the waste between storage/treatment
units does not affect the applicability of this exemption.
Assuming the conditions discussed above are met, no distinction
will be drawn whether the wastewater is piped, trucked, or
otherwise conveyed to the wastewater treatment facility within
the on-site boundaries of the facility generating the
wastewater.  Likewise, any tank system at a facility with an
NPDES permitted wastewater treatment facility  (or one that
discharges to a POTW) that is used to store/treat wastewater
that is brought on-site from another facility, is covered by  the
exemption.

-------
    However, any tank system that is employed in managing
wastewater at a facility prior to its off-site transfer to
another location, whether or not the off-site location is an
NPDES permitted wastewater treatment facility (or one that
discharges to a POTW), is not covered by this exemption.

    Another scenario that needs to be clarified is that situa-
tion where a facility with an on-site wastewater treatment
facility has no discharge, direct or indirect, to surface
water.  The wastewater treatment unit exemption is intended to
cover only systems that 1) produce a treated wastewater effluent
which is discharged into surface waters or into a POTW sewer
system and, therefore, is subject to the NPDES or pretreatment
requirements of the Clean Water Act, or 2) produce no treated
wastewater effluent as a direct result of such requirements.
This exemption is not intended to apply to wastewater treatment
units that are not required to obtain an NPDES permit because
they do not discharge a treated effluent (45 Efi 76078;
November 17, 1980).  As a result, we anticipate that some
facilities will apply for a zero-discharge NPDES permit in an
attempt to qualify for this exemption and thus avoid RCRA
regulation.

    Please note that the above reading is based on our
assumption that all storage/treatment tank systems covered by
this exemption will be subject to regulation by NPDES
authorities.

    If you agree with this general approach, please designate
someone to serve as a contact person for the Office of Water's
review of our draft policy statement.  We have been working with
staff from the Office of General Counsel and the Office of Water
Enforcement and Permits in developing the rationale to support
our preferred reading of the current regulations.  We have their
tentative concurrence on this approach.  I look forward to
hearing from you regarding our efforts to clarify the wastewater
treatment unit exemption.  If you have any questions, please
contact me at 382-4627 or have your staff contact Bill  Kline  or
Bob Dellinger of my staff at 382-7917.
cc:  Gene Lucero, WH-527
     Ron Brand, WH-562A
     Bruce Weddle, WH-563

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                 U«rrik..rATIS ENVIRONMENTAL PtOTICTION  >INCY      9< 7L 1988 f 02)
                                APR 29  1988
Mr. Bruce P. McLeod, P.E.
Senior Specialist
Environmental Control
Monsanto Chemical Company
P.O. Box 12830
Pensacola, FL  32575

Dear Mr. McLeod:

    The purpose of this letter is to reply to your letter of
July 24, 1987, to Bob Dellinger, requesting an interpretation
regarding application of the elementary neutralization exemption
to Monsanto's Pensacola plant.  First, please accept my sincere
apology for the delayed response to your letter.  As previously
mentioned, your letter involves difficult issues regarding the
scope of the elementary neutralization unit exemption, and was
further delayed by our inadvertent loss of your original letter.

    I would like to address your concerns in the same order as
discussed in your letter.  You first questioned whether the
Pensacola plant sumps are indeed sumps since the waste is not
ultimately transported to a RCRA storage, treatment, or disposal
facility as specified in the definition of sumps in 40 CFR 260.10.

    Since the various wastes with differing pH values, that meet
the definition of hazardous waste only due to corrosivity, are
introduced at various points upstream to a system of sumps and
piping, the collection and treatment of such wastes seemingly
occur more or less concurrently.  Accordingly, such sump(s) and
associated ancillary equipment (e.g., piping, pumps) would indeed
be considere^a hazardous waste sump and be subject to the
standard* f•£hazardous waste storage/treatment tank systems.

    Your second question requested clarification of whether the
Penstacola plant wastewater collection system would qualify as  a
elementary neutralization and/or totally enclosed treatment
facility, thus qualifying for those respective exemptions.

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                               - 2 -


     Based on your description of this particular operation, we
believe that the totally enclosed treatment facility exemption
would be unlikely.to apply.  We believe the sumps and their
associated ancillary equipment would qualify for the elementary
neutralization exemption under the Federal regulations because the
sump and its ancillary equipment meet the criteria defining an
elementary neutralization unit in 40 CFR 260.10 since it is used
to neutralize hazardous wastes only exhibiting the corrosivity
characteristic and it meets the definition of tank system.  Thus,
the  elementary neutralization exemption, as allowed in 40 CFR
264.1(g)(6) and 265.l(c)(10), would seem to apply to this
Pensacola plant wastewater system insofar as the neutralization
sump and ancillary equipment are located within the boundaries of
this facility.

     Since the ultimate decision for determining the regulatory
status of a specific unit at your facility is the responsibility
of the State of Florida, please contact them at the address/
telephone number indicated below.  If necessary, please feel free
to refer them to me.

     Again, please accept my apology for not sooner addressing your
letter.  If you have any further questions, please call Bill Kline
of my staff t>r me at (202) 382-7917.

                                  Sincerely,
                                  Robert W. April, Chief
                                  Capacity and Storage Section

RWD/bw

cc:  Bob Dellinger, NMD
     Bill Kline, WMD
     Carrie Wehling, OGC
     Chet Oszman, PSPD
     RCRA Branch Chief, Region 4

     Administrator, Florida DER
     Solid and Hazardous Waste Section
     Twin Towers Office Building
     2600 Blair Stone Road
     Tallahassee, Florida  32301
     Phone:  (904) 488-0300

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                                                 9471.1988(03)
               RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                 JULY  88
3.  Elementary Neutralization Units

  A generator produces large volumes of corrosive waste. It is pumped directly to
  a tank  which is an elementary  neutralization  unit.   However,  this waste
  (corrosive  only) remains in  the  tank for  two months before it  is actually
  neutralized. Is this waste counted  for purposes of determining generator status?
  Is the corrosive waste that is stored in the neutralization unit prior to treatment
  included in the scope of the exemptions in Sections 264.1(g)(6), 265.1(c)(10) and
  270.1 (c)(2)(v)7

    No, this  type of waste is not counted for determining generator  status.  As
    stated in the March 24, 1986 Federal Register (511FR 10146) wastes treated in
    elementary  neutralization  units are included  in  the general category  of
    exempted or excluded wastes  that would  not be counted in determining
    generator status.

     Also, this  waste is not counted because  it  is not subject to  substantive
     regulations  in  40  CFR  Parts  262 and  263 as long as  it  remains in  the
     neutralization unit (51 FR 10152).

   Source:        Bob April   (202) 382-7917
                 Emily  Roth  (202) 382-4777
   Research:      Mary Stevens

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                                                      9471.1988(04)
/  «*  \
\mj
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. D.C.  20460
                            P:~T
                               27 irsr
                                                          OFFICE OF
                                                  SOLID WASTE AND EMERGENCY RESPON
MEMORANDUM
SUBJECT:  RCRA Regulation of Pesticide Jlinsate
          Treatment/Recycling System « .,( '  ' -
                                   */i /1. ••.
          Sylvia K. Lowrance, Dire
 FROM:
           Office of solid Waste TOS*3W)

 TO:       David A. Wagoner, Directior
           Waste Management Division
           EPA Region VII
    This memorandum is in response to your September 15, 1988
nwimorandum requesting clarification of the RCRA regulation of
certain tanks in a pesticide container washing operation.

    As I understand the process, the rinsevater from the
container washing is collected in a sump, is then pumped to a
settling tank, and subsequently treated with activated carbon.
The treated rinsevater is reused for container rinsing, but the
pesticide residues are discarded.

    Your interpretation that the used rinsevater is a "spent
material" is correct; as a spent material going for treatment
(or reclamation), it is a solid vaste.  If the used rinsevater
contains a pesticide listed in 40 CFR 261.33 that vas not
derived from an  "empty" container as defined in Section 261.7,
the used rinsevater is a hazardous vaste.  If the pesticides do
not meet a listing, the used rinsevater is a hazardous vaste  if
it exhibits a characteristic (Section 261.20-261.24).

    Although the system does have certain characteristics of  a
reclamation operation, it is more clearly defined as a
vastevater treatment unit.  As stated in your memo, this unit
would be subject to RCRA permit requirements unless exempted
under the vastevater treatment unit exemption at 40 CFR
264.Kg) (6) or 265.1(0(10).  In a September 2, 1988 Federal

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                               -2-
Reqister notice, the Agency clarified that this wastewater
treatment unit exemption is intended to cover only tank systems
that are part of a wastewater treatment facility that (1)
produces a treated wastewater effluent which is discharged into
surface waters or into a POTW sewer system and, therefore, is
subject to the NPDES or pretreatment requirements «of the Clean
Water Act, or (2) produces no treated wastewater effluent as a
direct result of such requirements.  This exemption is not
intended to apply to wastewater treatment units that are not
required to obtain an NPDES permit because they do not discharge
treated effluent (see 53 PR 34080-81).  As your memo explains,"
the treated rinsewater is completely recycled back into the
operation and no discharge occurs.  I cannot conclusively
determine whether the unit would be eligible for an exemption as
a wastewater treatment unit; that determination must be made by
the authorized state or Regional office. In making this
determination, the authorized State or Regional office must
determine whether the facility is subject to regulation under
Sections 307(b) or 402 of the Clean Water Act.

    Regarding the regulatory status of the "reclaimed" rinsate,
you cited the January 4, 1985 Federal Register preamble (50 FR
634) discussion of products from recycling operations losing
their status as a waste.  While the regulatory language allows
for flexibility in determining whether a reclaimed waste may be
considered a product (thus losing its status as a waste), the
preamble discussiot. indicates that reclaimed wastewaters are not
to be considered products.  The reasons for this approach (i.e.,
that wastewaters are not ordinarily considered to be commercial
products and are often discharged, and that the Agency did not
intend to allow facilities to exempt their wastewater treatment
surface impoundments from regulation by being classified as
"recycling" facilities) are not necessarily applicable in this
case.   When reused, the reclaimed rinsate would lose  its status
as a solid waste as provided in 40 CFR 261.2(e)(1)(ii), provided
it is truly reclaimed as an effective substitute  for what is
typically used to rinse the containers.  Until  it  is  reclaimed
and fit for reuse, the rinsate would remain a solid waste, and,
if applicable, a hazardous waste.

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                               -3-


    If-you have any further questions or need any additional
clarification, you should contact Mitch Kidwell at FTS 475-8551


cc:  Michael Feeley
     Chief, Waste Programs Branch
     EPA, Region IX

     Karen Schwinn
     Chief, Waste Compliance Branch
     EPA, Region IX

     Waste Management Division Directors
     Regions I-X

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                                                       9471.1988(05)
/ **  \
lag!
 *\**<^
NOV 30  B
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
           WASHINGTON, D.C. 20460
                                                           0"iCE OF
                                                   SOLID WASTE AND EMERGENCV
 Mr.  Fred Smith
 Institute of Makers  of  Explosives
 1120 19th Street,  N.W.
 Washington,  D.C.   20036


 Dear Mr.  Smith:

      EPA has been  requested  by  the  Institute of Makers of
 Explosives to render an opinion on  the application and
 interpretation of  the immediate response exception as set forth
 at 40 C.F.R.  sees. 264.1(g)(8),  265.1(c)(11) , and 270.1(c)(3).
 It is the Agency's view that the treatment of leaking or damaged
 explosives,  or undetonated explosives left after an initial
 firing attempt will, in many instances,  fall within the
 circumstances contemplated by the cited provisions.

      The  Agency recognizes that the  use of commercial explosives
 is subject to many non-EPA governmental regulations,  including a
 prohibition  by the Department of Transportation against the
 transportation of  "leaking or damaged packages of explosives"
 (49  C.-F.R. sec.  173.51).  According  to the Institute  of Makers of
 Explosives,  these  regulations affect the handling of  explosive
 waste and reinforce  the obligation of members of the  explosives
 industry  to  consider safety  as  a paramount concern.   Such wastes,
 if not treated promptly and  properly, can present an  imminent
 public safety and environmental hazard, e.g. . unplanned
 explosions or leaching  of materials  to the soil.  The immediate
 response  exception applies in those  instances where treatment of
 the  explosive waste  through  open burning/open detonation is taken
 in immediate  response to a discharge or an imminent and
 substantial  threat of a discharge of a hazardous waste.

      Examples in which  the immediate response exception would
 apply to  tit** disposal of explosive waste by open burning/open
 detonatioo£iiould include, but not be limited to, the  following
 situatioi "
A,  Land is cleared, with explosives and an amount of damaged or
unusable explosive  waste remains that, for safety reasons, cannot
b« stored or transported off-site.

B.  An explosives distributor has a temporary or permanent
meigazine at which undetonated  (but, for safety  reasons, unusable
and not transportable off-site), leaking or damaged explosives
are found, usually  at the end of the period of  explosives use or
during a periodic check on the  stored explosives.

-------
C.  An explosives distributor operates an on-site magazine for a
project with a changing location  (e.g., road building, pipeline)
at which undetonated  (but, for safety reasons, unusable and not
transportable off-site), damaged or leaking explosives are found.

D.  A mining operation detonates  large amounts of explosives and
a small percentage remains undetonated after the initial firing
attempt but, for safety reasons, cannot be reused or transported
off-site.
     The Agency notes that a guidance manual is currently being
prepared that will discuss the permit requirements for facilities
which store, treat, or dispose of explosive waste in
circumstances not qualifying for the immediate response
exception.
                                   Yours truly,
                                    _j2£VA_   JTT^X^-
                                   Sylvia Lowrance

                                   Director
                                   Office of solid Waste

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                                             9471.1988(06)




           RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                           DECEMBER 88
1. Closed Loop Recycling

In a production process a manufacturing facility generates a secondary material
that  consists of 90%  ignitable  liquids and  10% ignitable gases.  From  the
production process the material is piped to a storage tank where the ignitable
gases are separated from the ignitable liquids. The gases are then piped back into
the  production  process to b€ used as raw material. The remaining ignitable
liquid is discarded as a hazardous waste.  Is the liquid and gas mixture exempt
from being a solid waste under the closed loop recycling provision in Section
261.4(a)(8)?
 1. Closed LOOP Recycling (Cont'd)
                    Raw
                  Material
                     i  i
      PRODUCT
                         Manufacturing
                            Facility
                                                           Gases
2°  Material
(90% liquids
 10% gas)
f    Storage  Tank

   Liquid
                                                             Hazardous
                                                               Waste

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    According to Section 261.4(a)(8) secondary materials are not solid wastes if
    they are reclaimed and returned to the original process or processes in which
    they  were  generated where they are reused  in the production  process
    provided:

    (i)   Only tank storage is involved and the entire process through completion
        of reclamation is closed  by being entirely connected with pipes or other
        comparable enclosed means of conveyance;
    (ii)  Reclamation does  not involve  controlled flame  combustion (such  as
        occurs in boilers, industrial furnaces or incinerators);
    (iii) The secondary materials are never accumulated in such tanks for over
        twelve months without being reclaimed; and,
    (iv) The reclaimed material is not used to produce a fuel or used to produce
        products that are used in a manner constituting disposal.

    Provided  the  reclamation  process  meets  all  requirements  of Section
    261.4(a)(8),  the portion of the  secondary material that is returned  to the
    production process to be used as a raw material (the ignitable gas) is not  a
    solid waste.  However, the  remaining portion that is discarded (the ignitable
    liquid)  is a hazardous  waste and being  such is not exempted from the
    definition of a solid waste per Section 261.4(a)(8).  Since  the  generator is
    handling  a hazardous  waste,  he/she must  comply  with the applicable
    provisions of Parts 262 through 270.

Source:        Chester Oszman   (202) 382-4499
Research:       Joe Nixon

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                                         9471.1989(01)
     i       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     '-                  WASHINGTON. D.C.  20460
                            MAR 20 1989
                                                         3«'CE Of
                                                 SOLiO AAS'e AND £ME»GE^CV °ES°
 Mr.  Robert  H.  Elliott,  Jr.
 Zerpol  corporation
 1300 schwab Road
 Hatfield, Pennsylvania   19440

 Dear Mr.  Elliott:

     This  letter  is written  in  response  to  your correspondence  of
 January 10,  1989,  regarding the  applicability of permit
 requirements under the  Resource  conservation and Recovery Act
 (RCRA)  to your zero discharge  wastewater treatment system.

     As  I  understand the Zerpol Zero  Pollution System,  industrial
 wa.stewater  discharge to ground water, surface water  and  sewer
 systems is  eliminated by a  process that returns treated  water  to
 the  production area for reuse.   You  have previously  confirmed
 that a  National  Pollutant Discharge  Elimination System (NPDES)
 permit  issued  under section 402  of the  Clean Water Act (CWA)  is
 not  required for a zero discharge system.   In your January  JO,
 1989 letter,  you requested  a statement  from EPA confirming  that
 a RCRA  Part  B  permit is also not required  for your system.

     In  responding  to your letter, I  am  assuming that you are
 referring to an  exemption from a RCRA Part B permit  requirement
 based on the wastewater treatment unit  exemption found at 40  CFR
 264.Kg)(6)  or 265.1(c)(10).   There  has been some confusion,
 which I will clarify, regarding  the  regulatory  interface between
 the  NPDES permit of the CWA and  the  exemption  for wastewater
 treatment units  at 40 CFR 264.Kg)(6) or 265.1(c)(10) of RCRA,
 particularly where zero discharge is involved.  To  understand
 this  interface,  it helps to note that one  of the  reasons for  the
 wastewater treatment unit exemption  is  to  avoid the
 overregulation of  such  units by  requiring  both a NPDES permit
 and  a RCRA Part  B  permit for the same unit.

     To  qualify for the  wastewater treatment unit  exemption, one
 of the  criteria  which must  be  met is that  the  unit  must be part
 of a  wastewater  treatment facility which is subject to
 regulation under either section  402  or  307(b)  of  the CWA.  This
means that the facility must have a  NPDES  permit  under section

-------
                               -2-
 402,  be subject  to  an  effluent guideline issued under sections
 301  and 402  of the  CWA, or be subject to the pretreatment
 requirements of  307(b) of the CWA  (i.e., protection of human
 health and the environment is ensured by regulation under the
 CWA  rather than  RCRA).   While it  is true that a zero
 discharge system does  not require  a NPDES permit, the absence of
 this  permit  (or  an  applicable effluent guideline or pretreatment
 standard specifying zero discharge) necessitates a RCRA Part B
 permit.  Otherwise,  a  wastewater unit treating hazardous wastes
 could escape regulations developed to ensure protection of human
 health and the environment.  Although this approach may, at
 first,  be viewed as a  disincentive to developing zero discharge
 systems, a NPDES permit that specifies "zero discharge" may be
 the most appropriate alternative to a RCRA Part B permit in
 industries without  zero discharge  effluent guidelines,
 encouraging  zero discharge systems while being consistent with
 the Agency's mandate to protect human health and the
 environment.

    I  should also respond to a statement you made in your
 request  for  confirmation that a RCRA Part B is not required.
 You asked EPA to send  you a statement that a Part B permit is
 not required for a  "completely closed loop system."  I assume
 you are  referring to the exemption for a totally enclosed
 treatment facility  found at 40 CFR 264.Kg) (5) or 265.He) (9).
 As defined at 40 CFR 260.10, a totally enclosed treatment
 facility is  one  which  is directly  connected to an industrial
 process  and  which is constructed and operated in a manner which
 prevents the release of any hazardous waste, or any constituent
 thereof, into the environment during treatment.  A zero
 discharge system under the CWA does not automatically qualify
 for this exemption.  For example,  a system that uses tanks
 without covers may  not qualify because it would not restrict  the
 escape of hazardous constituents to the air.  However,  I did  not
 receive sufficient  information on  your system to evaluate  it.

    You should b« aware that State environmental regulations  are
 also applicable  and that the state may regulate such  facilities
 differently  under the  State program.  Therefore,  whether  a  RCRA
 Part B permit is required for your system may be determined  by
 the appropriate  State  agency.
1  A point source discharge  which is operating without a valid
NPDES permit is also  "subject  to" section 402 of the CWA (albeit
in violation of that  section).

-------
    Should you have any further questions, you may contact

*202)i 475-JJSier °r "     Kidwell« °f n>y staff, at


                                  Sincerely,
                                  Sylvia K. Lowrance, Director
                                  Office of Solid Waste

-------
General Facility Standards
(Subpart B)
                                  ATKl/1112/13sm

-------
9472 - GENERAL
FACILITY STANDARDS
Parts 264 & 265 Subpart B
                  ATKl/l 104/33 kp

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                                                9472.1983(01}
                 RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                                 JULY 83
\-   HOW  detailed  must  the  analysis of my waste  be  for simple
     storage  at  my Interim  status  facility?

          The  caller  1s  referred to §265.13  (General waste
          analysis).  The aaalysls must, at  a n1n1mum, contain
          all  the  Information necessary to store the waste 1n
          accordance  with Part 265.  Adequacy 1s determined on
          a case by case basis by the Regional EPA  office or
          the  State  (1f  the State has Interim authorization).
          Further  guidance can be found 1n Permit Applicant's
          Guidance Manual for General Facility Standards  fDra'ft-
          June 1983)  which  1s currently available 1n tne  EPA
          Regional libraries.

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                                                9472.1983(02)





                  RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY


                                  JULY 83
7  -  4.0CFR 264.12(6)  requires  the  owner/operator  of « hazardous
      waste management facility to  Inform  a  generator  1n  writing
      that  the  facility  has  the appropriate  perm1t(s)  for and «111
      accept a  generator's wastes.   Is  a generator required to
      receive this  written notice prior to transport?

           No,  40CFR  262.20(b)  states that wastes  transported
           offslte  nust  be sent to  a facility  permitted to handle
           that waste; a  generator  1s not  required to  ask for or
           receive  a written  notice  fro* the facility  owner/operator.
           However, a  written notice would assure  the  generator
           that he  1s  1n  compliance  with 40CFR  262.20{b).  A written
           notice would  also  avoid  the  potential problem  of a generator
           sending  waste  to a facility  which has the proper permits
           but  which has  not  agreed  to  accept  the  waste.

                Source:    Rolf H111

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                                                                            9472.1985(01)
                    RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                        MAY 85
Waste Analysis

2.  Pursuant to 40 CFR §§265.13 and 264.13, owners and operators  (o/o) of hazar-
    dous waste treatment, storage, and disposal (TSD) facilities nust obtain a
    waste analysis.  Must owner/operators use "Test Methods for Evaluating Solid
    Wastes" (SW-846)  for this waste analysis?

         Currently, EPA does not require the use of SW 816 for the required
         waste analysis pursuant to §§265.13 and 264.13.   EP\, however, recently
         proposed in  the October 1, 1984, Federal Register (49 FR 38786) to
         require the  mandatory use of SW-846 for all sampling, monitoring,
         analysis,  and testing required under 40 CFR Parts 260-271 unless
         otherwise  specified.

         Sourcest  Barbara Pace (202) 382-7703

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                                                     9472.1986(02
                         JAN 29
Dr. B. P. Dudenbostal, Director
New Jersey DEP
CN-028
436 Caste State Street
Trenton, New Jersey  08625

Dear Dr. Dudenbostali

     The Office of Solid Waste and Emergency Response has an
ongoing laboratory evaluation program for CPA laboratories
and contractors.  This program entails the periodic analysis of
performance samples using specified methods selected from those
puDlished in "Test Methods for Evaluating Solid Waste" (SW-846).

     As we promised last summer, EPA is expanding the program
and inviting the solid waste testing laboratories of State
regulatory agencies to participate.  This is a voluntary program
designed to allow laboratories to evaluate their capability to
analyze RCKA/CERCLA samples using SW-846 methods.  We feel that
a valuable side benefit of the prog ran is the information, the
Agency obtains, on how well the test methods perform in routine
use and where method improvements are needed.

   The program is structured so that it is a self-auditing
operation.  Samples are periodically sent to the designated
laboratory contact along with specific instructions and analytical
standards necessary for the analyses.  The samples range from
very simple aqueous solutions to more complex matrices character-
istic of wastes.  Participating laboratories receive four sets
of samples per year.  Each set consists of two samples, one
inorganic and one organic.  Results are submitted to CPA for
evaluation against referee values.  A report is then prepared,
and sent to you which shows both how well your laboratory
performed and how the other participating laboratories did.  No
laboratory is identified to any other laboratory.  If your
laboratory encounters problems in performing a specific test,
EPA is prepared to assist you in resolving the problems.

-------
   If you would like to your laboratory to participate  in
evaluation program, please contact Florence Richardson or rae
at (2J2) 332-4770 for more details.

                                    David Fried-nan
                                       Manager
                                Methods Proqran (WH-5621))

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                                                        9472.1986(04

           UNITED STATES ENVIRONMENTAL PROTECT/ON AGENCY
                       WASHINGTON. D.C. 204CO
l7^ ^ ^!i?
         4  JUN  86         T                    SOUOWASTE AND EMeaOENCV RESPONSE
Mr. John Richard Slate
City Attorney
Suite 204
10551 Allen Road
Allen Park, Michigan  48101

Dear Mr. Slate:

     This is in response to your April 30, 1986, letter to
Congressman John Dingell regarding the Crystal Mines in Detroit,
Michigan.  Mr. Dingell has requested that we keep you informed
of any developments pertaining to this matter.

     The Resource Conservation and Recovery Act (RCRA) allows
th<» placement of hazardous wastes, other than bulk liquids, in
salt mines if a RCRA permit is issued.  Crystal Mines, Inc.
(CMI) thus could apply now for a RCRA permit for the placement
of containerized or solid hazardous waste.  You should be aware
that neither EPA nor the Michigan Department of Natural Resources
(MDNR) has yet received an application from CMI.

     Depending on site-specific factors, however, it may be more
appropriate to consider permitting the Crystal Mines facility
under new, special regulations for "miscellaneous" hazardous
waste management units.  These rules are likely to be used for
permitting most placement of containerized or solid hazardous
waste in underground mines.  The rules will be proposed this
summer for public comment and will be issued in final form early
in 1987.

     Once a permit application is received, EPA and MDNR would
consult with each other during careful review of the application.
The consultation process provides assurance that all the RCRA
permitting requirements designed for the protection of human
health and the environment are satisfied before the permit is
issued.  These requirements include monitoring, corrective
action, closure and post-closure care, and financial assurance.
Because of the many new requirements imposed by the Hazardous
and Solid Waste Amendments of 1984, it is likely that any permit
issued to CMI would be issued jointly by EPA and MDNR.

-------
     The RCRA permitting process also includes public participa-
tion through comments on a draft permit.  Usually, the notice of
intent of a permit decision and opportunity for public comment  is
provided in local newspapers, on radio, and to local groups on
EPA or MDNR mailing lists.  The schedule for public input to the
permitting process in this case is uncertain, since we have not
yet received a permit application from CMI.

     Thank you for your interest in this important hazardous
waste issue.
                              Sincerely,
                              J. Winston Porter    t
                              Assistant Administrator

cc:  Honorable John D. Dingell
    Richard Traub, Region V
    James Roberts, MDNR

 WH-562/D.Zeitlin/bc/6-2-86/Control No: 601581/Due Date: 6/4/86
        382-4646

-------
                       cntiKUHMCN I AL fKOTECTlOh AGfeNCY
                                                 9472.1986(06
    8  JUL  86
Mr. Richard J. Gimello
Executive Director
State of New Jersey
Hazardous Waste Facilities
  Siting Commission (CN 406)
Trenton, New Jersey  08625

Dear *r. Gimellot

     Thank you for your Jun« 5, 1986 r letter regarding the
Environmental Protection Agency's (EPA's) activities on
location guidance.  You raised six major issues that I will
address.  I understand that you discussed several of thes«
issues with Christopher Daggett, Regional Administrator for
Region II, his staff, and Arthur Day of my staff in a meeting
on June 20, 1986.

     You reguested conies of the Phase I and Ph*se II documents*
I have attached the Phase I document entitled The Permit
Writers* Guidance Manual for Location of Hatardous Waste Land
Treatment, Storage, and Disposal Facilities — Phase I —
Criteria for Location Acceptability and Existing Applicable
Regulations.   However, the second document entitled Guidance
Criteria for. Identifying Areas of Vulnerable Hydrogeologv is
currently under internal Agency review and not available for
external distribution.  When this review is comoleted, the
document will be issued as an "interim final* guidance to
provide the public with the opportunity to comment,  we will
send you a copy at that time.  I have attached a summary of
these two documents (Attachment I) to clarify any confusion
that exists about the various drafts that were circulated.
In addition, I have attached Criteria for Identifying Areas
of Vulnerable Hvdrooeoloqy — Appendix D — Development of
Vulnerability Criteria Based on Risk Assessment and Theoretical
Modeling and an Executive Summary which provides the detailed
rationale for why we selected the "time of travel" (TOT)
alona a 100-foot flow line
     Your major concern centered on EPA's rationale  for pro-
posing the TOT.  We selected TOT^oO for three reasons:

       (1)  it identifies locations where plume  sise will  be
            minimized!

-------
        (2)  it identifies areas that minimize potential for
            exoosure to releases occurring in the absence of
            monitoring and response; and

        (3)  it is useful in recognizing three potential
            exposure pathways.

     you also ouestioned how the TOT method applies to coastal
states  like New Jersey.  EPA is currently developing a strategy
to decide how the numerous RCRA regulatory provisions pertainino
to ground water should interrelate.  One of the questions the
strategy will address is how the vulnerable hydrogeology
guidance should be used, i.e., how vulnerability under the
TOT method should affect a siting decision.  The strategy
should  be completed by this fall and will be publicly available.
I want  to stress, however, that the vulnerable hydroqeologv
guidance is not "location outdance" in the sense that it
prescribes where facilities may be sited.  The document only
describes a method by which vulnerability can be assessed;
it does not dictate what siting decision should be made
based on the results of the assessment*

     You asked if the compendium of sitino criteria is completed
and if  so was it used to develop the Guidance Criteria for
Identifying Areas of Vulnerable Hydrogeology.  We have completed
the compendium and produced a report entitled Review of
State siting Criteria for the Location of Hazardous Waste
Land Treatment, Storage and Disposal Facilities"!  I understand
my staff provided you with a copy of this report earlier.
This report states that there seems to be no consensus among
states  that use a TOT concept; appropriate values for travel
time ranged from 3 years to reach off-site wells to 1000
years to reach an environmental pathway*  Also, states empha-
sized that disposal units should be located in low permeability
soil (examples ranged from 10-6 to 10.8 cm/sec)*  These two
points  indicated to us that our vulnerability criteria were
well within the scope of many state siting criteria.

     Finally, you suggested that we conduct a management-
level review of the suitability of New Jersey's siting
criteria.  We are currently reviewing the New Jersey Siting
Criteria document you enclosed and will provide you with
comments- by late July.

     Please understand that our vulnerable hydrogeologv
guidance is just that* guidance.  Our next step, in response
to RCRA Section 3004(0)(7), is to develop location regulations
annlicar>le to new and existing hazardous waste treatment,
storage, and disposal facilities,  we will keep you informed
as these standards are developed, proposed, and finalised
over the next two vears.

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 you have any further  ues     "      l'US vou
If
                               Sincerely,
                                 Wintton Porter

                              Assistant Administrator
                             i
Enclosures
WH-562/MCMANUS/D.ZEITLlN/8ld/7-2-« *   ,
                382-4651/DSi  Date:      r01  W°"   SWER-09159

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                         ATTACHMENT 1

I.  The Permit Writer's Guidance Manual For Location of
Hazardous Waste Land Treatment, Storage and Disposal Facilities
— Phase I

     o  Published in draft final in February of 1985

     o  Written prior to the Hazardous and Solid Waste Amendments
        (HSWA)

     o  Describes five criteria for an acceptable location
        and cites existing applicable regulation* under RCRA
        and other Federal laws

II.  Guidance Criteria for Identifying Areas of Vulnerable
     Hvdroqeoloqy

     o  Formerly known as Phase II Guidance

     o  Satisfies the statutory requirement (3004)(0)(7) of RCRA
        as amended by HSWA that EPA develop Guidance Criteria
        that defines Vulnerable Hydrogeologies

     o  Assesses site vulnerability by apolyinq the time-of-
        travel (TOT) of around water along a 100-foot flow line
        (TOT 100) oriqinatinq at the base of a hazardous
        waste unit.

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                9472.1987(01)
 JIN 2 4 1987
MEMORANDUM
SUBJECT;
FROM;
TO:
Determination of Operator -at Government -Owned
Contractor-Operated (GOCO) Facilities

Gene A. Lucero, Director  ' '
Office of Waste Programs Enforcement
          Marcia  E. viiii»f«s,  Director
          Office  of Solid Waste
Waste Management Division Directors
Regions I - X
     The purpose of this memorandum is to clarify who should
sign as the operator on permit applications for Government-
Owned Contractor-Operated  (GOCO) facilities.  Earlier guidance
(s«e attached memo) had recommended that the Regional office
consider the role of the contractor in the operation ot the
facility before determining who should sign the permit appli-
cation.  We also noted that in some cases where the contractor's
role is less precisely defined the Region should exercise
judgment given the factual situation.

     It appears that there is still so*e confufrlon reiardinn
signatories for permit aprl leaf. ions*,  vhenev^r a contractor or
contractors at a governner,t-owne<< facility, are responsible or
partially responsible for the operation, management or oversight
of hazardous waste activities at the facility; they should sign
the permit as the operator(a).  In some instances both the
Federal agency and the contractor(s) are the operators and
multiple signatures to that effect would be appropriate.  A
review of the) facility's operating records* contingency plans*
personnel training records, and other documents relating to waste
management should indicate who the operator(s) are.  As a general
rul<», contractors will meet this test and therefore in post
situations sfeottld be required to sign the permit application.

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                                 -  2 -
     If you have any cue st ions  D lease  contact Jim KichaeJ, Or tic?
Golif; i-.a«t- »t .W'7S  JP2-2221 or  Anna  Uinc*n.  Cf.tlce of t.'a.ste
Enforcemort at FTS  382-4829.
cc:  Bruce M»
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             UH'-«0 STATES BMVIRONKENTAL PHOTECT^S ACIHCY  9472.1988(01)
 JUN   2  1988-

 Thomas J. Dolce, P.E.
 Principal Engineer
 Applied Environmental Technologies Corp.
 7 Belver Avenue, Suite 210
 Quonset Point, Rhode Island  02852

 Dear Mr. Dolce:

    Your letter of April 18, 1988 asks for a regulatory
 interpretation regarding the security requirements of 40 CFR
 264.14(b).  I will provide you with the Federal interpretation,
 however, I also want to refer you to the States where your
 facilities are located, for the States' interpretation.

    The RCRA/Superfund Hotline was correct in indicating that
 if all hazardous waste storage and treatment occurred within a
 facility's building, then the walls of the building would
 constitute compliance with the artificial barrier requirement
 in 40 CFR 264.l4(b)(2)(i).  Further, 40 CFR 264.14(b)(2)(ii) is
 satisfied when all entry doors are locked at all times with
 entry strictly controlled through the main plant entrance, as
 you suggest.  However, the phrase "strictly controlled" should
 be fully described, with examples relevant to the facility, if
 you are preparing a Part B permit application.

    The "Permit Applicants Guidance Manual for  the General
 Facility Standards of 40 CFR 264", SW-968, August  1983
 (available through the Hotline), supports our regulatory
 interpretation by stating that "26.4.14 (b) is satisfied  if  the
 active portion is located within a facility or  plant  which
 itself has a surveillance system, or a barrier  and a  means to
 control entry."  The guidance goes on to say that  "the
 requirements for signs in 264.14(c) would still be applicable."

    I WJJS* you to also ask the state hazardous  waste  agency
which •Buta in* jurisdiction over the facility(ies) of  concern
to yoa-fbr an interpretation of the State security
 requirements, using the same description as was included in
your April 18th letter.  The State, in most likelihood
 (especially in New England), is the authorized  permitting

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authority who will be issuing the facility's permit.  In some
cases, the State's hazardous waste regulations are more
stringent or broader-in-scope than the Federal requirements.  A
list of State hazardous waste agencies is attached for your
use.

    If you have any further questions about the Federal RCRA
requirements, please contact Chester Oszman at (202)382-4499.

                                  Sincerely,
                                  Bruce R. Weddle
                                  Director
                                  Permits and State Programs
                                    Division
Attachment

cc:  Chester Oszman, OSW

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                                                                      9472.1991(01)
 NOTE


 SUBJECT:   Location Standards for Hazardous Waste Management Facilities

 TO:         BobKnox ^

       You recently requested information on our hazardous waste facility siting
 requirements in response to a request by Gordon Binder, who is concerned about
 potential, environmental equity issues in the siting process.  The following is a summary
 of our current siting requirements and an overview of new standards that are being
 developed. Both current standards and those under development are based on technical
 suitability of a site; economic or other factors are not considered. Historically,
 hazardous waste units have been associated with industrial manufacturing plants.  The
 siting of these plants is controlled by local zoning requirements.

       EPA currently has limited regulatory restrictions for the siting of hazardous waste
 treatment, storage, and disposal facilities (TSDFs). These siting restrictions are based on
 the sensitivity of the environment; they restrict TSDFs from locating in 100-year
 floodplains and areas prone to severe earthquake damage in certain parts of the western
 United States.

       The Agency, however,  is currently developing  more restrictive siting criteria for
 TSDFs. These more restrictive criteria will also be based on the sensitivity of the
 environment  Certain very environmentally sensitive locations will be subject to absolute
 siting prohibitions. New and  expanding TSDFs will be prohibited from siting in
 wetlands, in historic migration zones of rivers and coastal waterways, and directly over
 active seismic faults.  The proposed location standards will  also place additional
 conditions and restrictions on TSDFs in unstable areas, areas susceptible to earthquake
-damage anywhere in the United States, karst terrane (limestone areas prone to sinkhole
 development), hydrogeologically complex  areas, and areas over high-resource-value
 ground waters (e.g. drinking water areas).  Additional requirements in these sensitive
 location:; include either technical or health-based demonstrations by the owner or
 operator of the TSDF. Technical demonstrations would generally involve engineered
 modifications to the environment or to the unit that would  mitigate against the location-
 specific hazard.

       EPA is not alone in recognizing the need for TSDF  location standards in certain
 sensitive locations. To date, 38 states have either proposed or promulgated location
 standards that are more stringent than the Agency's current siting standards.  Some of
 the States' siting standards are even more stringent than what the Agency is proposing.
 For example, the State of South Carolina also requires TSDF siting setbacks from
 schools and waterways.

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      The specific location selected for a TSDF is a local decision. However, because
EPA regulations are based on the technical suitability of a site and not on economic or
other factors, they ensure that the selected TSDF site is protective of the environment.
Furthermore, the EPA and State permitting process ensures public participation in
establishing the conditions for the TSDF, including its location, design and operation.

                                    JeffDenit

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Preparedness And Prevention
(Subpart C)
                                 ATKl/1112/14sm

-------
9473 - PREPAREDNESS
AND PREVENTION
Parts 264 & 265 Subpart C
                  ATKl/l 104/34 kp

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Contingency Plan And Emergency
Procedures (Subpart D)
                               ATKl/1112/15sm

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9474-
CONTINGENCY PLAN
AND EMERGENCY
PROCEDURES	
Parts 264 & 265 Subpart D
                ATKl/l 104/35 kp

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                                                               9474.1984(01)
                     PERMIT POLICY  Q * A REPORT

                        CONTINGENCY PLAN

                       SEPTEMBER 10,  1984
        Starr »rr!»
1.  r.ucstion:  For a new facility, can information for the contingency
plan, such as arrangements with local authorities, be submitted
at a date later than sutnission of the rent of the Part P? 40 CF3
suspart D, S27u.l4(b)(7);

Ansv/eri  Mo.  If the applicant has done enough planning to support
obtaining a WCRA permit, he should nave sufficient information to
attorpt to nak« arrangements with local authorities and draft an
adequate contingency plan.  Only those arrangements agreed to by
local authorities need to be described in the contingency plan*
If t:no applicant's efforts were unsuccessful, these nust be
documented separately, according to $162.37(b), and, in this caso,
th* contingency plan does not need to address arrangement* with
loc«l authorities.  Also, under $264.51(<2), information regarding
the specific emergency coordinators nay be subnitted after the
tia«> of application.

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Manifest System, Recordkeeping
And Reporting (Subpart E)
                                ATKl/1112/16sm

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9475 - MANIFEST
SYSTEM, RECORD
KEEPING AND
REPORTING
Parts 264 & 265 Subpart E
                 ATKl/l 104/36 kp

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                                                           9475.1984(01)




                     RCRA/SUPERFUND  HOTLINE  MONTHLY  SUMMARY

                                        APRIL 84
2.  a) Us a generator required to keep copies of biennial  reports  and manifests at the
    site?  The RCRA definition of generator 1s site specific.

    b) Is a TSOF required to keep copies of manifests and  biennial  reports on site?

         a) 262.^0 dots  not specify that a generator must  keep copies of manifests
         *nd biennial  reports on site.  Copies of both can be  kept  at corporate
         headquarters.   It must be noted, however, that 3007(a)  of  RCRA states that
         a generator must be able to provide to EPA or duly designated personnel
         information on  or access to records regarding waste management.
         b) 265.71(a)(5)  requires TSOF's to retain copies  of  manifests on sUe for
         at least three years from the date of delivery.  265.74(a)  stites that all
         required records must be furnished upon request and  made  available for
         Inspection  by EPA personnel.  Biennial reports are required records.

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                                               9475.1985(01)
            RCRA/SUPERFUND  HOTLINE  MONTHLY SUMMARY

                            SEPTEMBER  85
waste Minimization Certification

3.  A shipment of  hazardous wast* is initiated on or after September 1,  1985, 3y a
    Cully-regulated generator.   The manifest dees not contain the waste minuiizaticr.
    certification  as required by Section  3002(b)(i) of iOA.  The owner/operator
    of the designated treatment, storage  or disposal facility (TDSF) receives the
    waste shipment unacconpanied by the waste minimization certification.  May the
    owner/operator accept  the waste shipment? Is the owner/operator required to
    noctry ene State oc  Region about the  incomplete manifeec?

    Section S265.~2(b) requires the owner/operator of a TSDP, upon discovering a
    •significant  (manifest)  discrepancy/*  to first attempt to reconcile the discre-
    pancy with the generator.   If the discrepancy cannot be reconciled in fifteen
    days, then the owner/operator most notify the Regional Administrator.  However,
    •significant discrepancies" as defined in 5265.72(a) are:  •(!) for bulk waste,
    variations greater than 10  percent in  weight and (2) for batch waste, any varia-
    tion  in piece  count."  The owner/operator must notify the Regional Administrator
    only  for unreconciled  significant discrepancies.  The owner/operator need not
    notify the Regional  Administrator since waste shipments unacccnpanied by a
    waste minimization certification are not significant manifest discrepancies.

    Sourcei     Nark Greenwood (202)  382-7703

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                                 OCTOBER 85
                                                        9475.1985(02)
                                               nerators.  and the
A small quantity generator (9QG) of less than 100 kg/nonth sends the waste  to  a
facility -tuchis registered by the State to managefstore)  solid
State-registered storage facility accepts wastes fron other  Sail

Si^T^^O^g^,1^^^ ** ** C°"~^ «S —  «•  a **
 (a) is .T\anifesting required at all
 
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                                                       9475.1986 (Dial
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                     WASHINGTON, O.C. 20460
                          30
                                             30. J
                                                        -MEBGENCY MS»ON:
Honorable Rudy Soschwitz
United States Senator
210 Bremer Buildinq
419 N. Robert Street
St. Paul, Minnesota  55101

Dear Senator Boschwitz:

     Thank you for your September 16, 1986, letter regarding
your constituent, Mr. win Sabatka, President of Finishing
Equipment, Inc.  In the correspondence which you enclosed,
Mr. Sabat-ka raised several Questions about the application of
Minnesota's hazardous waste program to Finishing. Equipment1 s
operations.

     Minnesota has been authorized to implement, and enfo'rce
the Federal Resource Conservation and Recovery Act (RCRA)
program in lieu of the Environmental Protection Agency  (EPA)
since February 1995, Mr. Sabatka1 s concerns, therefore, are
most appropriately addressed by the Minnesota Pollution
Control Agency (MPCA) with whom he has been corresponding.
Nevertheless, we have spoken with EPA Region V and MPCA
representatives to try to clarify the situation.

     with respect to Finishing Equ lament's manifests, Mr.
Sabatka stated in his letter to you that the waste was
"properly manifested as [waste] F001*.  While the waste was
correctly identified bv tho F001 categorv, MPCA has informed
us that it was incorrectly described as waste oil, rather
than as still bottoms*

     Mr* Sabatka also stated that he does not believe Finishing
Equipment's operations are subject to the financial assurance
regulation**  From the information we have obtained, it
appears that Finishing Eau lament is a storage facility, as
defined in both the EPA and MPCA requlations.  Consequently,
the owner or operator of the facility must comely with  the
financial responsibility regulations (amonq others).  The
Federal financial requlations were published in large part on
April 7 and 16, 1982.  Cooies of these rules, along with a
summary of them, are enclosed.  EPA also made minor changes
to the rules on May 2 and July 11, 1986, but these are  not
yet effective in Minnesota.  Otherwise, Minnesota's financial
rules are subtantially equivalent.

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     I hooe this response is helpful.  Please feel free to
contact Matthew Straus on (202) 475-8551 or Carole Ansheles
on (202) 382-4761 of my staff if you have any further
Questions on manifesting or financial responsibilities,
respectively.

                                 Sincerely,
                                 J.  Winston Porter
                                 Assistant Administrator

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                                                                9475.1987(01)
              RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                APRIL  87
1.  Storage Prior to Recycling

    According to the hazardous waste  recycling  regulations promulgated
    as part of the January 4,  1985  rule  (50 FR  614), owners or operators
    of facilities that  recycle materials without prior storage are
    subject only to Section 3010 notification requirements and S265.17
    and §265.72 manifest  regulations  per $261.6(c)t2). -Do the two
    following recycling operations  involve storage prior to recycling?

    (a)  Truck drivers  with bulk shipments or drums of spent solvent
         pour the solvent into a receiving bin  at a recycling
         facility.  The receiving bin is directly harc'-piped to
         the distillation unit, such  that the receiving bin feeds
         the distillations unit.  Ctoen the distiller is non-operational
         (at night),  some waste solvents may remain in the feed tank.

    (b)  As in the first  situation, bulk shipments or drum of spent
         solvent are poured into a  receiving device at a second
         recycling facility.  The receiving device is essentially a
         tank with a pump in the bottom which is connected to a
         large tube that  directly feeds  into the distillation unit.
         The pump is in operation whenever there is waste in the
         tank.  Therefore,  the tank never contains solvent when the
         distillation unit is not in  operation.

         (a)  Although  there is no  time  limit for storage, the two
              recycling facilities are fundamentally different.  The
              first recycler uses the receiving bin to store waste
              when the  distillation unit is not operating.  Per
              S261.6(c)(l), he is subject to the storage standards.

         (b)  In the case of the second  recycler, he does not use the
              receiving bin for storage.  His receiving bin is more
              clearly used only for conveyance, not storage.  The bin
              is more directly tied to the operation of the recycling
              unit and  indeed, could  be  viewed  as part of the
              recycling unit.  Hence, the second recycler would only
              be subject  to S261.6(c)(2J  (i.e., getting an EPA 10
              number and  complying  with  the manifest standards.)

         Source:     Matt  Straus    (202)  475-8551
         Research:  Kim Gotwals

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                           FEB   9 1989                  9475-
Dear Facility Manager:

     As required by the Resource Conservation and Recovery Act
(RCRA), the U.S. Environmental Protection Agency (EPA) must
submit a report to Congress on the generation and management
of large-volume solid wastes from mineral processing
facilities,  within six months after submission of the report
EPA must then determine which of these wastes will remain
exempt from RCRA hazardous waste management (Subtitle C)
regulations.  We are asking for your assistance in gathering
the necessary information for the preparation of the report to
Congress and the subsequent regulatory determination.

     We have enclosed EPA's National Survey of Solid Wastes
from Mineral Processing Facilities.  Please complete and
return the questionnaire within 45 days of the date you
receive it.  Your response to the survey is required under
Sections 3001 and 3007 of RCRA.  Failure to respond may result
in a fine or other penalties under Section 3008 of RCRA.  We
have included some important details about Confidential
Business Information as an addendum to this letter.  Please
read this information carefully before responding to the
survey.

     Section 8002(p) of RCRA directs EPA to study various
factors as part of the report to Congress on large-volume
mineral processing wastes, including sources and volumes of
wastes, current waste management practices, alternative waste
management practices and their costs, and documented damage
and potential risk to human health and the environment from
waste management practices.  Consequently, the questionnaire
requests information on the large-volume mineral processing
wastes (which are called SPECIAL WASTES in the questionnaire)
from the point of generation to their ultimate onsite or
offsite disposition, including all intervening steps.

     The survey is composed of three booklets.  The first
booklet contains instructions and definitions for use in
completing the questionnaire.  The second booklet contains the
questionnaire itself.  The third booklet contains extra sets
that you may need to complete.  Please read the instructions
thoroughly and carefully before attempting to complete the
questionnaire.

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                             - 2 -

     The questionnaire itself contains nine sections:

Section 1, general information on the entire facility.

           processing units that GENERATE a special waste.
Section 2,

Section 3,


Section 4,


Section 5,



Section 6,


Section 7,



Section 8,
Section 9,
processing units that RECEIVE a special waste (or
its residue).

wastewater treatment plants that RECEIVE a special
waste (or its residue).

surface impoundments (including tailings ponds and
lagoons) that RECEIVE a special waste (or its
residue).

other waste management units that RECEIVE a special
waste (or its residue).

environmental monitoring in proximity to special
waste management units that RECEIVE a special
waste (or its residue).

general information on waste management units not
covered in Sections 5 and 6.  (Since any facility
subject to Subtitle C requires corrective action at
any onsite solid waste management units causing
environmental problems,  an inventory of each
facility's solid waste management units is
necessary for assessing the economic impact of such
a designation.)

contact person at the facility in case follow-up
information is needed, and instructions on
returning the completed questionnaire.
At the end of the questionnaire are lined pages labeled
"FACILITY NOTES'* for you to use in clarifying or explaining
your answers, if necessary.

     EPA appreciates your efforts to provide timely and
accurate information and looks forward to your response.  If
you have any questions about the survey, please call the
toll-free survey helpline (1-8OO-635-8850).  If you are unable

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                             - 3 -

                             ' you may cau ** Hau  °f
                          Sincerely,
                          Sylvia K. Lowrance
                          Director
                          Office of solid Waste
Enclosures

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Closure And Post-Closure
(Subpart G)
                                 ATKl/1112/17sm

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9476 - CLOSURE AND
POST-CLOSURE
Parts 264 & 265 Subpart G
                  ATKl/l 104/37 kp

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                                       OSWER DIRECTIVE * 9476. 0>12
             UNITED STATES ENVIROf JMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
Ft3 2  IC*JU                                                OFI-ICEOF
                                                 SOLID WASTE AND SMF.RCENCY IUSPONSC
        ,.                                .                       . • -,_••*-..;.,

 MEMORANDUM
       t

 SUBJECT:  Closure Requirements
                     M

 FROM:    ..Marcia E. Williair.s

          ' Director
                    '    „//•*•
              iair.s  (lA'^n^^
Director            t   u       •
Office of Solid Wa^te  !WH-563)'"
 TO:       David A. Wagoner
           Director
           Waste Management  Division
           EPA, Region VII


      This memorandum is  in  response to your memorandum of
 December 17,  1987, which poser)  ei number of questions related to
 implementation of the closure regulations.  As you know, we
 have discussed the issues over  the phone with you several times
 since receiving your memo,  both in the context of general
 policy, and also in the  context of applying these policies to
 specific situations.'  Wa have responded to each point in turn.

 Response to point 1:
                 • •
                 • >
      Tour question concerns the consistency between the new
 tank system regulations  (51 Efi  25422, July 14, 1986), which
 include post-closure'care,  and  the closure requirements for
 container storage units.  Since we have now revised the tank
 system standards as of July 14, 1986, we recognize that there .
 are inconsistencies with the present container standards.  Me
 agree that the container storage requirements in Subpart I ^f
 40 CFR Part 264 and 265  should  be revised so that the Agency
 will have-a consistent overall  policy for closure of storaae
 .and treatment units.
                   •                    '

 Response to point 2:

      You requested guidance or.  whether the clean closure policy
 for surface impoundments contained in the March 19, 1987
 Federal Register notice  can bo applied to all hazardous waste
 management units in Iow_. (which does not have final RCRA

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                                       OSWER DIRECTIVE 4 9476.00-12
authorization) ...-The clean closure policy that was contained in
the March 19r 1987 Federal Register should be applied to
closures by removal of wastes from any RCRA regulated unit.
Regulated units include landfills, surface impoundments, waste
piles, and land treatment units.  The regulatory language
governing the level of cleanup described in each of the
following-sections, 26' ,197, 264.228(a), 264.258U), 265.l?7,
265.228'(a)v and 265.258ia), is identical.  Since the
consequences of .achieving clean closure are the same,
regardless of type of-unit, the general policy contained in the
March 19,-1.987 EB notice, and the specific details regarding
the setting of cleanup levels in each medium that are contained
in the1 upcoming. "Surface Impoundment CleaA^Closure Guidance-
Manual", should be applied consistently to all units that close
by removal-of wastes.  Another guidance document, "Clean  ';
Closure of 'Hazardous Waste Tank Systems and Container Unitf",
is currently being developed.  It is consistent with the manual
for clean closure of surface impoundments; differing only \rnere
necessary because of the unique nature of tank systems and
containers.

     As stated in the March 19, 1987 preamble, clean closure
cleanup levels are to be based on Agency-approved health based
limits, rather than background, except where no such
Agency-approved limit exists, and then background may be used
as the basis for settir? cleanup levels.
               "."'
Response to point 3:
                 *t
     As currently' envisioned, the proposed changes to the
closur*e regulations would allow a landfill to defer closure to
manage non-hazardous wastes only if certain demonstrations are
made.  Key among these is that managing non-hazardous wastes
will not be incompatible with prior management practices.  The
preamble will include a discussion of potential incompatible or
detrimental effects which are to be considered in evaluating a
request to defer closure.  For landfills these, concerns
include: subsidence, increased leachate formation, cap
settlement and gas production.  These potential detrimental
effects could support a finding of incompatibility, which would
be grounds for disapproving a deferred closure request.
              0
     This rule change will not affect enforcement actions.  The
opportunity to defer closure will be afforded to both permitted
and interim status units.  Facilities with units which have
lost  interim status can receive an operating permit which
includes the LOIS unit.  Waste receipt would not be allowed  in
the LOIS unit prior to permit approval.

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                                        OSWER DIRECTIVE # 9476.tJ-12
                               "3-

Response to point 4

     You have requested guidance on the issue of whether
changes may be made at facilities operating without a permit or
interim status and LOIS .(loss of interim status) facilities
under section 270.72 v,at_a necessary to comply with corrective
action.and closure plans.  This issue was raised in the context
of tiie rule, proposed on August 14, 1987, 40 CFR Parts 265, 270
and 271 entitled "Changes to Interim status and Permitted
Facilities for Hazardous Waste Management; Procedures for
Post-Closure Permitting; Proposed Rule".  We are currently
considering this issue and will address it,,in the final rul =
scheduled for Summer 1988.                "~
        . •       * •
Response to point. 5 •
            »  *
     Your first question, in 5a and b, concerns your
interpretation of 40 CFR Part 261 and the March 19, 1987
Federal Register notice, as they apply to wastes resulting from
closure."Your interpretation is correct.  As you stated, a
characteristic waste must be managed under Subtitle C unless
the material no longer exhibits any of the four characteristics
specified in Part,.261, Subpart C.  It would not be sufficient
to merely demonstrate that the materials no longer exhibit the
one or more characteristics that had originally brought the
waste under Subtitle G regulatory control.  A waste that is
listed as hazardous under Part 261, Subpart D, and any waste
residues or contaminated soil or debris that are removed from a
unit during closure operation:;, are considered to be hazardous,
unless the waste''materials have been delisted, in accordance
with Section 261.3.

     Your first bullet point within point 5 referred to hov
DOD/DLA  (Department of Defense/Defense Logistic Agency)
recommends, in their "Conforming Storage Model RCRA Permit
Application" (which accompanies their model permit), to
determine whether or not decontamination washwater at a site is
hazardous.  As mentioned above, the determination should be
based on whether or not the waste exhibits any of the four
characteristics specified in section 261.20.  TOC and TOX are
indicator parameters only.  Therefore the DOD/DLA Model Permit
Attachment for'Closure is incorrect when  it implies that the
concentrations of TOC and TOX define whether or not washwater
is hazardous.

     EPA has commented on this closure plan application
extensively. DOD, however, has,not responded to all of our
comments on the model permit.  Therefore, as we said in thn
August 8, 1987 cover memo to the model permit, EPA may request
different or additional  information if a  permitting author.ty

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                                        OSWER DIRECTIVE * 9476.00-12
finds part or alX.'of the model permit application to be
inappropriate..,  Copies of both the cover memo and EPA's
comments on DLA's conforming model permit application are
attached for your refer-'.ice.  Please note EPA comments
regarding waste analysis and the closure plan.  We recommend
that you use the recent draft report, "Clean Closure of
Hazardous Waste >Tank Systems and Container Units" instead as a
guide to'closure.

     Your second bullet point within point 5 asked why, in
certain situations, non-hazardous material must be removed from
a landfill for clean closure, but tnen could conceivably be
re-depoSited legally in a sanitary landfill'.*-  We share your
concern that this could be viewed as an inconsistency within
our regulatory program.  Two regulatory efforts, however, are
currently underway which should address this potential
problem.  You alluded to the first effort, redefining hazardous
waste, in your memo.

     As we'move more towards concentration-based listings,
inconsistencies may occur less often.  You should
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                                        GSWER DIRECTIVE rt 9476.0C-12
                                -5-
Attachments
cc:  Luetta Flournoy, Region  VII
     Matt Hale; QSW
     Margaret -Schneider,  osw
     Jim Bachmaier, OSW
     Chet'Oszman, OSW
     Bill Kline, osw
     MiJcer-Petruska, OSW
     Chris'Rhyne, OSW

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* •_«•  i
1535;
 •vt    ,\*^
                                       OSWER DIRECTIVE *  9476.00-13
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
           WASHINGTON. D.C.  20460
    MEMORANDUM

    SUBJECT:  Regulatory  Interpretation of the Closure
              Performance Standard   ^

    FROM:     Marcia Williams, D
                             /

                            fU^/u -J**-
                            '   ™
              Office of Solid Waste   >  \\
                                     / '  * ' i        r
                                     u   /
    TO:       William Miner, Chief
              Solid Waste Branch, Region V

         In your memorandum of  December 31,  1987 you  requested our
    views on whether the closure performance standard (264.111 and
    265.111) could be used to require  source control  at two
    particular surface  impoundments  which the owner/operator wishes
    to close as landfills.  Our response to  your question  first
    addresses the issue in a general way and then turns to your
    specific question concerning the two surface impoundments.

         The general performance standards and  the technical
    standards complement each other, and both must be complied with
    (See 51 IB 16424).  Where the unit-specific technical  standards
    provide detailed instructions, those procedures should be
    followed.  In exceptional cases  where unit-specific standards
    may not be enough to minimize or eliminate  post-closure escape
    of hazardous constituents,  you should look  to the closure
    performance standard for authority to require additional
    control measures.

          In addition,  the preamble  to the March 19,  1985  Proposed
    Rule for Standards  Applicable to Owners  and Operators  of
    Hazardous Hast* Treatment,  Storage, and  Disposal  Facilities  (a
    Final version of the Rule was published  on  May 2, 1986) states,
    in 51 a 11070, that

          "the amendment explicitly  requires owners or operators of
          TSDFs to comply with  both  the general performance
          standard and  the applicable process-specific standards.
          Owners or operators must close their  facilities  in  a
          manner that complies  with  applicable  process-specific
          requirements  where specified;  the general  performance

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                                      DIRECTIVE * 9476.00-13
                               -2-

     - standards apply to activities that are not otherwise
      addressed by the process-specific standards but are
      necessary to ensure that the facility is closed in a
      manner that will ensure protection of human health and
      the environment."

     The final rule for Closure, Post-Closure and Financial
Responsibility Requirements (May 2, 1986) further states, in 51
£B 16424, that TSDFs must "comply with both the general
performance standard and the applicable process-specific
standards."

     These authorities support your position that the closure
performance standard can be used as a basis for requiring
source control when necessary to achieve this standard.  40 CFR
Subpart G, Sections 264.112 and 265.112 requires a description
of how each unit and facility will be closed in accordance with
Sections 264.111/265.111 (see Sections 264.112/265.H2(b)(l)
and (2)).  Section 265.112(b) in particular, requires that the
closure plan include "a detailed description of other
activities necessary during the partial and final closure
period to ensure that all partial closures and final closure
satisfy the closure performance standards, including, but not
limited to, ground-water monitoring, leachate collection, and
run-on and run-off control."

     Your memorandum indicates that hazardous constituents may
migrate into ground water because the water table may come into
contact with the bottom of the unit.  The closure requirements
at 264.228/265.228 were designed to minimize infiltration
through the cap.  Therefore the problem identified in this case
is not addressed by the design-specific requirements, and the
264.111/265.111 performance standard can be invoked to require
additional actions.

     It is also important that the closure process is
consistent with any corrective action process that may be
required in the future.  In the case of these two surface
impoundments, your memorandum indicates that releases are
currently occurring and that these releases would not be
minimized if closure were performed with significant amounts of
waste in place.  Corrective action to address such releases
could necessitate removal of the waste.  If this occurred after
capping, the action would be seriously complicated and
substantial resources would have been wasted on the cap.

     An alternative approach to using the closure performance
standard as a tool for obtaining environmentally sound closure
and to address releases, would be to use a post-closure  permit
and/or a 3008(h) order issued in conjunction with closure plan
approval.

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                                  OSWER DIRECTIVE *  9476.00-13
                               -3-

    In conclusion, it is the Region and/or the state's choice
(depending on which level of government is authorized to
implement RCRA) as to which tool is used.  Clearly the
regulations allow the use of the general performance standards
post-closure permits or 3008(h) orders to ensure that
facilities close in a way that is protective of human health
and the environment.
cc:  Robert Swale, Region V
     Lee Tyner, OGC
     Chris Rnyne, OSW
     Jim Bachmaier, OSW
     Lauris Davies, OSW
     Regional Division Directors

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                                                                         .00-13
                     UNITED  STATES  ENVIRONMENTAL PROTECTION AGENCY
                                       REGION V

   MTE:   31-DEC 1987

SUBJECT:  Regulatory Interpretation of  the  Closure  Performance Standard
            For Surface Impoundments  At  GMC/ Harrison Radiator, Dayton, Ohio

   FROM:  William Miner,  Chief
          Solid Waste
     TO:   Hard a Williams,    rector
          Office of  Solid Waste

          The Closure Performance  Standard  under  §40 CFR Part 265.111(6) calls
          for the Owner/Operator to  close the  facility 1n a manner that "Controls,
          minimizes  or eliminates....post closure escape of hazardous waste,
          hazardous  constituents,  leachate,  contaminated run-off, or hazardous
          waste decomposition products  to the  ground or surface waters..."  GMC
          Harrison Radiator  has proposed the closure as a landfill option for
          their regulated surface  Impoundments; which, we contend, will not meet
          the closure performance  standard  as  defined above.  We believe that
          proposed method of closure will not  provide adequate protection against
          the release of hazardous constituents to the groundwater underlying the
          facility;  and, as  such,  does  not  provide adequate protection for* human
          health and the environment, as called for under the Closure Performance
          Standard.

          The facility has two surface  Impoundments which received a variety of
          hazardous  wastes beginning with the  "South Lagoon" constructed in 1966,
          and the "North Lagoon" which  was  constructed 1n 1972.  Both lagoons
          accepted wastewaters containing halogenated solvents, which in the case
          of the North Lagoon, has compromised groundwater quality to a signifi-
          cant degree.

          Recent groundwater quality assessment data for the North Lagoon has
          revealed concentrations  of halogenated  solvents which exceed the Maxi-
          mum Concentration  Limits for  drinking water by an average of twenty
          times.  It 1s also believed that  the South Lagoon 1s affecting ground-
          water quality as wtll, but It 1s  unknown at this tint the concentra-
          tions of any specific hazardous constituents.

          The Exposure Information Report  (EIR),  completed for the regulated
          units at tht GMC facility, concluded that the proposed method of clo-
          sure My not minimize the  production of leachate which will occur as a
          result of  groundwater Infiltration Into the stabilized wastes.  In
          particular, page 47 of the EIR states,  "It Is assmtd that water levels
          will  rise  when pumping of  (tho) county  walls Is discontinued, with
          gradients  and water levels returning to near historic (prepumping)
          conditions. Mater levels  may rise to elevations abovt those of the
          bottoms of the lagoons...

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                                    -2-


As such,  it  Is possible that some of the recompacted sludges contained within the
closed  facilities may be below the water table.  This could result in leaching of
the wastes..."

We do not believe that GMC can adequately demonstrate that they can minimize or
eliminate the post-closure escape of hazardous constituents to the groundwater (as
required  by  the Closure Performance Standard) simply due to the expectation that
the stabilized wastes will lie within the aquifer after closure has been completed.
Also, the presence of groundwater contamination from the impoundments leads us to
believe that simply capping the impoundment will not alleviate the problem.  We
propose that GMC has only two options for the regulated impoundments: 1) GMC must
remove  the wastes presently in the impoundments and dispose of them off-site or;
2) Remove the wastes from the present units and construct a doubly-lined landfill
unit in its  place, and construct the unit at least one meter above the highest
expected  groundwater elevation.  We believe that these methods of closure will
adequately meet the closure performance standard, since they will demonstrate that
the post-closure escape of hazardous constituents to the groundwater has been
thoroughly minimized.

We request that a determination be made by your office concerning our argument that
the intent of the closure performance standard precludes closure as a landfill.  In
any event, we will be pursuing corrective action either 1n a postclosure permit or
with a  3008(h) order.  However, if we can require excavation through the closure
process,  appropriate action can be started much more quickly.  Approval  of this
closure plan 1s a 3rd Quarter FY '88 commitment by the Region, and we have tenta-
tively  scheduled a meeting with GMC to discuss these closure concerns for mid-
January 1988.  Therefore, we request that you respond to this memo by January JO^
1988, so that we can be prepared when we meet with the facility.

Specific questions concerning the facility can be answered by Robert Swale, the
closure plan reviewer for this facility.  Mr. Swale can be reached at FTS 886-6591.


cc:  Anthony Sasson, OEPA
     Randy Meyer, OEPA
     Richard Robertson, OEPA-SHDO

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(j
                             OSWES Policy Directive No. 9476.00-1.



'*        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                     WASHINGTON, O.C. 20440
                                    3 I  1908


                                                  SOLiO WASTE ANOEMEflGENC-- ">€SP-
    MEMORANDCM
    SUBJECT:  -Ground-Water Monitoring at Clean-Closing Surface
              'impoundment and Waste Pile Units
    FROM:
                 istant Administrator

    TO:       Regional Administrators
              Regions I-X

        Several provisions of HSWA have made,  it necessary or
    desirable for a number of owners or operators to close their
    land disposal units.  Many of these units are going through
    "clean closure"; that is, removal of all waste residues,
    contaminated containment system components, contaminated
    subsoils, and structures and equipment contaminated with
    waste and leachate.  Several Regions have questioned whether
    a clean closure demonstration requires ground-water
    monitoring before the unit is declared clean for the purposes
    of closure under sections 264.228(a), 264.2S8(a), 265.228(a),
    or 265.258(a).  The purpose of this memo  is to reiterate and
    clarify Agency policy in'this regard.

        It has been the Agency's policy for some) time that owners
    and operators must not be allowed to "walk away" from units
    with inadequate ground-water monitoring systems or with
    ground-water contamination at closure.  This policy has been
    described in my August 27, 1985 memorandum regarding RCRA
    policies on ground-water quality at closure, in the FY 1987
    and 1988 RCRA Implementation Plans  (RIP), and in the clean
    closure) policy outlined  in the preamble to the final
    "conforsilsn change** rule concerning clean closure of surface
    impounelMBX**- published  in the federal Register on March  19,
    1987 (Slffl 87f4).  if an adequate ground-water monitoring
    systea i«vTn. place, it is still the Agency's policy that  as
    part of the) clean closure certification process EPA must
    review ground-water monitoring data to verify that there  is
    no ground-water contamination from  the unit(s).

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                                        l Policy Directive So. 9476.00-^

                               -2-
    There exists, however, a universe of land disposal units
 that may not have a ground-water monitoring system, or ma/ have
 an  inadequate ground-water monitoring system in place at
 closure.  These  include  interim status waste piles, interim
 status surface impoundments that contain corrosive-only
 hazardous waste  that are eligible for a waiver under section
 265.90(e),  interim status units exempted from ground-water
 monitoring  on the basis of the self-implemented waiver found :n
 section 265.90(c), or units simply  failing to comply with the"
 Subpart ? requirements.

    Many of these units have already closed by removing waste
 and certifying "clean closure" without assuring clean ground
 water.  Congress has made it clear  that ground-water
 contamination at treatment, storage/ and disposal units must be
 addressed., Section 3005(1) of RCRA requires all units receiving
 hazardous waste  after July 26, 1982 to comply with ground-water
 monitoring  standards established under Section 3004, regardless
 of their current active or inactive status.  Any closed interim
 status unit covered under Section 3005(i) that does not meet the
 40 CFR 264  clean-closure standard must be issued a post-closure
 permit implementing the appropriate Subpart P program.  In order
 to avoid post-closure permit responsibilities* interim status
 facilities  that  have "clean closed" will need to present
 evidence that th« "clean closure* i» in compliance with the
 Agency's clean-closure rules found  in sections 264.228 and
 264.258.  (This  position is clearly presented in the Final
 Codification Rule, 52 PR 45788, December 1, 1987).
 Reexamination of all prior clean closures should be performed as
 suggested by the 1988 RIP and in concert with individual
 Regional priorities.

    w« recognize, however, that under certain circumstances for
 units that  "clean-closed" under interim status a demonstration
 that ground water is uncontaminated might be made without a
ground-water monitoring system in place.  In order to preclude
 the need for ground-water monitoring at a clean closing unit the
owner or operator4 would need to meet the decontamination
 standard as codified in section 270.1(c)(5) and  (6) and make a
demonstration ia accordance with applicable waiver requirements
 (found ia section 264.90(b) (4).  For clean-closing units at  least
 tthe follog|flg_criteria would need to be met to assure- compliance
with the) oJMMral closure performance standard  (section 264.111):

    1) Accurate  historical data on  wastes handled at the  unit
       have been carefully recorded, including a complete
       analysis of waste composition and characteristics;

    .2) The  properties of the waste  constituents  together  with
       the  geochemical environment  of the soils  show no
       potential for migration to ground-water during the active
       life and  any post-closure care period; and

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                                  OSWER Policy Directive No. 9476.OC-U
                               -a-
     3) Other supportive data  (e.g., an alternative monitoring
      . system or other geophysical verification) needed to
       ensure protection of human health and .the environment.


    We recognize that these criteria for not requiring
ground-water monitoring are stringent.  However, these
restrictions are necessary because the Part  264 clean-closure
demonstration may ultimately  relieve the owner or operator of
any  further Subtitle C responsibilities at the closing unit or
facility.

    For those units authorized to operate under Section 3005(e)
that stopped receiving waste  prior to July 26, 1982, several
tools exist for obtaining confirming data.  Where the
Administrator has determined, based on any information, that
there has been a release of hazardous waste  (or hazardous waste
constituents) from a facility into the environment, Section
3008 (h) may be used to perform studies (including ground-water
monitoring) and/or corrective measures, as necessary to protect
human health or the environment.

    Where imminent and substantial endangerment can be
established, studies and corrective measures can- be required
under Section 7003.  Section  3013 could be used to collect data
and to implement ground-water monitoring, where the presence or
the release of hazardous waste "may present  substantial hazard"
to human health or the environment.

    Where a permit for the facility is otherwise required,
corrective action (including  ground-water monitoring) for
improperly "clean closed" units may be effected under Section
3004 (u) during the permit process.  In cases where an adequate
ground-water monitoring systea has not been  installed and there
is no valid ground-water monitoring waiver,  and/or where other
Subtitle C requirements have  been violated,  attempts at clean
closure, whether successful or not, should not preclude the
imposition of enforcement authorities, for example under Section
3098 (a) to obtain remedies and/or penalties  under Section
3008(g).
               havei any questions  regarding the content  of  this
memorand^sffc-pieese contact Chris Rhyne of my  staff at  PTS
cc:  waste Management Division Directors,  Regions  I-X
     RCRA Branch Chiefs,  Regions  I-X
     Permit Section Chiefs, Regions I-X
     Enforcement Section  Chiefs,  Regions  I-X

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                                     OSWH* Directive No, 9476.00-16


 A %
 "• i        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     I                   WASHINGTON. D.C. 20460
                                                          OPf'CE OF
                                                  50UO WAS" AND :M£SG£NCV
MEMORANDUM

SUBJECT:  Effective Dates for Characteristic and Listed Wastes
          per March 19, 1987 Clean Closure Regulation

FROM:     Sylvia K. Lowrance, DirectogWL
          Office of Solid Waste  (WH-562)0

TO:       Waste Management Division Directors
          Regions I-X

    Several regions have raised questions about the effective
date of the Clean Closure Conforming Changes Rule of March 19,
1987 (52 FR 8704) and, in particular, have asked whether the
clearn closure standards discussed in the preamble to the rule
(52 FR 8705) apply in authorized states.  The purpose of this
memorandum is to clarify the applicability of the March 19, 1987
rule.

    As you know, the Clean Closure Conforming Changes rule made
several conforming changes to the Part 265 closure and
post-closure regulations for surface impoundments.
Additionally, the Agency set forth its interpretation of these
regulatory requirements in the preamble to the rule.  In
particular, the rule changed the closure by removal standards
under Part 265 to be consistent with Part 264 standards.  A key
feature of this change was to amend the 265 closure by removal
standards for characteristic wastes.  Under the old closure by
removal standard, "clean closure" could be achieved if the owner
or operatoc.-4flnonstrated that remaining materials did not
exhibit to* characteristic that  first brought the unit under
control.  Under amended S265.228(a), however, surface
impoundment* containing characteristic wastes as well as those
containing listed wastes must "remove" all waste residues,
including hazardous waste constituents derived from the waste.
The preamble to the Conforming Changes rule provides guidance on
determining when "removal" of waste residues has been achieved.

    According to the preamble (52 FR 8706), "removal" under
$265.228(a)(1) means removal of  all wastes and liners, and the
removal of leachate and materials contaminated with the waste or
leachate (including ground water) to levels that are protective
of human health and the environment.  Owners/operators must

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                                              Directive No, 9476.00-16

                               -2-
demonstrate that any hazardous constituents left in the soils,
subsoils or groundwater would not cause unacceptable risks to
human health or the environment.  These demonstrations must
document that the contaminants do not contaminate any
environmental media in excess of Agency-recommended limits.  The
Agency-recommended limits include water quality standards and
criteria and health-based limits based on verified reference
doses (RfDs) and Carcinogenic Potency Factors (CPFs).  If no
Agency-recommended limits exist for a hazardous constituent,
then the owner/operator must remove the constituent down to
background levels, submit data of sufficient quality for the
Agency to determine the environmental and health effects of the
constituent, or follow landfill closure and post-closure
requirements.

    The March 19, 1987 rule became effective in unauthorized
states on September 15, 1987.  The date on which the clean
closure policy outlined in the preamble may be applied in
authorized states will depend on whether the wastes in question
are listed or characteristic.  For characteristic wastes, the
policy would not apply until the authorized state had adopted
the new regulation at §265.228(a)(1) - - until that time
facilities could continue to clean close by demonstrating that
remaining materials did not exhibit the characteristic that
brought the waste into the system (i.e., the demonstration
required under the former rule).  The deadline by which
authorized states must incorporate the March 19, 1987 regulatory
changes is July 1988.  For listed wastes, on the other hand, the
policy may be applied in authorized states immediately, since
the preamble interprets regulations that should already be
adopted as part of the authorized state program.

    Regardless of whether a specific state has adopted these
regulatory changes, owners and operators should be reminded of
the statutory requirements of S3005(i) of HSWA.  Units which
clean close pursuant to Part 265 standards will not be relieved
of post-closure care obligations until they demonstrate
"equivalency" with Part 264 clean closure standards  (see 52 F.R.
45788).  Accordingly, owners and operators of facilities who
v/ish to clean close should be encouraged to perform such
closures in accordance with Part 264 standards.

    If you have any questions, please call Sharon Frey at  FTS
475-6725.

c:c:  Region Counsel, Regions I-X

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 MAY  I 2 S89                   OSWER Policy Directive # 9476.00-18
SUBJECT: Guidance on Demonstrating Equivalence of  Part 265  Clean
         Closure with Part 264 Requirements

FROM:    Sylvia Lowrance,  Director V  A  "^ -f
         Office of Solid Waste   -*->Y^  ^'  
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subsoils..."  The Agency  interprets the terms "remove" and
"decontaminate" to mean "...removal of all wastes and liners, and
the removal of all leachate and materials contaminated with the
waste or leachate (including ground water) that pose a
substantial present or potential threat to human health or the
environment"  (52 £B at 8706).  To meet this standard,
owner/operators must demonstrate that no Part 261 Appendix vni
constituents  remain in the soils, vadose zone, or ground-water
above Agency-recommended  limits before certifying clean closure.

    These Agency-approved limits or factors include water
quality standards and criteria, health-based limits based on
verified reference doses  (RfDs) and Carcinogenic Potency Factors
(CPFs), or site-specific  Agency-approved health advisories (52 £E
at 8706).

    When assessing potential exposures to constituents released
from the unit, the owner/operator must establish the points of
compliance directly at or within the unit boundary for all routes
of exposure (surface water contact, ground-water ingestion,
inhalation, direct contact, and soil ingestion).  In setting
these points  of compliance, consideration of contaminant
attenuation b«tw««n the unit and potential exposure points is not
allowed.

    Further discussion of these requirements is provided in the
preamble to the March 19, 1987, conforming changes regulation (52
£B 8704), and in a subsequent Notice of Clarification issued on
March 28, 1988 (53 £B 9944).  Pending the up-coming issuance of
the clean closure guidance mentioned in the March 19, 1987,
preamble, these two sources provide the fullest interpretation of
Agency policy concerning  the requirements applicable to units
undergoing clean closure.

B.  Previous  Part 265 Interim Status Clean Closure Requirements

    The pre-1987 Part 265 interim status clean closure
requirements  differed from the Part 264 requirements in several
significant way*.  First, these standards allowed owner/operators
to discontinue removal activities and certify closure if they
were able to  demonstrate  that residuals associated with the unit
were no longer haiardous.  This provision allowed owner/operators
of surface impoundments containing solely characteristic wastes
to meet the clean closure standard by demonstrating that wastes
no longer exhibit the characteristic that first brought the
impoundment under regulatory control.  In this.situation,
owner/operators could have clean closed without evaluating the
presence of additional Appendix VIII constituents that could pose
a threat to human health  or the environment.

    Secondly, the interim status ground-water monitoring
requirements  applicable to these units only required

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owner/operators to monitor for indicator parameters and hazardous
waste constituent* for which a waste was listed,  owner/operators
did not have to demonstrate that all Appendix VIII constituents
that could pose a threat to human health or the environment had
been removed in order to certify clean closure.

    Finally, interim status facilities were not required to
demonstrate that all releases of Appendix VIII constituents to
noils, surface water/ air/ or ground water posing a threat to
human health or the environment had been removed at closure.

IV. EQUIVALENCY DEMONSTRATION INFORMATION REQUIREMENTS

A.  General Information Requirements for Equivalency
    Demonstrations

    40 CFR Section 270.l(c) now affords owner/operators who
closed under the Part 265 requirements the option of
demonstrating that the units had actually been closed in
accordance with the Part 264 requirements, by submitting an
"equivalency demonstration".  This equivalency demonstration is
outside the Part B post-closure permit application and review
process.  The Agency expects owner/operators to submit sufficient
information in their equivalency demonstrations to allow the
Agency to determine whether the clean closures fully comply with
the Part 264 requirements.  The Agency does not intend/ however/
that owner/operators submit the same quantity of information
required when submitting full Part B permit applications.

    The demonstration submitted by the owner/opera tor must
include/ at a minimum/ sufficient information for identifying the
type and location of the unit/ the unit boundaries/ the waste
tihat had been managed in the unit/ and the extent of waste and
soil removal or decontamination undertaken at closure.  Relevant
ground-water monitoring and soil sampling data should also be
submitted to demonstrate that any Appendix VIII constituents
originally in the unit and that remain at closure are below
levels posing a threat, to human health and the environment.
These levels are those discussed in the March 28/ 1987 preamble/
i.e., water quality standards and criteria/ health-based limits/
carcinogenic potency factors/ or ATSDR site-specific Agency-
approved advisories (52 EB at 8706).

    Owner/operators can submit information demonstrating that
the closure certified under Part 265 complies with the Part 264
standards using existing data developed at the time of closure.
If insufficient data are available to support this demonstration,
owner/operators may collect new data to demonstrate that the Part
265 clean closure meets the Part 264 clean closure requirements
that were in effect at the time of closure.  If upon review/ the
Agency determines that the closure does not meet the Part 264
standards/ the owner/operator will be required to submit a  Part B

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permit application containing all the applicable information
required  in Part  270,  including ground-water monitoring
information.

B.  Acceptability of Specific Information Supporting
    Demonstrations

    Five  potential issues concerning the acceptability of
specific  kinds of data used  in an equivalency deaonstration have
b«en identified.  These  issues are discussed below.

    1.  Acceptability of Previously Collected  Data

    Many  facility owner/operators will  have generated
considerable amounts of  data during  their original closure
activities.  To the  extent that these data represent the
conditions at closure and provide sufficient information to
determine compliance with the Part 264  requirements, they may be
Uised to support an equivalency demonstration.  Regional staff
should evaluate the  information for  the extent to which it
fulfills  the requirements of Part 264,  and for its overall
quality,  reliability,  and accuracy.

    While previously collected data  may be used, in many cases
owner /operators will need to collect some additional information
on hazardous constituents that may remain in the soils, vadose
zone, or  ground water to demonstrate equivalency.

    2.  Use of Existing  Soil and Ground-Water  Sflm.pJ.incr Data aa
        Proxies  for  Miaaina  Data

    The Agency believes  that in limited cases owner/operators
miiy use existing  soil and ground-water  sampling data as proxies
for missing data.  In the first case, soil sampling data can
sorve as  a proxy  for ground-water monitoring data when these are
not available.  In the second case,  ground-water monitoring data
can be used to demonstrate the acceptability of a soil or vadose
zone cleanup.  In such cases, the Agency may consider these data
when reviewing equivalency demonstration*.  For example, some
owner/operators may  wish to  use previously collected soil
sampling  data aa  a surrogate for actual ground-water sampling
data in order to  demonstrate compliance with the Part 264 ground-
water clean closure  levels,  or facility owner/operators may wish
to demonstrate that  soil contamination  was remediated
sufficiently by submitting ground-water monitoring data
demonstrating no  migration of contaminants from the soil.  It is
more likely that  EPA will accept soil sampling data as a proxy
for ground-water  monitoring  data than the converse.  One such
example of where  soil sampling and vadose zone data might be used
an a .surrogate for ground-water sampling data  is in a
hydrogeologic setting where  the water table is located at

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significant depth* froa the surface or where ground-water
monitoring is not feasible.

     Demonstrations using  soil  sampling data will, however ,
generally require assumptions  of contaminant fate and transport
in the relevant subsurface media.  As stated in the preamble to
the March 19, 1987, conforming changes rule, the Agency does not
bilievtt it is appropriatt to consider assumptions about
subsurface attenuation when approving clean closures, given the
uncertainty involved in such assumptions and the fact that all
further regulatory control ends upon certification of the
closure.

     3.  Requirement: for Full  Appendix VIII Samplfpty

     The Part 264 clean closure standards require a demonstration
that all Appendix VIII constituents originally in the unit have
been removed or decontaminated.  As with the 40 CPR Section
264.93 monitoring requirements, however, the Agency believes that
it may be possible to exclude  some hazardous constituents from
consideration based on knowledge of past activities at the unit.
Equivalency demonstrations that consider all the hazardous
constituent* that may reasonably be expected to be in or derived
from the wastes managed in the unit may be acceptable in lieu of
the  full list of Appendix VIII constituents.

     The Regions may decrease the list of constituents that must
bo evaluated to the extent that information submitted by the
owner /operator is complete relative to the wastes disposed and
demonstrates that these constituents could not reasonably be
present in environmental  media affected by the unit.  In
evaluating such demonstrations, Regions should also evaluate
closely the potential that additional Appendix VTZZ constituents
may be present in the soils or ground water beneath the unit.

     4.  Use of Pete  from  Previously Exist in0 Oround— Water
                   flveteae
    Th« Agency will consider equivalency  demonstrations based on
data froa previously existing ground-water monitoring systems
provided such ground-water monitoring systems were in compliance
wjlth the applicable requirements'.  At a minimum, such systems
must have met the Part 265 Subpart p ground-water monitoring
requirements.  To the extent that these systems were located,
screened, and operated properly to gather representative ground-
wciter information, the Agency believes that they can be used to
support an equivalency demonstration.  In order to determine
whether monitoring systems were in compliance with Part 265,
Regions should examine available records  and documents, such as
old inspection reports, enforcement records, CME reports,  or
Ground-Water Task Force reports.

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     5.  Practicability  ot Obtaining Mew Data

     Some  facilities will have certified clean closure several
yaars ago, and subsequently may have constructed structures on
top of clean closed units, making it difficult to obtain new data
for the equivalency demonstration.  For example, a building with
a concrete floor or wastewater treatment unit constructed on top
ol? a clean closed hazardous waste management unit could obstruct
the collection of new  sampling data.  Collecting new soil or
ground-water data at such a site might require either drilling
through the concrtta floor of tha building or using angled
drilling techniques.

    The Agency recognizes the difficulties associated with data
collection in these cases.  In reviewing the quantity of such
deita submitted, the Regions may consider the technical
difficulties involved  in collecting such data.  The standard of
protection against which equivalency demonstrations will be
evaluated will not, however, be different depending on the
technical difficulties of data collection.* Accordingly, the
Agency will require owner/operators to submit representative
existing data and/or to collect those data necessary to
demonstrate compliance with the Part 264 requirements.

V.  APPLICABILITY TO LANDFILLS

    EPA interprets its regulations to allow landfills from which
wastes have been removed at closure to accomplish "clean closure"
and, if closed under 40 CFR Part 265 standards, to allow an
equivalency demonstration to be made under 40 CFR Section
270.1(c)(5) and (6), through redefinition of the landfill as a
waste pile, surface; impoundment, or land treatment unit.  It is
most likely that the redefinition, or change in process, will be
to a waste pile, pursuant to 40 CFR Section 270.72(e).  Clean
closures or demonstrations of equivalency with clean closure, are
governed by the applicable Part 264 closure requirements (e.g.,
40 CTR Section 264.258 for waste piles).

    As an alternative  to making an equivalency demonstration
pursuant to 40 CFR Section 270. l(c) (5), the owner/operator of a
landfill frosi which all waste has been removed and for which the
owner/operator can provide evidence that the level of
contamination ia such  that it no longer poses a threat to human
health and the environment, may request that the Regional
Administrator shorten  the post-closure cars period [40 CFR
Section 264.117(a)(2)(i)J.  The term of the post-closure permit
should then be modified to a minimal period in accordance with 40
CFR Section 270.42.

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 VI. CONTENTS OP THE EQUIVALENCY DEMONSTRATION AND PROCEDURES FOR
     SUBKXTTAL

     No specific format for an equivalency demonstration is
 required.   For ease of review, the Agency suggests that
 equivalency demonstrations include three basic sections:  1)  a
 Unit Description,  2)  a Description of Closure Activities
 Conducted,  and 3)  a Demonstration of Compliance with clean
 Closure Levels.

     The first section, Unit Description, should provide
 information on the size and location of the unit,  the wastes
 managed by the unit (EPA hazardous waste numbers and quantities),
 any liner system and leachate collection system, containment
 system, and run-on and run-off control systems.  In addition,
 owner/operators should present a description of the hydrogeology
 of the immediate area, including descriptions of ground-water and
 soil conditions, ground-water monitoring systems,  detection
 programs,  and any corrective action activities undertaken.   For
 land treatment units,  information concerning application rates
 should also be included.

     The second section, the Description of Closure Activities
 conducted,  must identify, in detail, all removal and
 decontamination activities completed at the unit during closure.
 This description should include information on the quantity  of
 waste removed (by waste type), the quantity of leachates  and
 contaminated containment liquids removed, the quantity of bottom
 sludges/residues removed, the quantity of contaminated soil
.removed,  the methods used for removal of inventory (i.e.,  waste,
 sludge, residue, liquid,  and soil), and the procedures used  for
 decontaminating and/or disposing of inventory,  specifically, the
 description of the decontamination and disposal activities should
 identify the method of decontamination of equipment/structures,
 the treatment or disposal of cleaning agents/rinsewater,  and the
 demolition and removal of containment systems (e.g., liners,
 dikes)  and other equipment/structures.

     Th« previously approved closure plan should provide the
 majority of tlM descriptive material required for sections 1 and
 2  of the demonstration.  The owner/operator should not assume
 that the closure plan has been retained by the Agency; relevant
 portions of the plan should be resubmitted.  A copy of the
 closure certification should also be provided.

     The third section, Demonstration of Compliance with Clean
 Closure Levels, should present sampling data supporting the
 owner/operator's equivalency demonstration.  This section should
 sjpecify where samples were taken in each relevant medium, when
 tile samples were taken, what parameters were examined, and the
 analytical results.  The information should specify the sampling
 protocols and analytical methods used during the sampling

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                                8

activities, along with available quality assurance/quality
control information.  The raw sampling data should be presented
in an appendix to the report, while the results should be
summarized in a clear Banner in the body of the report.  In cases
where surrogates or proxies are proposed for use, the
owner/operator should fully explain the reason for the use of
such proxies and any analytic assumptions which were made,  where
data from all Appendix Vlil constituents are not submitted,
soction 2 of the submission should support the assertion that
such constituents were not and are not present in the unit.

    Finally, the demonstration should include a narrative
discussion summarizing both the results of previously collected
data and new data collected for this demonstration.  In the
conclusion, the section should compare the results of sampling
data to the applicable clean closure levels for the relevant
parameters.

    The December 1, 1987, Codification Rule presented procedures
and timeframes for the submittal, review, and approval of
equivalency demonstrations.  The timeline presented below
summarizes the critical dates and activities that must be
followed by owner/operators and the Agency upon receipt of an
equivalency demonstration.
30 Q»y«
	 •»
30 C*y«
SO Oly«
                                           180

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                                                           9476.1983(02)
                              JAN  | |  1983
Dr. R*va Rubenstein
Director
Institute of Chemical Wast*
  Management
National Solid Waste*
  Management Association
1120 Connecticut Avenue, N.W.
Washingtonf D.C.   20036

Dear Dr. Rubenstein:

     This letter is in response to your latter of  December  6,-
1982r requesting interpretation of closure and poet-closure
requirements regarding land disposal facilities.   I have
responded to your questions in the order presented in your
letter and attachment.

1. L Rocontouring the final cover material and/or adjusting
   *~ i rip lace waste in the same unit as required to  maintain  the
    function of the final cover as a result of•• subsidence and
    settlement, does not constitute receipt of hasardous waste
    after January 25, 1983.j These actions must be described
    in each facility's closure sad post-closure plans which
    must be approved by the Regional Administrator.  Codifica-
    tions can be made to these plans as necessary  with Agency
    approval.

2.  The controlled Irrigation of the vegetative cover is allowed
    in order to establish vegetation during the closure period
    or to maintain it during prolonged dry spells  in the post-
    closure period.  But the regulations require the final  cover
    to provide long-term minimisation of migration of liquids
    through the closed landfill (f264.'310(a)(l)),  and to function
    with minimum maintenance (*264.310(a)(2)).  Thus, the
    guidance documents recommend that the plant species chosen
    be indigenous, require minimal or no additional moisture,
    and be selected based on anticipated moisture, light,
    temperature, elevation, and competitive cohabitants, etc.

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The closure and post-closure  plans  should  contain  a  descrip-
tion of why and when the  irrigation may  r*» deteruine<1  to
be necessary  (e.g., recommended by  local agronomist  to
establish vegetation during a dry period), the  amount  and
frequency of water application, and water  balance  analysis
showing the effect of the  irrigation water on total  annual
liquid input through the  final cover.,

EPA has available two reports that  provide technical
information on this subject,  entitled  "Evaluating  Cover
Systens for Solid and Hazardous Waste* SW-867,  September
1982, which discusses irrigation of plant  cover and  other
plant requirements? and (2) "Hydrologic  Simulation on
Solid Waste Disposal Sites* SW-8fi8, September 1982,  which
is a computerized water balance model, to  evaluate the
probable hydrologic performance of  existing or  proposed
landfill designs.  Both of the reports are available from
the Government Printing Office (SV-167 is  Stock No.  055-
000-00228-2 §84.75, SW-868 is Stock No.  055-000-00225-8
4S6.00).  EPA is currently revising the model for  "Hydrologic
Simulation on Solid Waste  Disposal  Sites*  to enable  its
use in estimating seepage  through the*  liner as  well  as
through the cover*  The revised i»odel  should be available
early in 1983.

Your statement that 40 CF* Parts 264 and 265 prohibit  the
addition of bulk liquids  to the waste management unit  ,1s
not Quite accurate.  Bulk  liquids.TiriT Iftf tAfrl 'jj IfaV site
is lined and has a leachate collection and removal system.
Liquids in the leachate collection  system  must  be  removed
during operation, closure, and post-closure.  In general,
the addition of liquid* into  the unit during closure would
be permitted only if by doing so the facility and  waste
will b« stabilised sooner*  As you  know, the objective
during and after closure  is to remove  liquids and  keep them
out*  If liquids are added during closure,  the  closure period
would need to be extended until the addition stopped.

To further elaVify the above  explanations  Z must emphasize
four points*  First, any  liquid applied  to the  final coyer
of a landfill to sustain vegetation cannot be a hazardous
waste (e.g., cannot be leachate unless it  is no longer a
hazardous waste), cannot harm the vegetation., and  cannot
otherwise impair the integrity of the  final coyer  (e.g.,
cause increased infiltration  because of damage  caused  by
pH).  Second, liquids may not be injected  into  the waste
after closure (e.g., leachate recirculation by  injection),
aince this is contrary to the pout-closure objective of
keeping liquids out.  Third,  as stated above, liquids..
could be allowed during closure, including leachate

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 reelrculation,  if:  (a)  ther* is a liner and leachate
 collection  system,  (b)  leachate is removed fron the
 laachate  collection systen,  (c) the addition of
 serves ..teL^nhahce  closure~~T*.g. ,  accelerates subsidence
-end 'stabilization)", ~ritt^«r .than^jnerely serves as ajconvenient
 way to  dispose  of  the" liquids,  anJT" (fl) the liquid addition
 f»~egpTrinefl  anfl  Ratified in bhe g"lo«upff pj^^ .Such
 closure would not  be  completed  until re c i r cu 1 a tion._ce a se s^_
 Kiso, reel reflation or  a hazardous waste (leachate) after
•January 26,  1983 would  make  the unit a ^regulated unii
 subject to  the_ requirements  of  Part 264^_  I should point
 out that  recirculation  of a  hazardous waste (leachate) can
 occur during  operation.*A^ would  normally be considered an
 operational  rather than closure activity.  Closure activities
 are those which Jead_ to.stabilization 'or the unit in a_
 tinely  Tanner *ftter receipt  of  wastes has ceased.  Fourtfc,
 the characteristics and purpose of any liquids"~to be added__
 Co the  land'fill or to the cover during or after closure.
 TTiust be specified  in  the closure  or pout-closure plans and
 approved  by  the RA (or  authorized State), including any
 extension of  the 'closure period.   Such purpose and extension
 must be consistent with the  environmental objectives specified
 in Part 264  or  265. __

 Landfills that  are currently engaged in co-disposal of
 hazardous and non—hazardous  wastes could continue to accept
 non-hazardous wastes  after January 25, 1983, in order to
 complete  a partially  filled  hazardous waste unit and close
 under either 40 CFR Pert 265 or Part 264 requirements.  This
 assusies that  the owner  or operator completes the cell in a
 tinely  manner,  which  generally  means within the 180 day
 closure period. If the closure cannot be eompleted.j£i£JUn
 the 180 days  the owner  or operator mist apply to have the
 closure period  extended beyond  6  oonths, for a specified
 time period,  as provided,in  40  CPU 265".inib3_pr 2«4.irT(b)x
 to allow  the  waste to be filled until the designed elevation
 is reached. _ This  type  of closure could be approved if it -
 provides  for  a  more environmentally sound closure, and not V
'merely  for the  economic convenience of the owner or operator.
 Each extension  will be  considered on a case—toy-case basis.
 The regulatory  concern  is closing the landfill in as expedient
 a tine  as is  practical  (i.e., achieving final contour and
 final cover)  so as to prevent additional rainfall infiltration
 and other environmental exposure. '. Pertinent factors include
 use of  earth  materials  and~redee'igning the final contours.
The Regional  Administrator or approved state, permitting
 authority could approve a closure plan or modification
 to the  closure  plan allowing the  unit or cell to be completed
 with non-hazardous waste after  January 25,-1983, and possibly
extending the closure period (more than € months) after
January 25,  1983 upon such a showing.  Conditions for
 accomplishing this would be  in  any approved closure plan

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    or closure permit  (e.g., tim* period,  final contour*,  type
    of waste).

4.  For the situation where a surface  impoundment  'clones  as a
    landfill* before January 25, 1983, I presume you mean  no
    more hazardous wastes received after January 25, 1983,  but
    closure (e.g., dewatering, etc.) has not yet been done.
    The waste will be  removed fron the surface impoundment,
    solidified and replaced in the sane  impoundment, to ensure
    that it will bear  the weight of  the  cover.  EPA does not
    consider this replacement of waste after January 25, 1983,
    to be 'receipt* of hazardous waste which would constitute
    a "regulated unit".  This decision assumes that the
    solidifying material is not a hazardous waste*

5.  For your last question you described the case  where
    multiple hazardous waste trenches will cease to recejjre
    hazardous waste on or before January 25, 1983, snd where
    the closure plan provides for a  delayed closure of a half-
    filled trench for  the deposit of solidified hazardous
    waste from closed and capped trenches.—In general, such
    placement of soiirllMeri hatarrtrmg "attt frnr the rlnsetL
    trenches inte the -reserved half-tilled trench even at
    the same facility, will be considered  "receipt* of hazardous
    waste such as to constitute a "regulated* uniOJSeeause  the
    waste is received and disposed at the  facility unTE after
    January 26, 1983..  X refer you to the July 26, 1982 federal
    Register preamble discussion at  47 PR  32289 which describes
    the concept of a waste management unit*  where landfills
    consist of a series of trenches  which are separately lined,
    each trench is a separate waste  management unit*  The  transfer
    of hazardous waste frost one unit to another after January 26,
    1983 therefore makes the receiving trench or unit a "regulated1
    unit.  _

     As a side note, I should mention that the closure
performance standard for interim status and for permitting
facilities is the same (40 CF* 264.111 and 40 CF*  265.111).
The final cover or cap for landfills closed under  Part 264  or
265 standards should be similar.  Significant Differences  in
the design of the cap should result  from site specific factors
rather than the type of permit a facility  hen.  Thus, many of
the above comments apply to both Part 264 and 265  closure
requirements.

     I hope the above explanations help clarify the regulations
for you.  Should you have any further questions with regard to

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hov this regulation effects NS«*\ members please contact me or
Pr«>d Lindsay of my staff (382-4755).


                                  Sincerely your*,
                                  John H. Skinner
                                  Acting Director
                                  Office of Solid waste
cc:  Regions I - X (with incoming)

     «ifc« Cook
     Eileen Claussen
     John Lehnan
     Bruce Neddie
     Lisa Friedman
     Mark Greenwood
     Pred Lindsey
     Gene Lucero
     Ken Shuster

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                                                              9476.1934(03)
            RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY
                             MARCH 84
Dees a 255 closure have to use the SJ'O.Kc")  certification?
    No, the closure is rot a perait application or a permit report.
    Source:  3etty :«ller                   .

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON. 0 C. 20*60               9476.1984(04)
                           AUG071984
                                                SOi-iO
MEMORANDUM
SUBJECT:  Closure Issues Related to Wood Preserving Plants

FROM: |    John H. Skinner, Director           ^    '
       \  Office of Solid Waste   /t   v;/.i'.'   „ ,5?£

TO:    ,   James H. Scarbrough, Chief
          Residuals Management Branch, Region IV


     In your June 26, 1984 memorandum you posed three questions
regarding closure activities and the use of unproven technolo-
gies for closure at wood preserving plants.  Several questions
regarding the definition of K001 hazardous wastes generated
by these facilities were also raised; these latter questions
have been partly answered in my July 25, 1984 memorandum.i/

     First, the maximum time allowed for closure after final
receipt of waste is 180 days as specified in S264.113(b)
unless the Regional Administrator grants the owner or operator
an extension.  The grounds for extensions are strictly limited
to instances when: (1) of necessity, it takes longer than
180 days to perform closure, or (2) a new owner or operator
will recommence operations at the site and closure would be
incompatible with continued operation.  It seems that the
first criteria could be argued in the case of wood preservation
plants.  However, if the owner or operator could use a proven
technology to complete closure within the 180 day period, an
extension may not be justified.  In addition, I agree with
your assessment on this issue and reaffirm the guidance in
the preamble to the May 19, 1980 regulations: "A variance
procedure will allow a longer period, where it can be justified,
although in no case may closure take more than three years.*
I/  A question was raised regarding contaminated  rainwater
~~   run-off from treated wood storage areas.  We  hope  to  resolve
    this issue along with the regulatory status of  spray  irrigation
    fields in conjunction with  EGO.  We expect to get  back  to
    you on these points in  the  near future.

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                                                                    9476.1934(05)
       Subject:   Stean Te*n Conr.ents, Crucible Steel, Syracuse, MY

       Fron:      Chris Rhyne
                 KG  Permit Assistance lean

       To:        Janes Reidy,  Chief
                 PCHA Permits. Section, Region IX


       PacKground

~          Crucible Corporation operates a speciality steel nill on
jc      Che west  side of Onondaga Lake approximately 2 miles northwest
-K      oi Syracuse,  Now York.   Since 1973 Crucible has fceen operating
       a 20 acre landfill to dispose of its steel  nill waste.  Thexc
       waste's, including CAP and AGO dusts, waste  caustic solids, ar.cl
,      acid picklincj slucir.es,  are spread over the  surface of an inactive
^      Solvay  Process Wastebed that is 60 feet deep and 365 acres in
i      a red!, extent.
?>                                                                    .
••
5          The  Solvay Process Was to bed was forr.ed as a by-product frcn
™      tno production of Soda Ash (sodium carbonate) dating hack no
*J      and is  comprised of Calciurt Carbonate, Calciun Silicate,
•£      Hydroxide,  and lessor amounts of other ccnpounds.  The average pH
^      is approximately 12.0.
i
^          After spending tive with the State of  New York in an attenp't
^      to obtain a permit to dispose of their hazardous waste, Crucible
~>      decided to halt the disposal of hazardous waste at this site
r1      in M*rch  of 1982.  -Since Crucible was no longer disposing cf
;:      hazardous waste, they agreed to subnit a closure plan to the
z.      Region  II office.  In this plan, Crucible proposes to continue
£      operating the landfill as a non-hazardous waste landfill,
f-      applying  non-hazar«ioua waste over the in-place hazardous waste.
»      Final cover would be applied-in stages as the landfill, is con-
\2      pletod.   Crucible anticipates conpletion in eight years.

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                             -2-

     Second, we agree with you that closure techniques should
be based on proven techniques and not concepts still in the
R and D stage.  For example, if the owner or operator wishes
to use land spreading of hazardous waste at closure, he must
demonstrate the effectiveness of the technique in his permit
application in accordance with Subpart M (land treatment) in
$264.272.1/  In this instance, more details are required
to determine the specific nature of the technology.  However,
if an interim status facility wishes to add a land treatment
technique,  these new processes must be allowable under $270.72
as changes  to interim status.  If these processes cannot be
justified under $270.72, a RCRA permit is required before
they can be used at the facility regardless of whether it is
to be used  during the operating life or a%t closure.

     Third, the addition or creation of new processes at the
facility during interim status may be allowable under $270.72.
If the facility is permitted, however, process changes are
not allowed as minor modifications; therefore, the new process
would require a RCRA permit.

    . I hope this memorandum addresses your concerns.  Please
contact Carole Ansheles at 382-4761 if you have any further
questions.
2/  As explained in ay July 25* 1984 memorandum, we are currently
~"   investigating the regulatory status of spray irrigation
    technologies to determine  if they m««t the definition of a
    land treatment unit, a surface impoundment, or a landfill.

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       r.ay the  rei-uircnent  for  cov^r at closure  be  delayed  for an
       ex tended period of
     • A-.runing  the  regulations  allow delayed  cover, do  CruciMo's
       ary-ur'.enc*  for delayed  cover rVr,cnstrat«» that,  the  facility
       will prevonc.  threats  to hunan health  and th«  environment?

     • May the final cover be covered by non-hazardous waste
       after installation?                            ;
     Tne first  issue  is whether  there  is a  lecjal  basis  for  d
placement ot the cover.  The owner or  operator nust generally  con-
plete closure activities within  190 days* after clonure  pl*n approval.
The regulations do provide  in  sore canes for a longer than  190
day closure period;   however,  the conditions outlined in  «2f»5.113(h)
are specific and Rust'be net by  the applicant.  That is,  tho
closure activities oust, of ncc«»n« if.v, take hi* longer  than 180
days to corplote;'  or closure  would be incompatible with  continued
operation, there is a reasonable likelihood that  operation  will
i:e r"?cor..-ienced  by a person other than  th» owner or operator, and
tr.e facility has the  capacity  to receive additional waste*.  In
acid i'den, the own«r or operator  rvist take All ntcpn to  prevent
tnreats to hunjn health and the  environment.

     1C the RrtQional Acininistritor finds that the above conditions
hav« been n»«t.  Crucible nay delay closure for a period  longer  than
IbO days.  Discussions with OSW  staff  anl witn O<;c staff  hav«»
concluded, however, that the longer period nu«t fc« relates  to  a
need for extra  tine to conplete  legitimate closure activities  or
to a likuly transfer  of the operation  to new parties, not to the
addition oi non-hazardous waste  disposal operation* at  the  Bare
site by the same owner or operator.  We have not  been Informed of
any likelihood  that sonoono other than the current owner  will  take
over operations at this site.  In addition, the prearblc  to the
nay 19, 1930 regulations <4S F£  33197) provides chat '..in
no CAse say closure take etora  th*n 3 years.* Therefore, the
Crucible closure plan nust contain only that tit** needed  to
conplote legitimate closure activities and nust reflect a closure
tine of less than 3 years.

     The second isnue is whether or nor. Crucible's arn;up»ePt.s for
deleyinij final  cover  are environ«-Kjntally sound.   CruelMe ha»
indicated that  an {Speraeable  nerbrane ever their waste would
causo excess settlenent and subsequent Solvay waste dike  insta'^i-
lity.  They reference a report by Ray  H. Teeter,  P.F.,  addressing
settlenent and  stability of the  Crucible Landfill.  Mr. Ttetor
states that if  the water table within  the Solvay  Haste  w»rc
                                -2-

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lowered (as would n« the case if the lanrtfi.ll were covered with
i.-perneable liner), this would increase the effective stresses
in the Solvay "Waste, resulting in increased settlement.  Nowhere
does ttr. Teeter indicate that the increased settlernent would
create instability in the dike.

     Crucible's other environnental argument for delaying cover
is that the Solvay waste adsorbs the chromium being leached from
the hazardous steel nil! waste. This argument is based On Section 4
cf the Engineering Report and Plan of Operation accompanying
the application for a State of New York permit.

     In this document lab scale and fi«ld scale test results are
reported.   The report, however, does not support Crucible1*
conclusion.  The.following questions and observations are included
for your uset

     1.  Significant anounts of chroniun were leached from the
         Pilot column leaching tent (see tables 4-4, 4-5, 4-6,
         and 4-7 for examples).

     2.  The "Multiple 2 Column Tests* did not indicate how much
         tap water was leached through the columns or what the
         composition of the leacheate was at the completion of
         the test.  This information is critical to proper
         evaluation of the data.

     3.  Hexavalent Chromium in readily leached from both Air
         Pollution Dust and Waste Caustic Solids (See Table 4-8,
         page 4-12.).

     4.  Crucible indicates that Caustic Sludge and Acid Pickling
         Sludge do not leach chromate with nmitral pR water* but
         do leach chromate during the EP toxicity test at pH 5.0.
         Th«y then conclude) that these wastes could not be
         expected to leach Hexavalent Chromium in the Crucible
         Landfill (see page 4-13).  This is not necessarily
         true since acid rain deposited in this rtgion can he
         expected to have a pH of <5.0 (see pages 4-7 and 4-10).

     5.  Field Scale tub leaching tests showed a high' level
         (17.6 ruj/L) of Chroniun in the leachate when Solvay
         Waste was used as an adsorbant (see table 4-15, page
         4-24).

     6,.  Trivalent ant! Hexavalent Chroniun tests arc not
         thoroughly reported sines the quantity of Isachats
         passed through the Solvay Process Waste has not been
         statsd.  Results do, however, indieats that Hexavalent
         Chrcaiun is not well adsorbed by the Solvay Waste.
                               -3-

-------
     7,  Hexavalent Chrorittn Adsorption Tests show that Chrcnate
         is net w«ll aesort'ert (350 ng/L) and is easily leached
         Dy tap water (see page 4-28.).

     e.  In the Sequential Adsorption Colur-n? test the Hexavalent
         Chrcniur" content of the Solvay Process waste wa* very
         low (. 5rg/L). Crucihle indicates that thia i3 du*» to
         the reduction of K*»xavfllont Chroniuir. to Trivalent
         Chroniun.  Our .review indicates that this is unlikely "'
         tc happen.  Since the chronate content of the leachate
         was not reported, no reliable deductions can t^e nadc.
         Their theory of reduction of the Hexavalent Chromium to
         Trivalent Chronium with Ferrous Iron as the reducing
         agent is unsubstantiated (see page 4-29).

     The third issue is whether the final cover can be covered
py additional non-hazardous waste.  It is distinctly the
intent of the regulations that final cover be "final".  (This is
clearly implied by the reference to the vegetative layer In rule,
preamble, and guidance).  Moreover, $265.117(e) states that
post-closure use of the property on or in which hazardous wastes
remain after closure must never be allowed to disturb the integrity
of the final cover.  The only exception is if the owner or
operator can demonstrate that the disturbancei

     (1) Is necessary to the proposed use of the property, and
         will not increase the potential hazard to hunan health
         or the environnent; or

     (2) Is necessary to reduce a threat to hunan health or the
         environment.

Obviously, the first test would be the one that night be used «t
tnis site.  To meet neet this tost, Crucible would still have to
show how disturbance of the cover would not only satisfy the
requirements of S265.117(c)(1) but must denonstrate specifically
how.this disturbance will still provide for control of pollutant
migration and surface water infiltration ($265.310(b) and other
applicable condition* outlined in $265.310.


P.ftconnendAtions

     Crucible's request for an extended period of tine for
installation of a final cap should be denied.  Pimt, it is
doubtful that continued operation of tho nonhazardous. landfill is
•necessary* for tht completion of closure activities.  Even if it
could be construed as such, 3 years would be the limit outlined
in the regulatory preanblo.  Secondly, tho purely environrental
arguments outlined in Crucible reports aro not technically sub-
stantiated.  In fact, tho underlying Solvay Process waste is
                               -4-

-------
apparently a si^nifleant contributor  to  the poor quality ground
water underneath the aite.  Crucible's steelwill waste merely
exacerbates the prcblen by naking  its own hazardous waste con-
tribution in the fora of Hexavalent Chroniuw, and by providing a
conduit for increased infiltration into  the underlying Solvay
Process Waste.     -                              .

     Covering of the final cap with additional  non-haiardous
solid waste right be allowed  if Crucible can denonstratu that
this disturbed cap will function as well as a nomal exposed
final cap as per 5265.117(c)  and 5265.310, and  that periodic
inspections will not be necessary.         •  .

     In any event* the currently proposed cap configuration
should not be .approved.  Since it  is  a soil-only cap, it will
allow significant anounts of  precipitation to enter the under-
lying Solvay Process Waste.   An inpcrvious cap  design will not
only nitigate the threat posed by  the ehroniura-containing steel
mill wastes but will also lower the contaninant loading contri-
buted by underlying Solvay Process Waste.  If the Region should '
allow the interim cap, it should take another look at subsidence,
since it appears to be significant.   The probiera with slope •
stability should not b« increased  by  the addition of the inper-
neable cap.        .  '.••••-.';•••       .-••,.'•
            •      •"'..•      •     .* 'r
                          *           .*••*'
                  • '••••     •'         '  .   •••'.•
Contact*     '••       :                 .''•-';'

     Region II - Catherine Mas8inino  FTS 264-1717
   •  Headquarters - Chris Rhyne FTS.382-4695
*                         «             - .          «
                     •  «•••.            •

cci  Terry Grogan
     Peter Guerrero
     Bruce woddle
   .  Ernie Regna  ;.:
     Ron Key    '"';•.,"
     Dov Weitnan  .-.
     Nancy Hutzel  '.'•
     Art Day  '  •   •
                                -5-

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                                                                                9476.1985(01)

                       RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                           JUNE  85
Partial Closure

3.  The oner/operator (o/o)  of  a  permitted facility plans to remove a tank fron service.
    His permit does not address  removal of the tank.  Must the permit be modified to
    reflect this tank removal?

         Removing the tank would constitute partial closure of the facility.  The closure
         plan should address  this  situation according to S264.112(a)(l).  Since  the permit
         does not cover partial  closure, the o/o must amend his plan.  Section 264.112(b)-
         requires the o/o to  amend his plan whenever changes in operating plans  (e.g.,
         tank removal) affect the  closure plan.  To amend the closure plan to address
         partial closure,  the o/o  must ccroply with the standards for major modifications
         for permits under $270.41.  The o/o should amend his plan to address all antici-
         pated partial closures  so that he need only modify his permit once.

         Source:    Susan Hughes (202) 382-4790                      If?!*.

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 	  „                                                           9476.1985(02)
**  J         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
^ ^ f                     WASHINGTON, D.C. 20460


                              AUG 27 1935
                                                          OFFICE Of
                                                 SOLID WASTE AND EMERGENCY AES'ONSE
  MEMORANDUM
              \    x    —      I
                              Sround-Water Quality at Closure
                             strator
             Regional  Administrators
             Regions  I-X


  Background

       As a  result of the  Hazardous  and  Solid Waste Amendments of
  1984r we expect that an  unprecedented  number of facilities will
  close one  or more  hazardous  waste  management units during the
  coming months.  Moreover, many of  these units will close because
  they are unable to  certify compliance  with applicable  ground-water
  monitoring and financial responsibility requirements on November 8,
  1985.  Overall, perhaps  one  half of  all existing surface impound-
  ments may  close before the effective date of the retrofitting pro-
  visions in 1988.   Given  the  number and significance of these
  closures,  it is essential that EPA and the States take steps to
  ensure proper implementation of RCRA requirements as these facil-
  ities* close.  This  memorandum is intended to provide general
  guidance on RCRA closure policies  as affected by the 1984 Amend-
  ment!!, especially  in terms of ground-water quality at  closure.

       The Amendments generally confer broad authority on the Agency
  to ausure  that hazardous waste management units are operated and
  closod in  a manner  that  protects human health and the  environment.
  In particular* the  Agency now has  several authorities  for ensuring
  ground-water quality and conducting  corrective action  at and after
  closure, in addition to  the  pre-Amendment closure process.  We
  intend to make full use  of these authorities to be sure that
  improper closures do not occur.

       Close attention to  closures follows from practical concerns
  as wall.   In many  cases, closure is  the last time that a facility
  comeu under the close scrutiny of  RCRA.  Lack of attention to
  environmental problems at the time of  closure may lead to an
  ineroase in the number of Superfund  sites several years in the
  future.

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                                -2-


 New  Closure  Policies

      In  the  past,  there  has  been some uncertainty regarding
 what  level of  clean-up is  required at closure.   Facilities were
 allowed  to close  in some cases  without an adequate ground-water
 monitoring system in  place or without a plan to respond to con-
 tamination.

      We  must be clear that ground-water quality is an  integral
 aspect of RCRA closure.  Owners and operators must not be  allowed
 to "walk away" from units  with  inadequate monitoring systems  and
 ground-water contamination at closure.   In many cases,  the interim
 status regulations  (Part 265, Subparts F and G)  can and should be
 used  to  address ground-water quality issues  at  closure.  Post-
 closure  permits,  corrective  action orders (RCRA $3008(h)), and
 corrective action  authority  under RCRA $3004(u)  can and should
 be usod  when applicable  and  necessary to supplement these  regula-
 tions to address  contaminated soils or ground water at  closing
 facilities.  For  example,  approval and completion of a  closure* by
 removal  under  $$265.228  or 265.258 does not  preclude the Agency's
 ability  to use 3008(h) orders,  3004(u)  authority,  or other appli-
 cable RCRA provisions as necessary.

      For facilities with closing  land disposal  units,  the  facility
management process  (as described  in the FY 86 RIP)  will be used
 to determine the most appropriate course of  action. The strategy
 for each facility will depend upon the specific facts  of each
 case.  All closures,  however, should be guided  by the principles
 outlined in  this memorandum.

 New Authorities

     Several new tools are available to the  permitting  and
enforcement  programs  to  supplement the  closure  process  of
Part 265.  These new  authorities  should be used  (when applicable
 and wijthin the context of  overall Agency priorities) to assure
 that adequate ground-water monitoring and protection are imple-
mented at closing facilities.   The following provisions  of the
 1984 Amendments give  the Agency broad new authority to  address
potential soil and ground-water contamination at  closures

     ji3005(i) changes the  definition of "regulated  unit" in
$264.1»0(a) to include units  that  received waste  after July 26,
1982  (from the current date  of  January  26, 1983).   This  expands
the universe of facilities that is subject to the  requirement*
of Part  264, Subpart  F,  through a post-closure  permit.
         i

     i)'30Q4 (u) requires corrective action for releases  from solid
waste management units,  and  from  regulated units  (for releases

-------
                               -3-

other than ground-water releases), at facilities seeking RCRA
permits.  This authority may be used when a closed or closing
unit is located at a facility which is receiving either an operat-
ing or post-closure permit.

     |>3008(h) allows corrective action to be required at any
interim status facility with a release of hazardous waste into
the environment.  This authority may be used in tandem with the
closure process to require corrective action during or after
closure.

Additional Guidance

     This is the first in a series of guidance raemos that will
be issued regarding the closure of hazardous waste management
facilities.  Future guidance will address in detail the issues
raised in this memo, including technical and policy guidance for
closure by removal and post-closure care.  I encourage you to
contact my staff to discuss any of the issues regarding
closure and to identify any areas in which Headquarters should
be preparing additional guidance.

cct   John Skinner
      Gene Lucero
      Bill Hedeman
      OSW Senior Staff
      Peter Cook
      Lloyd Guerci
      Waste Management Division Directors, Regions I-X
      RCRA Branch Chiefs, Regions I-X
      Permit Section Chiefs, Regions I-X
      Enforcement Section Chiefs, Regions I-X
      Mark Greenwood

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                                                          9476.1935(03)
           UNITrC STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON. D.C. 204«0
  SEP M B85
                                                        Of HCt Of
                                               SOUO WASTI AND I MIMGiNCv

MEMORANDUM


SUBJECTS  Permitting  Units  Created  for Facility  Closure
FROMz     Bruce  R. Weddle,  Director
          Permits and  Statt Programs  Division  (HH-563)

TO:       Hazardous Waste  Division Directors and  Branch  Chief»
          Regions I-X

     This memorandum addresses  the question of  whether hazardous
waste management units built specifically as part of  the closure
process must by covered by  RCRA permits.   Some  facilities  have
proposed closure schemes which  involve  the creation of a new
tank, impoundment , pile* or incinerator to manage hazardous wastes
exhumed and/or transferred  during closure.  A number  of  owners/
operators have argued  that  creation of  .these new  units is  a
necessary and temporary measure to accomplish closure of regulated
units.  They have sought to have tht  new  units  approved  in their
Part 265 closure plan  rather than through the permit  process.

     In all cases, the addition of new  units requires more than
closure plan approval.   In  some cases it  requires a permit.  The
Part 264 standards apply to new units added during closure as
well as to new operating units.  The  regulations  do not  provide
a means for exempting  new units from  the  permitting standards
simply because they are used in the closure process.

     Alternatively, the addition of new units may constitute an
allowable change to a  facility  during interim status.  According
to S270.72(c), changes in processes or  addition of processes may
be »allowed if a revised Part A  and justification  are  submitted,
and the Director approves the change  because of an emergency
situation or because it is  necessary  to comply  with Federal
regulations or State or local laws.   In the case  of adding a new
unit for closure* this section  could  be applicable if the  Director
agrees that the additional  unit is necessary for  the  owner/operator
to comply with Part 265 closure requirements.   In no  case, however,
may the cost of adding these units exceed 50% of  the  cost  of
building a comparable  entirely  new facility (S270.72(e) ).

ecs  Pe emit Section Chiefs, Regions I-X
     Peter Guerrero
     Terry Grogan
     Carole Ansheles
     Amy Mills
     Dave Pagan

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                                                          9476.1985(04)
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON, D.C. 20460
                                                        OFFICE Of

                                               SOLID WASTE AND EMERGENCY
MEMORANDUM

SUBJECT:  Applicability of  Post-Closure  Permitting
          Requirements to Non-Regulated  Units

FROM:     Marcia E. Williams,  Director
          Office of Solid Waste

TO:       Charles E. Finley,  Director
          Hazardous Waste Division,  Region  X


     In your memorandum of  May 20  (attached) and  in phone
conversations with Jeff Webb  of your staff,  you requested
clarification on several points regarding closure for  disposal
facilities that stopped receiving  waste  prior  to  July  26,  1982.
Outlined below is a discussion of  those  points.

     We agree with your interpretation that land  disposal  units
that stopped receiving wastes  prior  to July 26, 1982 and closed
after January 26, 1983 are  subject to the post-closure permit
requirements of §270.l(c),  but not ground-water monitoring
requirements of Part 264 Subpart F.  We  do  not agree with  your
conclusion, however, that such a permit  could  require  compliance
with Part 265 ground-water  monitoring requirements.  Part  265 is
applicable only to interim  status  units  and cannot be  incorporated
into a permit.

     If the unit described  above is  the  only unit at the facility
subject to permitting, issuance of a post-closure permit would
have little benefit since ground-water monitoring requirements
cannot be applied.  The unit/facility in this  case should  be
closed under interim status, and thus subject  to  the general
closure performance standards  of Part 265 and  post-closure  ground-
water monitoring ($265.117), as applicable.  If the unit has
caused ground-water contamination, enforcement action  to compel
corrective action under §3008(h) should  be  initiated.  Alternatively,
if the unit is located at a facility which  has another unit(s)
requiring a permit, the 3004(u) corrective  action authority would
apply when the permit is issued since the unit is a "solid  waste
management unit."

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                             -2-
     If you have any further questions regarding this issue, please

contact Dave Fagan, Acting Manager, Permits Policy Program at
^ n*i A 1 A A
382-4740.


Attachment


cc: RCRA Branch Chiefs
    Permit Section Chiefs

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Mtv TO
ATT* Of:
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                         Seattle, tfliftfnVBn   98101

       M/S 533                 MAY 2 0
MEMORANDUM
             Applicability of 40 CFR Part 264,  Subpart  G
SUBJECT:     to Won-Regulated Units
                                          **

             Charles E. Flndley, Director/ l '
FROM-.        Hazardous Waste Division   I

_.__           John H. Skinner, Director
T0:          Office of Solid Waste (WH-562 B)


       The purpose of this correspondence 1s to confirm our  Interpretation
 of 270.l(c) which states that all owners and operators of hazardous waste
 management units must have permits during the  active life  (Including the
 closure period) and for units which close after the effective date of the
 Part 264 standards for any post-closure care period required under 264.117,

       We are Interpreting this to require permits  for  the closure and
 post-closure care of any unit not closed (Including certification of
 closure) prior to permit Issuance.  If the unit ceased receipt of wastes
 prior to July 26, 1982, the permit would not require compliance with
 Subpart F of Part 264, but with the ground water monitoring requirements
 of Part 265 Interim status.  All  other applicable  requirements of
 Part 264, particularly the closure performance standards of Subparts G, K,
 L, M, and N, would also be Imposed through the permit.

       Such an Interpretation would subject the facility to  the provisions
 of the 1984 Amendments, particularly Section 3004(u).

       We would appreciate confirmation of this Interpretation.

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                                            9476.1985(05)
                          SEC 1 } 1985
 .'is.  Ellen  E.  Eagan
 L'RS  engineers
 35uu Nortn Causeway Boulevara
 .';ec.airie,  Louisiana  70002

 buoject:   Lane  Disposal Unit Closure
           Clarification of  Proposed
           ana Promulgated Rules
           L'RS No. 520-02-96

 Dear Ms. Eagan:

      Thank  you  for your letter of  October  10,  1985, in which you
 requested  clarification of  several issues  relating to land dis-
 posal units.  We are responding to your questions in the order
 oraer in which  they were detailed  in your  letter.

      If a  land  disposal unit contains  no waste currently listed
 or characterized as hazardous, and completes all closure acti-
 vities prior  to the effective date of  any  regulation listing, or
 characterizing  a waste contained in the unit as hazardous, the
 unit would  not  be regulated under  Subtitle C of the Resource
 Conservation  and Recovery Act, as  amended  (RCRA).  If the subject
 land disposal unit is located at an interim status facility or a
 facility seeking a permit under RCRA,  certain  requirements under
 the  Hazardous and Solid Waste Amendments of 1984 (HSWA) may apply.
 Your letter did not contain sufficient information to make a
 determination on this point.  A land disposal  unit not regulated
 under Subtitle  C of RCRA would not be  required to comply with
 the  specific  regulations referred  to in your questions numbers 2
 through 6.

     In response to your question  number "I, Section 3004(o) (1 ) (A)
mandates that a permit issued to a landfill or surface impoundment
after November  8, 1984, must require the installation of two or
more liners and a leachate collection  system and ground-water
monitoring.   Section 3005(j) of RCRA prohibits surface impound-
nents in existence on November 8,  1984, and which qualify for
 interim status, from receiving storing or  treating waste after
November 8, 1988, unless the surface impoundment is in compliance
with the liner, leachate collection system, and ground-water
monitoring  requirements of Section 3004 (o) ( 1 ) (A) .  If a surface
impoundment becomes subject to these requirements after November
8, 1984, due  to the promulgation of additional listings or
characteristics for the identification of  hazardous waste, the

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                                 -2-
 surtace impoundment must comply with rh* *
 3uu4(0)
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                                                         9476.19861UD

           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, O.C. 20460



                               MAY   8 1385


                                                        OMICE of
                                               SOLID WASTE AND EMERGENCY RESPONSE
Ms. Deborah Self
Student Environmental Health Project
Center for Health Services
Station 17
Vanderbilt University
Nashville, Tennessee  37232

Dear Ms. Self:

     This is in response to the questions you submitted  in April
1986 at the Cincinnati meeting.  Your questions address  both the
particular situation of the partial closure of Chemical  Waste
Management's Ernelie facility, and the general requirements of
the closure/post-closure regulations promulgated under authority
of the Resource Conservation and Recovery Act (RCRA).

     In regard to the Cmelle facility, my staff spoke with the
appropriate staff in our Region IV  (Atlanta) office.  My under-
standing is that the situation has changed somewhat since last
July, when Region IV held a public hearing on their closure
plan.  Region IV staff said they had processed the closure plan
without a formal post-closure plan submittal because it  was a
partial closure and they were attempting to work out a new ground
water monitoring system required for the facility.  The  remaining
active hazardous waste management units will obtain an operating
permit.  Regional staff say that post-closure care will  begin at
final closure of the facility and will continue for 30 years.
However, Chemical Waste Management will be required to conduct
poist-closure activities for the partial closure, as well.  In
addition, permit conditions will need to be developed.   If you
have further questions regarding the Ernelie facility, you should
contact Craig Brown in our Region IV office (404 347-3067).

     The former procedural requirements for closure and  post-
closure carjs^were somewhat unclear regarding partial closures
and subsequent post-closure responsibilities.  We proposed amended
regulations on March 19, 1985, that attempted to clarify those
requirements.  The final regulations were published on May 2,  1986
(51 PR 16422), and will become effective on October 29,  1986.   I
am enclosing a copy of them for your information.

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     The  final  regulations  clarify  the  definition'of  partial
 closure,  hazardous waste management  unit, partial closure  noti-
 fication  requirements,  and  how  partial  closure  and  the  initiation
 of post-closure  responsibilities  interact.   I believe these
 regulations will result  in  better protection of human health and
 the environment  at all  hazardous waste  management facilities
 Thank you for your interest  in  these  issues.
                                     Sincerely,
                                     Marcia E. Williams
                                     Director
                                     Office of Solid Waste
Enclosure

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                                                                9476.1986(01a
               RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                 AUGUST 86
5.    Closure Plans  - Appeals

     The offier/operator  (o/o) of an interim status facility has submitted
     his written  closure plan at least 180 days before he expects to
     begin closure  as required by 40 CFR 265.112(c).  The EPA subsequently
     noted deficiencies  in the plan and returned it to the o/o for revision
     according to 40 CFR 265.112(d).  After the o/o has submitted his plan a
     second time, the EPA again noted deficiencies. Using the authority
     given in 40  CFR 265.112(d), EPA modified the plan and sent it back to
     the o/o as a final  closure plan.  Vhat avenue of appeal is available
     to the o/o if  he wishes to contest the modifications made to his
     final closure  plan?

          At the  present time, there are no provisions under RCRA v*iich
          would allow the o/o to appeal the final closure plan issued
          by the  Regional Administrator.  The o/o would have to pursue
          other legal recourse outside of the RCRA regulations to appeal
          the provisions in his final closure plan.


          Source:    Dov Whitman  (202) 382-7703
          Research: Kris Andersen

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                                                                    9476.1986:32)

              RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                             SEPTEMBER 86
3.  Ha2ardous Waste Tank Closure and Post-Closure

    The owner/operator (o/o) of an interim status underground hazardous
    waste Storage tank plans to close the tank.  During the operating
    life of the tank, hazardous waste leaked and contaminated under-
    lying soils.  Wiat regulations apply in this situation?

         EPA published a final rule regulating tanks holding hazardous
         waste in the July 14, 1986 Federal Register (51 FR 25422).  EPA
         revised the standards for hazardous waste tanks, effective
         January 12, 1987.  EPA stated that if an o/o demonstrates that
         all contaminated soils cannot be practically removed or
         decontaminated as required in 40 CFR 265.197(a), then the o/o
         must close the tank system as a  landfill (51 FR 25484).  The
         o/o must perform post-closure care in accordance with the closure
         and post-closure care requirements that apply to landfills
         (40 CFR 265.310).  The tank o/o must meet all of the requirements
         for landfills specified in Subparts G and H of Part 265 with
         regard to closure, post-closure, and  financial responsibility.

         Under the landfill closure and post-closure requirements (40 CFR 265.310),
         the o/o must comply with all past-closure requirements contained in 40
         CFR 265.117 through 265.120 including maintenance and monitoring through-
         out the post-closure care period.

         Not* that the above mentioned requirements for closure of hazardous
         waste tanks as landfills do not become effective until January 12,
         1987.  Tank closures occurring prior to January 12, 1987 must comply
         with prior regulations which may include 40 CFR $265.197 and §265.110
         through $265.115.  The latter sections were amended on May 2, 1986 (51
         FR 16422).  Section 265.1Kb) requires the o/o to control, minimize or
         eliminate, to the extent necessary to protect human health and the
         environment, postclosure escape of hazardous waste, hazardous constitu-
         ents, leachate contaminated run off or hazardous waste decomposition
         products to the ground or surface waters or to the atmosphere.  Since
         th« May 2, 1986 amendments were not promulgated pursant to HSVA, they
         are effective in authorized states only if the states have adopted
         revisions to their programs to incorporate these requirements.

         Also, under Section 3008(h) of the Solid Waste Disposal Act, whenever
         the EPA Administrator determines that there is or has been a release of
         hazardous waste into the environment from a facility authorized to
         operate under Section 3005(e), the Administrator may issue an order
         requiring corrective action or any other response measure necessary to
         protect .human health or the environment.

         Source:    Bill Kline  (202) 382-7917
                    Ginny Steiner (202) 475-9329
         Research:   Carla Rellergert

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              UNITED STATES fcNVIRONMENTAL PROTECTION AGENCY
                              8 OCT 86
Honorable Boh wise
House of Representatives
Washington, n.C.  20515

near f'.r. Wise:

     Thank you  for your September  4,  1986,  letter  reaardinq
closure requirements  for  surface  impoundments  under  the
Resource Conservation and  Recovery Act  (RCRA).

     On May 2 of  this year,  the Environmental  Protection
Aaency (EPA) oromulgated  final regulations  requiring  hazardous
waste facilities  to beain  closure  activities within  a specified
tine after they ceased accenting  hazardous  wastes.   FPA
nronulnated this  rule based  on the belief that expeditious
closure of hazardous  waste disposal surface impoundments,
after they are  no lonqer  receiving hazardous waste for disposal,
would innrove the protection of human health and the environment,

     The ooal of  EPA's current regulations  is  to minimize the
formation and migration of leachate to  the  adjacent  subsurface
soil, around water, or surface water*   This qoal is  achieved,
in part, through  design and  operatinq standards that reouire
placement of final covers on closing units*  EPA relies
principally on  the final cover to  provide post-closure protec-
tion of ground water.  Many  older  units are not lined, so
early placement of the final cover is important to reducing
leachate generation from the unit*

     The Union Carbide facility referred to in your  letter
i» affected by this rule since they plan to cease accenting
hazardous wastes  rather than installing a double-liner system
in accordance with the requirements of  Section 3005(j) of
the Hazardous and Solid Waste Amendments of 1984.  As you
may be aware* we  are  currently involved in  litigation with
Union Carbide on  this issue.

-------
     I hope that this clarifies EPA ' s rationale in deterninino
whether a facility he allowed to regain onen.  If I can he of
further assistance, please let "*e know.

                              Sincerely,
                              vJ. Winston Porter
                              Assistant Administrator
 WH-5«2/9ROMM/T.MCMANHS - 475-861 3/sld/9-22-R6/Control
No:AL602911/Oue Date: 9-23-«6/CONTROLLED CORRE^POMDENCE *5

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                                                                      9476.1986(04)
                   RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                   OCTOBER 86
8.  Retrofitting Surface Impoundments
    RCRA Section 3005(j)  states that except for specific cases  for which
    variances are granted a surface impoundment shall  not receive/ store, or
    treat hazardous waste after November 8, 1988 unless it  is in compliance
    with Section 3004(o)  (1)(A), the minimum technology standards for new
    surface impoundments.  Section 3004(o)(l)(A) requires new surface impound-
    ments to have two or more liners with a leachate collection system
    between the liners and ground water monitoring.  Hence,  the owner/operator
    (o/o) must either close or retrofit his surface impoundments to meet the
    minimum technology standards if he wants to operate the units after
    November 8, 1988.

    Since storage in a surface impoundment not meeting minimum  technology
    standards is prohibited after November 8,  1988, must the o/o who wishes
    to close his impoundments, complete closure by November 1988?

         No; EPA interprets the statute to require the facility to stop
         accepting waste by November 8, 1988.   The statute  does not
         require closure by that date.  Therefore, the owner or operator must
         comply with applicable closure regulations.

         The  "Interim Status of  Surface  Impoundments - Retrofitting Variance"
         (OSWER Policy Directive #9484.00-1) states that closure activities can
         occur  after  November  8,  1988,  provided  that the receipt of hazardous
         waste  stops  on or before November  8, 1988.  Therefore the owner/operator
         is  required  under 40  CFR 265.112(d)(2)  to begin closure within 30
         days after the last date on which  wastes are received.   According to
         40 CFR 265.112(d)(l)  the owner/operator must also submit a written
         closure plan to  the Regional Administrator at least 180 days prior
         to  the date  on which  closure  is expected to begin.   Therefore,  notification
         of closure of an interim status surface impoundment is required by
        June 8,  1988 unless the impoundment is  retrofitted or a variance is
         obtained  (51 FR  1644).

         Source:    Barbara Pace (202) 382-7703
         Research:  Betty Wilson

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                                                    9476.1987(01)
June 9, 1987

MEMORANDUM

SUBJECT:  Applicability of Section 3005(i) of RCRA to Surface
          Impoundment Closed by Blue Bird Midwest Pursuant to
          40 CFR §265.228(b)

FROM:     Marcia Williams, Director
          Office of Solid Waste (WH-562)

TO:       David A. Wagoner, Director
          Waste Management Division
          Region VII


     This is in response to your May 13, 1987 request for a
statutory interpretation regarding the applicability of Section
3005(i) to closure conducted at the Blue Bird Midwest facility
pursuant to 40 CFR §265.228(b).

     We have reviewed the information accompanying your request
and concur with Region VII's interpretation that unless Blue Bird
Midwest can demonstrate compliance with the standards for closure
by removal in 40 CFR §265.228(a), a post-closure permit
implementing applicable Part 264 standards, including Subpart F
ground-water monitoring and corrective action, is required.  The
post-closure permit is required regardless of whether Blue Bird
has satisfied the closure requirements of 40 CFR §265.228(b).
Your information indicates that Blue Bird has not clean closed
the swale and has not demonstrated through an adequate ground-
water monitoring system that all contaminated subsoils have been
removed or decontaminated, as required by §264.228(a).
Therefore, it appears that RCRA Section 3005(i) applies to the
closed surface impoundment at Blue Bird.  Your memorandum did not
include information indicating that Blue Bird Midwest upgraded
the ground-water monitoring system in accordance with comments in
the Region's December 29, 1986 letter.

     For your information, we expect the final codification rule
based on the March 28, 1986 proposed rule to be issued within the
next two months.  The draft final rule now in Red Border states
that the requirements of Section 3005(i) (i.e., ground-water
monitoring, unsaturated zone monitoring and corrective action
requirements applicable to new units) are applicable to all land
disposal units which received waste after July 28, 1982 or had
        This has been retyped from the original document.

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                               -2-

not closed by January 26, 1982.  The rule clarifies that land
disposal units that close by removal under interim status are
subject to post-closure permitting.

An exception to the post-closure permit requirement would be the
case where surface impoundments closing by removal or
decontamination met the requirements of §264.228(a).  The
forthcoming rule will allow the owner/operator to submit a
petition to demonstrate to the Regional Administrator that a
post-closure permit is not required for units that closed
according to Part 265 standards.  The petition must contain
ground-water and soil analytical data and other information
sufficient to demonstrate the applicable Part 264 standards for
closure by removal or decontamination can be met.  If the
"equivalency" of Part 264 closure by removal can be demonstrated,
a post-closure permit would not be required.  Public notice of
Agency actions on these petitions will follow the closure plan
public notice procedures of §265.112.

     If you have additional questions about this memorandum or
the codification rule language, please contact Matthew Hale,
Chief, Permits Branch at FTS 382-4740.

cc:  Terry Grogan, OSW
        This has been retyped from the original document.

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                                                                     9476.1987(03]
                RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                   TUNE  87
4.  Clean Closure

    Section 265.228(a) of the recently promulgated  amendment to the
    surface impoundment closure and post-closure care rule, published
    in the Federal Register on March 19,  1987 (52 FR 8704), states that
    various facility elements (e.g., contaminated subsoiIs, liners, and
    structures)  mast be removed or decontaminated before clean-closure
    can occur.  Contaminated groundwater is not listed among those
    elements.   Must affected groundwater also be removed or
    decontaminated before clean closure is possible?

       In the  preamble to the final rule the Agency stated that it
       interprets the term "contaminated subsoils"  to include contaminated
       groundwater (52 FR 8705).  The preamble also states (52 Fjl 8706)
       that owners and operators must remove all wastes, liners, and all
       materials contaminated with waste or leachate (including groundwater)
       that pose a threat to human health or the environment.

    Source:    Ossi Meyn   (202) 382-7597
    Research:   Kurt Patrizi

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                                           9476.1987(05)
     RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                  SEPTEMBER 87
2.    Certification of Closure

     The owner/operator  of a hazardous waste management unit
     is conducting closure and hires a  contractor to certify
     the   closure.      40   CFR   264/265.115   state  that
     certification of closure must be made by an independent,
     registered,  professional engineer.  Can the engineer who
     is employed  by the  contractor  performing  the closure,
     certify the  closure of the facility?

          Yes,   the  "RCRA  Guidance  Manual  for  Subpart  G
          Closure and Post-Closure Care Standards and Subpart
          H Cost   Estimating Requirements"  clarifies that an
          "independent" engineer cannot be  directly employed
          by the   owner or  operator of  the unit.  Also, the
          May 2.  1986 Federal  Register (51  FR 16433) states
          that,  "...  the certification  should be  made by a
          person   who  is  least  subject  to   conscious  or
          subconscious pressures  to certify  to the adequacy
          of a  closure that in fact is not in accordance with
          the approved closure plan."

     Source:   Sharon Frey  (202) 475-6725
     Research:  Chris Bryant

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                                                    9476.1987(07)
              RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                           NOVEMBER 87


4.    Closure Plan Public Comment Period

     As specified in Section 265.112(d)(4),  the Regional
     Administrator has ninety (90)  days to approve, modify or
     disapprove the closure plan for an interim status facility
     once it has been submitted for consideration by the owner
     operator.  The section also provides for a 30 day public
     comment period on the content of the plan, which is to be
     carried out during the 90 day term.   It is initiated via a
     notice in the local newspaper.  It is unclear as to when
     this public comment period would begin.   Is it immediately
     upon receipt of the plan without an initial approval by the
     Regional Administrator?  Or would it begin only after a
     preliminary screening by the Region?

          Section 265.112(d)(4)  provides for a 30 day public
          comment period on the content of a proposed closure
          plan for an interim status facility and does not state
          when this period is to be initiated.  The Agency has
          not issued any specific guidance,  because the practice
          will vary from site to site depending on the detail and
          complexity of the individual plan.   Owners and
          operators may request public hearings in addition to
          comment periods.   The Regional Administrator also may
          schedule a hearing at his own discretion.  The Regional
          Administrator may schedule the hearing with or without
          the benefit of the response from the public comment
          period; regardless,  the hearing must be noticed 30 days
          prior to its occurrence.   It is therefore conceivable
          that, within the framework of the  90 days allowed, the
          time reguired to fulfill  both regulatory requirements
          could be as long as  60 days,  or as short as 30 days
          (for current notice  of the hearing and the comment
          period).  The Regional Administrator will review the
          plan prior to offering the contents  for public review,
          and will approve,  modify  or disapprove its contents
          within 90 days from  the date of submission.

     Source:     Chris Rhyne  (202)  382-4695
     Research:   Andy O'Hare
       This has been  retyped from the  original  document.

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tc *""»»
                                                             9476.1937(08;
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                         WASHINGTON, DC. 20460
                                                         oe-'ce .-
                                                SOLID WASTE ANC EMS«-f
   MEMORANDUM
   SUBJECT:   Closure  and Post-Closure Issues
   FROM:      Marcia  E.  Williams,  Director
             Office  of  Solid Waste (WH-562)
  TO:        Robert  E.  Greaves,  Chief
             Waste Management Branch (3HW30)
             Region  III
        Thank  you  for  your November 1,  198? memorandum in which
  you  requested clarification of several Issues  relating, to closure
  of interim  status surface impoundments.   The clarification of
  these issues follows  the same format aa  presented In your
  memorandum.  The answers to questions one and  two are derl/-1
  from the  draft  guidance, "Surface Impoundment  Clean Clc,s:.r
  Guidance  Manual" (October 12, 1987).

        1.   For an interim status surface impoundment Miat is
            closing by removal under $265.228(a)(l), but has not
            triggered  ground-water assessment under §26<3.93(d',
            It Is  not  necessary to monitor  ground water for
            the full list  of Appendix VIII  (or IX) constituents.
            A  ground-water evaluation conducted aa part of tho
            clean-closure  demonstration should establish the
            chemicals  that may be reasonably associated with the
            wastes managed at the Impoundment, including any'
            decomposition  products.  While  the most convincing
            means  of demonstrating the  absence of such chemica'.s is
            by performing  an Appendix VIII  analysis of the was'^e,
            this Is not  required if it  can  be demonstrated that
            only a subset  of these constituents could reasonably be
            expected to  exist at the Impoundment.

            On the other hand, if the interim status surface
            Impoundment  has triggered ground-water assessment under
            §265.93(d) and ground-water contamination lj evi* nt,
            clean  closure  Is probably not a feasible option.  However,
            should It  be determined to be feasible (see issue 3),
            the same rationale should be used to determine constituents
            of concern as  was used when ground-water assessment was
            not triggered.

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                         - 2 -
2.  Aa stated above, Appendix VIII (or IX) analysis of grourvl-
    water samples Is not necessary for a clean closure
    demonstration.  As you suggested, a combination of
    analyses for what Is likely to be present In the waste
    coupled with an explanation of the basis for not analy-lng
    the remaining hazardous constituents would be appropriate
    In most Instances.

3.  The general closure regulations (§265.113(b)(l)(i))
    allow the 180 day closure period to be extended If the
    closure period will, of necessity, take longer then 180
    days to complete.  This rule allows fop flexibility In
    complex closure situations, and In other situations
    where the owner or operator cannot practicably complete
    closure expedltlously.

    However, we generally believe that ground-water contami-
    nation should be addressed under a corrective action
    program—preferably In the context of a permit, since
    ground-water contamination clean-up usually Involves an
    extended clean-up period.  Most operators attempting to
    close units that have ground-water contamination will
    need a post-closure permit and therefore are not lik^y
    to be able to clean close.  We recognize, however, tn.at
    under some limited circumstances an owner or operator
    may be able to demonstrate that clean closure Is possible
    after a very short ground-water corrective action effort
    (perhaps less than one year).

    Should this be the case, the Regional Administrator
    has the option under §265-113(b)(1)(1) of extending the
    closure period to implement such an effort.  Protracted
    or indefinite closure periods designed solely for the
    purpose of ground-water clean-up are not acceptable.'
    Under these circumstances a post-closure permit containing
    corrective action schedules of compliance should be
    used or a 53008(h) corrective action order.

4.  Th« Final Codification Rule published in the Federal
    Register on December 1, 1987 (52 FR 45788) addresses
    this Issue directly.  In essence, the rule states that
    units closing by removal under Part 265 standards must
    obtain a post-closure permit unless the owner or operator
    can demonstrate to the Regional Administrator that tr.e
    closure met the standards for closure by decontamination
    in section 264.228, 264.280(e) or 264.258, respectively.
    The rule further outlines approaches for making the
    demonstration.  A copy of the rule is attached for your
    information.

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                              - 3 -
     5.  When FPA has Issued guidance that Interprets a pernit
         or closure requirement, States should follow that
         guidance for comparable State requirements or be able
         to explain why their approach Is equivalent or more
         stringent than the Agency's approach.  In overvlewin^
         State permits and closure plans the Region should follow
         the approach outlined In the permit quality and closure
         plan protocols which cross reference regulatory require-
         ments and applicable guidance; the State administrative
         record should be consulted to determine how the State
         has interpreted those State regulations (comparable to
         the Federal) for which we have Issued guidance.  Of
         course, If a "more stringent" EPA regulatory amendment
         or rule clarification requires the State to amend Its
         regulations, the State should follow the procedures
         and tlmeframes In Part 271 for program revisions.

     Should you require further clarification of these Issues
pl&ase contact Chris Rhyne of ray staff at PTS 382-^695.

Attachment

cc:  RCRA Branch Chiefs, Regions I-X

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                                                     r      9476.1988(01



i  *        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON. O.C. 20460
                              4AN 2 9 i988
    JAN 29 1988
                                                       OFFICE OF
                                              SOLID WASTE AND EMERGENCY SESPONSE

  Mr.  John  Ramsey
  Environmental  Engineer
  Bureau  of  Waste Management
  Kansas  Department  of Health
    and Environment
  Forbes  Field
  Topeka, KS   66620-0001

  Dear Mr.  Ramsey:

         This  letter is in  response  to  your  December  29,  1987
  inquiry regarding  closure requirements at  facilities  having
  delisting  exclusions revoked.   Specifically,  you requested
  guidance  on  the applicable closure requirements  for units at
  facilities whose State-issued  final delisting decisions (granted
  before  the enactment of HSWA)  were being revoked based  on
  re-evaluations of  their petitions  using HSWA  criteria.   To date/
  we have not  revoked a Federally-issued final  delisting  exclusion.
  We have,  however,  denied  final exclusions  (as a  result  of HSWA
  re-evaluations)  for wastes that had been issued  temporary
  exclusions based on pre-HSWA criteria. This  letter,  therefore,
  only provides  insight to  policies  concerning  the regulatory
  status  of  Federally-issued final exclusions and  temporary
  exclusions that have been revoked.

         Since the state of Kansas has  been  authorized  by EPA  to
  administer and enforce hazardous waste management programs
  pursuant  to Section 3006  of  RCRA,  42  U.S.C. Section 6926, the
  closure requirements for  the waste units at the  subject
  facilities should  be determined by State authorities. The Federal
  policies discussed in this letter  may be helpful as guidance in
  determining the closure requirements  for the  units at those
  facilities where State-issued  final exclusions are being revoked.

        The regulatory status of wastes that have been granted
  exclusion  from Subtitle C regulation  is dependent on the
  retrospectivity given to  the type  of  exclusion granted.  For
  wastes  that are granted final  exclusions,  the Federal policy is
  i:hat  these exclusions are fully retrospective (i .e.,  the waste is
  assumed to have always been  non-hazardous).   In  these cases, the
  units handling wastes that were issued final  exclusions are not
  subject to Subtitle C regulation  unless the  unit also contains or
  had  contained  other non-excluded hazardous wastes.

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                               - 2 -
     _ Some Federal temporary exclusions were granted based on
pre-HSWA criteria evaluations and later denied final exclusion
after r«-«valuations using post-HSWA criteria.  In these cases we
have adopted a policy which, in short, states that these wastes
were non-hazardous only during the time that the temporary
exclusion was in effect.  The regulatory status of the units
containing such wastes is, therefore, dependent on whether those
units accepted the temporarily excluded wastes before the
temporary exclusion was in effect and/or whether the same unit
continued to accept these wastes after the temporary exclusion
was revoked and a final denial issued.  Attachments I and II
address the Federal regulatory status of units and the interim
Status of facilities that handled wastes that were temporarily
excluded and then denied final exclusion.

       Your letter makes reference to Section 3005(i) of RCRA and
the possible implications for State implementation.  Please note
that Section 3005(i) is a HSWA provision and as such is
implemented by EPA until a state is specifically authorized for
that provision.  Also, please note that the key "trigger" under
Section 3005(i) is receipt of hazardous waste after July 26,
1982. It may be beneficial to consult your legal office to
determine if Kansas has a State requirement which parallels
Section 3005 (i) and if so, what consequences the State equivalent
regulation may have on the regulatory status of revoked final
exclusions.  The applicability of a State equivalent to 3005 (i)
and its effect on revoked exclusions may be dependent on the
retrospectivity given to State-granted final exclusions.

       I hope this letter has provided some guidance to assist
you in developing closure policies for the subject waste units.
If you have any further questions, or wish to discuss our
delisting or closure policies in more detail, please feel free  to
contact me at FTS 382-4206.  I will be Acting Branch Chief  for
Suzanne Rudzinski until March.

                              Sincerely
                              Elizabeth Cotsworth, Acting Chief
                              Assistance Branch

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                                                       9476.1989(02
I *£&*
 i^^t^
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, O.C. 20460
                           AUB 22669
                                                         OFFICE OF
                                                 SOLID WASTE AND EMERGENCY RESF
MEMORANDUM
SUBJECT: Correction to the Delay of Closure Rule Preamble Language

FROM:    Joseph s. Carra, DirectorfL^//
         Permits and State PrograraTDivision  (OS-340)

TO:      Permit Section Chiefs I/
         Regions I-X

    This memorandum clarifies a discrepancy in the Delay of
Closure final rule published in the Federal Register of August 14,
1989 (54 FR 33376).  The discrepancy involves the time frame  for
submission of permit modification requests for owners and
operators of permitted facilities that wish to receive
non-hazardous wastes after the final receipt of hazardous wastes.


    The rule language at $264.113(d)(4) correctly stated that the
    request must be submitted no later than 120 days prior to the
    date on which the owner or operator of the facility receives
    the known final volume of hazardous wastes at the unit or no
    later than 90 days after the effective date of the rule  in the
    state in which the unit is located, whichever is later.   This
    language is found at 54 FR 33395.

    The preamble language incorrectly stated that the request must
    be submitted at least 120 days prior to final receipt of
    hazardous wastes, or within 90 days of ptihiiration of the
    Federal Register notice.  This language is found at 54 FR
    33377.

    We do not intend at this time to publish  a Federal Register
correction notice.  If you have any questions about this, please
call Barbara Foster at FTS 382-4751.

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                               -2-
     Your third question asked if the interim status closure
plan has to include all units that are listed in the Part A or
solely those that have actually been constructed.  Your interim
status closure plan must account for all units that have been
constructed.  According to 40 CFR §265.112(b)(1), the closure
plan must include a description of how each hazardous waste
management unit at the facility will be closed (51 FR 16422);
it is not required to address closure of units planned in the
future.  Of course, before further units or cells are put into
service, the plan must be revised in accordance with applicable
regulations.

     Please be reminded that the above responses are based on
the Federal RCRA regulatory requirements at 40 CFR Part 265.
States authorized to implement the RCRA program may have
adopted more stringent requirements.  Should your facilities be
located in authorized states the applicable state law applies.

     If you have any further questions, please call Sharon Frey
at FTS 475-6725.
                                Sincerely,
                                Jeffery D. Denit
                                Acting Director
                                Office of Solid Waste
cc:  Robert Greaves, Region III
     Kenneth D. Feigner, Region X

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                                                                   r
                                                         9476.1988(02a
MAR 2  1986

 MEMORANDUM


 aUBJECT:  Cleanup  Levels  ror  Lead  and Cadmium
          in 5oils  for  RCRA Clean  Closures

 FROM:     Jeffery  D.  Denit, Acting Director
          Of f ice of  Solid  Waste

 TO:       David A.  Wagoner. Director
          Waste Management Division
          Region VI 1


     In your memorandum  of  December 29,  1987. you  requested
 guidance on setting  soil  cleanup  levels  for  lead  and  cadmium  at
 RCRA  facilities that  intend to achieve  clean closure.   As  you
 know, the preamble  to the  March  19,  1967,  final regulation
 (conforming 265.228(a)  to  264.228(a)> stated that verified
 Reference Doses (RfDs)  and Carcinogenic  Potency Factors  (CPFs;
 could be used as Agency-recommended  limits  for contaminants such
 as  lead and cadmium,  where appropriate,  to  set soil cleanup
 levels.  The verified RfD  would  be the  most appropriate  criteria
 for  setting a soil  cleanup  level  for contaminants that  are not
 known to have carcinogenic effects,  and  the CPFs  would  be  the
 most  appropriate limit  for carcinogens.

     The preamble also states  that,  in cases where no  EPA
 •recommended limit  exists  for  a specific  contaminant,  a  soil
 cleanup level may  be  based on either:

     1.   background  levels; or

     2.   data developed by the owner or  operator  to support a
         health-based limit.

 When  neither of the  above  is  feasible,  clean closure  cannot be
 achieved and the unit must be closed under  the  landfill  closure
 requi rements.

     Presently, the  Office  of  Research and  Development is
 investigating recent  data  on  the  toxicity  of  lead and cadmium.
 Over  the next several months, decisions  will be made  on an RfD
 for  cadmium and ah  RfD  and a  CPF  for  lead.  The Office of

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                              - 2  -
Dr i nk i ng_ Water will soon propose a Maximum Contaminant Levei.Goai
'MCLGJ tor cadmium, and mav be revising tne current Maximum
Contaminant Level  iMCL> ror .cad.  it is apparent, therefore, tnat
tne toxicologicai  information on ieaa and cadmium is unaereo:ne
extensive Agencv review, ana decisions on relevant heaitn-oasea
standards -are currently oeing maoe.

    Aitnouan '.ne RfD Workgroup has not formally approved tne 5 r 1>
ror cadmium,  it  is likely that a value of 0.0005 mg/kg/day wii;
be approved as an  RfD for cadmium when the Workgroup meets in
March.  Since tnis  value is the same as the one proposed in the
n'icKOk study,  1  recommend that it be used to set a soil cleanuo
ievei  at the Frit  industries site in Humboldt.  iowa.  The cleanup
level  ror cadmium  is.  therefore,  9 mg/kg. which agrees witn tne
ievel  stated in  your memo,  as calculated by Region Vli.

    Presently,  the Carcinogen Assessment Group (CAG> of ORD is
evaluating lead  as a potential human carcinogen via the oral
route of exposure.  GSW has requested that CAG estimate a CPF for
lead based on current toxicitv studies, and has requested that an
RfD be developed by the RfO Workgroup on the basis of new
toxicologicai  data on the non-carcinogenic,  neuro-behaviora1
effects of lead  exposure. It is not  likely,  however, that the CPF
or the RfD will  be developed and approved soon. Therefore,  I am
recommending that  soil cleanup levels for lead should be based on
local  background soil  lead levels.

    You can use  either of the following approaches to determine
the background levels for lead in soils:

    a.    Take soil  samples at uncontarninated areas of the
         facility  and at various depths to ensure
         representativeness and random distribution.  Analyze the
         sample  for total lead.

         Refer to  Mason, B.J., 1963 and Barth. S., et. al..  I96u
         for guidance on soil sampling and quality assurance
         procedures: or

    b.    Consult the open literature for published data on  lead
         levels  in soils of similar origin and chemical
         characteristics as the soils  in the immediate area or
         the facility.  Using the U.S. Department of
         Agriculture's Soil Conservation Service classification
         system,  it should bo possible to identify similar soils
         and corresponding levels of naturally-occurring lead
         that could establish background levels.  One  publication
         ^Connor.  J..  et. al.. 1975) reports average  lead
         concentrations of 30 mg/kg or  less in surficial soils
         across  the United States.

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    Attached for your information are comments marked on a copv
of the Hickok report by Lisa Ratcliff or OSU's Technical
Assessment Branch,  as well as a fact sneet on lead oreparea b v
the Office of Waste Programs Enforcement 'for internal EPA use
only..  These materials summarize the Agency's current
recommendations on the effects of exposure to lead and cadmium.

    The Surrace Impoundment Clean Closure Guidance Manual that
-•as prevised tc your staff on October 12. 1957.  for  review,
provides additional information on adjusting soil  levels to
account ror certain site-specific factors.  Although  tnis
guidance has not been cleared through the Agency review  process.
vou can use the information contained in Chapters  <*  and  5 or tne
October 12. 1967.  draft until such time  that the final guidance
manual is available.  These chapters provide information on tne
removal of wastes,  contaminated- soils,  ground water,  ana other
materials, and on rollow-up monitoring and sampling  to ensure
that the cleanup levels have been met.  If there are  any  further
questions on clean closure, please contact Jim Bachmaier of the
Land Disposal Branch at FTS 475-8859.  Any questions  regarding
toxicity studies should be directed  to Lisa Ratcliff  of  the
Technical  Assessment Branch at FTS 382-^781.

Attacnments

cc:  Joseph Carra
     Robert Tonetti
     A 1 ess i utte
     James Bachmaier
     Lisa Rate 1i f r

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: erenca-s :

   Barth,  S.,  et.  al..  196<*.   Soil  Sampling
   Quality  Assurance  User's  Guide-
   kEPA/600/<*-6«/043'  USEPA-Las vegas,
   Nevada  * N T i 5 :  PB 8^-196-621 >

   Connor.  J..  et. al.,  1975.   Background Geochemistrv
   Some Rocks.  Soils.  Plants,  and  Vegetables in the
   Conterminous  United  States.   (.Geological Survey
   Professional  Paper  57<*-F;.  U.S.
   Government  Printing  Office.  Washington,  D.C.

   Mason.  B.J..  1983.   Protocol for  Soil
   Sampling:   Techniques  and  Strategies.
   vEFA/600/5«/63/02G>  USEPA  -
   Las Vegas.  Nevada  ^NTIS:  PB  83-206-979;

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                                                  9476.1988(03)
                RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                  APRIL 88
3.  Post Closure Plai

   According to Section 264.197(c) an owner or operator of a tank system that does not have
   secondary containment meeting the requirements of Section 264.193(b) through (0 and
   is not exempt from the secondary containment requirements in accordance with Section
   264.193(g), must have a contingent closure and post-closure plan that meets all closure,
   post-closure and financial responsibility requirements under Subparts G and H of Part
   264.  If the facility's permit for an underground tank system specifically states that no
   post-closure care is required, must a contingent post-closure plan still be prepared and
   submitted as required by Section 264.197(c)?

    No, the facility's permit would shield the owner or operator from the requirement to
    prepare and submit a contingent post-closure plan.  According to Section 270.4(a),
    compliance with a RCRA permit during its term generally constitutes compliance for
    purposes of enforcement with Subtitle C of RCRA. However, the facility would also
    be required to dean dose. Alternatively, the Director (in either the Regional Office or
    the State, as appropriate) could modify the permit under Section 270.41 to require post-
    dosure care and the submission of post-closure plans for cause, such as new informa-
    tion or new regulations.  For instance, if the permit was issued before the hazardous
    waste tank regulations were revised to require post-dosure plans (July 14,1986) and the
   tank system cannot be dean dosed, the Director may modify the permit to require post-
   dosure care as required by Section 264.197(b).                              ^

  Source:       Chester Oszman   (202) 382-4498
  Research:     Joe Nixon

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               UNITED SI ATes ENVIRONMENTAL PROTECTION AGENCY

                          WASHINGTON, O.C. 20460

^t i   ~
                                 27 MB
                                                 SOLID WASTE AND EMeRGENC
  MEMORANDUM

  SUBJECT:  Interpretation of the Use of /Boil Background Levels as
            Clean Closure Standards    •
  FROM:     Sylvia K. Lowrance,
            Office of Solid Waste (WH-5'62)

  TO:       William Muno, Acting Associate Director
            Waste Management Division, Region V (5HS-13)


      The purpose of this memorandum is to provide an interpreta-
  tion, as requested by you in your May 9, 1988 memorandum, on the
  u»e of soil background levels as clean closure standards under
  RCRA.  Please note that we have recently responded to a similar
  request from Region VII.  The attached memorandum from Jeff Denit
  to David Wagoner dated March 2, 1988 presents our position on when
  soil background levels should be used as clean closure standards.
  This interpretation is based on previous discussions on this topic
  included in the preamble to the March 19, 1987 final regulation
  (conforming 265.228(a) to 264.228(a)) and in the subsequent notice
  of clarification to the final regulation (March 28, 1988).

      The March 19 preamble states that exposure levels, or clean
  closure levels, must be based on Agency-recommended exposure
  levels or factors that have undergone peer review by the Agency.
  If no Agency-recommended exposure limit exists for a specific
  hazardous constituent, the clean closure level must be based on
  either a background level or an exposure level submitted by the
  owner or operator based on toxicity data of sufficient quality for
  the Agency to determine the environmental and health effects of
  the constituent.

      In response to the issues raised in your memorandum  regarding
  the Burnham Corporation foundry in Zanesville, Ohio,  I want to
  emphasize two points raised in the March 2 memorandum.   First, the
  toxicity data for lead and cadmium are still being reviewed by the
  Office of Research and Development.  However, we expect  a verifi-
  cation of the cadmium reference dose (RfO * 0.0005 mg/kg/day) by
  the RfD Workgroup in the near future.  As a result, I would
  continue to recommend that the soil clean closure level  for  lead

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                                -2-


be based on background soil levels and the level of 9 mg/kg be
used as the clean closure level for cadmium.  Also, the March 2
memorandum states that two approaches can be used to determine
background levels for lead; either by taking soil samples at
uncontaminated areas of the facility or by using published
literature data on lead levels in similar soils.  It should be
noted that background soil samples should be taken from an area(s)
that has not been affected by routine operations of the unit, by
accidental or emergency incidents, or by other operations at the
facility.  Your statement describing the selection of background
samples appears to fulfill this requirement.

    If you have any questions regarding the above comments and
recommendations or require further assistance, please feel free
to contact Mark Salee of my staff at (FTS) 382-4755.

Attachment

cc:  Regional Division Directors
     Jeff Denit, OSW
     Bruce Weddle, PSPO
     Joe Carra, WMD
     D«v Barnes, CAD

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           own• mm w^MNWlnva WOTKTON AGENCY
                                                     9476.1933(04)
MEMORANDUM

SUBJECT:  Guidance on Deadlines Applicable to Proposed Delay
          of Closure Regulation

FROM:     Sylvia K. Lowrance, Director
          Office of Solid Waste

TO:       Hazardous Waste Regional Division Directors
          Regions I-X


     Attached you will find a copy of the "Delay of Closure"
regulation, to be published in the Federal Register in about
two weeks.  Many questions have been received, both from the
Regions as well as industry, on how this proposed rule might
affect facilities which will cease the receipt of hazardous
wastes to comply with the November 8, 1988 statutory
requirement for retrofitting of surface impoundments.

     The purpose of this memorandum is to provide guidance on
these issues, particularly the timing for closure plan
submittals and approvals in light of the proposed Delay of
Closure regulation.

     Statutory and Regulatory Requirements

     According to statute, interim status surface impoundments
that have not been retrofitted or have not received a retrofit
waiver must cease the receipt of hazardous waste by November 8,
1988.  By current Federal regulation the final receipt of
hazardous waste triggers initiation of the closure process for
the unit (40 CFR 264/265.113).  Furthermore, under current
regulations, a facility owner/operator without an approved
closure plan who intends to close an interim status surface
impoundment rather than retrofit must submit a closure plan to
the. Regional Administrator by no later than June 13,  1988  (180
days before the "expected date" of closure - which is December
8, 1988, i.e., 30 days after the last receipt of hazardous
waste). See 40 C.F.R. S265.ll2(d)(1) and  (2).  An
owner/operator with an approved closure plan who intends to
close a permitted or an interim status surface impoundment must
notify the Regional Administrator 60 days prior to the time
closure is expected to begin.  Since the  "expected date" of
closure must be no later than December 8, 1988, notification
must occur by October 10, 1988.  See $$264.112(d)(1)  and  (2)
and 265.112(d)(1) and (2).

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                               -2-


     TRese requirements and timeframes are more fully described
in OSWER Policy Directive #9484.00-5-a, October 15,  1987.
These requirements are currently unaffected by the proposed
Delay of Closure rule, since the existing regulations remain in
effect until the proposal is finalized and adopted in
authorized States.  However, once finalized, this rule would
allow landfills, and in more limited circumstances, surface
impoundments to postpone closure to receive non-hazardous
wastes after the November 8, 1988 retrofitting deadline.   Some
owner/operators of these types of units may wish to avail
themselves of this alternative.  However, such units are still
subject to all closure plan submission deadlines.

     Synopsis of Proposed Regulation

     Briefly, the proposed rule allows owner/operators to delay
closure of surface impoundments and landfills to receive
non-hazardous waste after they cease receiving hazardous waste.
(Units which have lost interim status are ineligible.)  The
rule contains general requirements imposing a set of conditions
that are applicable to all owners/operators who wish to defer
the closure process, regardless of the unit type.  These
general requirements are basically the same for permitted and
interim status facilities.  There is also an additional set of
requirements for surface impoundments that do not satisfy the
minimum technology requirements.  The proposed regulation is
not a means for facilities to circumvent closure; rather, it is
designed to allow units with existing capacity which are
operating in an environmentally protective manner to use their
remaining disposal capacity.  The proposed requirements are
stringent and we believe that most existing, non-MTR surface
impoundments will find it difficult to meet the criteria to
delay closure to receive only non-hazardous wastes.  We
emphasize that all units that meet the criteria for delaying
closure will remain subject to Subtitle C requirements,
including final closure requirements when they stop receiving
non-hazardous waste.

     General Requirements

     All units wishing to delay closure must obtain a Subtitle
C permit and comply with applicable permit requirements.  As
part of the permit modification or Part B permit  application,
the owner/operator must include demonstrations shoving that the
unit has the existing design capacity to manage  non-hazardous
v/astes and that the non-hazardous wastes are not  incompatible
with any remaining wastes in the unit.  The permit modification
or the Part B permit application must  include  revised facility
plans, including waste analysis, ground-water  monitoring,  and
closure and post-closure plans, and,  if necessary, closure  and
post-closure cost estimates and financial assurance  to  reflect
changes associated with operating the unit  to  receive only
non-hazardous wastes.

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                               -3-


     Specific Requirements for Surface Impoundments

     An additional set of requirements will apply to surface
impoundments that do not satisfy the HSWA double liner and
leachate collection system requirements or have not received a
waiver from these requirements.  For these units, we are
proposing a combination of source control, accelerated
corrective measures, and limitations on continued operations
following a detected release to ground water,  (see
attachment).  At the time the decision is made to delay
closure, owner/operators must choose one of three alternatives:
(1) to leave the wastes in place (i.e., disposal impoundments);
(2) to remove the waste from the impoundment; or (3) to remove
sludges and flush the impoundment with non-hazardous wastes.
Alternative 1 is available only to impoundments which have not
had a release at the time of conversion to receipt of only
non-hazardous waste.  If such an impoundment begins releasing,
closure is triggered.  If a unit that has undergone waste
removal is leaking at the time it converts to receipt of
non-hazardous waste, this receipt may not begin until
corrective measures are implemented.  On the other hand, if a
unit that has undergone waste removal begins leaking after the
conversion to the receipt of non-hazardous waste, corrective
action must be implemented within one year of this conversion.
Any impoundment that has converted to receiving only
non-hazardous waste must show substantial progress in meeting
cleanup standards.  If neither of these requirements are met,
the unit must close.

     Regional Procedures

     As noted above, we believe that the proposed rule
establishes stringent requirements for those wishing to remain
open to receive non-hazardous waste.  Accordingly, we expect
that while many owners and operators may be  initially
interested in exploring this regulatory option if finalized and
adopted in authorized States, relatively few units will be able
to meet the regulatory requirements.  In light of the upcoming
November 8, 1988 deadline we offer the following implementation
questions and answers concerning closure plan review and
approval procedures to assist you in responding to  inquiries
from interested owners and operators:

Q.   Can a unit postpone submission of the closure  plan on  the
     grounds that the owner/operator intends to delay closure?

A.   No.  Units remain subject to the closure plan  submission
     deadlines despite this proposal.  Enforcement  authorities
     should be used if necessary to ensure that closure plans
     are submitted.  (OSWER Policy Direction No. 9900.0-1A,
     Oct. 1, 1987).

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                               -4-


Q.   May  interim status units which cease receiving hazardous
     waste on November 8, 1988 continue to receive
     non-hazardous wastes under the current regulations?

A.   Yes, in certain cases.  Interim status units are not
     required to initiate closure until the closure plan is
     approved.  Units awaiting closure plan approval may
     continue to receive non-hazardous waste.  Further, units
     may  continue to receive non-hazardous wastes during the
     closure period provided the receipt of non-hazardous waste
     does not impede the timely and effective closure of the
     unit.  The timeframes for closure are set forth in 40 CFR
     265.113.   (See OSWER Policy Directive No. 9484.00-5-a
     Oct. 15, 1987)

Q.   If a large number of closure plans are received in June
     1988, how should Regions and States set priorities?

A.   The  regulations set a 180-day timeframe for review of
     closure plans.  However, we recognize that it will be
     difficult to meet these timeframes if a large number of
     closure plans are submitted on June 13.  The RIP provides
     guidance on establishing priorities for review of closure
     plans.  Environmentally significant facilities should be
     addressed first.

Q.   Which units are affected by this proposal?

A.   The option would be available only to permitted and
     interim status facilities which submit a Part B
     application or amended application.  Facilities that have
     lost interim status (including LOIS facilities) would not
     be eligible to delay closure.

Q.   Will the rule be effective in authorized States?

A.   Authorized States will have the discretion on whether or
     not to adopt the rule since the rule is less stringent
     than the 1986 amendments to the closure regulations.
     (Please note that authorized States are required to adopt
     conforming changes to implement the May 1986 changes no
     later than January 1, 1989.  See 53 FR 7740, March  10,
     1988).  The final rule will be effective in unauthorized
     States.

0.   What affect does the proposal have on ongoing enforcement
     actions?

A.   None.  Enforcement actions underway will not be affected
     by the regulation when it is finalized; the  regulation
     will not be retroactive.

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                               -5-
     We will keep you updated on the rule development and
schedule.  If you have any further questions, please contact
Sharon Frey at FTS 475-6725.

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            UNITED STATES ENVIRONMENTAL PROTECTION A61»      9476.1989(01
  MAY I 6
MEMORANDUM

SUBJECT:  Final Rule for Delay of Closure Period for
          Hazardous Waste Management Facilities
FROM:     Sylvia K. Lowrance, Director
          Office of Solid Waste       /

TO:       Jonathan Z. Cannon
          Acting Assistant Administrator

    Attached is a final rule that amends portions of the clos£e
requirements applicable to owners and operators of hazardous  i
waste land disposal facilities.  This rule is the subject of a|
pending lawsuit brought by Union carbide and the Chemical
Manufacturers Association.

    Under existing rules, hazardous waste management units must
initiate closure after final receipt of hazardous waste.  The
attached regulations allow, under limited circumstances, a
landfill, surface impoundment, or land treatment unit to remain
open after the final receipt of hazardous waste in order to
receive non-hazardous wastes in that unit.  This rule details
the circumstances under which a unit may remain open to receive
non-hazardous wastes and describes the specific conditions
applicable to such units.

    This rule must undergo a second Red Border review and
subsequent OMB review due to changes made in the rule following
initial clearance*.  I request that this rule be handled
expeditiooaly to avoid the need for the Agency to defend the
existing (rather than amended) regulatory requirements.  The
Steering .fgapitt* has approved a 7 calendar day Red Border
review

Attachments

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                                                       9476.1989(02'
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON. D.C. 20480


                           AUB22Q8G

                                                         OFFICE OF
                                                 SOLID WASTE AND EMERGENCY RESPO

MEMORANDUM

SUBJECT: Correction to the Delay of  Closure Rule  Preamble  Language

FROM:    Joseph S. Carra, Director fL*./,
         Permits and State PrograMfHSfvision  (OS-340)

TO:      Permit Section Chiefs  I/
         Regions I-X

    This memorandum clarifies a discrepancy in the  Delay of
Closure final rule published in the  Federal Register of August  14,
1989 (54 FR  33376).  The discrepancy involves the time  frame  for
submission of permit modification  requests for owners and
operators of permitted facilities  that wish to receive
non-hazardous wastes after the  final receipt of hazardous  wastes.


    The rule language at $264.113(d)(4) correctly stated that the
    request must be submitted no later than 120 days prior to the
    date on which the owner or  operator of the facility receives
    the known final volume of hazardous wastes at the unit or no
    later than 90 davs after the effective date of  the  rule in the
    state in which the unit is  located, whichever is  later.   This
    language is found at 54 FR  33395.

    The preamble language incorrectly stated that the  request must
    be submitted at least 120 days prior  to final receipt  of
    hazardous wastes, or within 90 days of pyfriRation  of  the
    Federal Register notice.  This language is found  at 54 FR
    33377.

    We do not intend at this time  to publish  a Federal  Register
correction notice.  If you have any  questions about this,  please
call Barbara Foster at ITS 382-4751.

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                                                       9476.1989(03
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. D.C. 20480
                                   ffWft                     OFFICE OF
                                   •JBP            SOLID WASTE AND EMERGENCY "ESPONSf

 MEMORANDUM


 TO:        Terry Anderson,  Chief
           Wyoming/South Dakota Section
           EPA Region VIII

 FROM:      Frank McAlister,  Chief
           Permits  Policy Section
           Office of  Solid  Waste

           Barbara  Foster,  Acting  Chief
           Closure  and Financial ResponsibilitySection
           Office of  Solid  Waste

 SUBJECT:   Public Participation Requirements  for Closure Plan
           Approval

     This  memorandum responds to  your letter of August 7,  1989  in
 which you  requested  clarification of the  public participation
 requirements  of the  closure plan  approval process.   You
 questioned whether public  notification  is required  when the
 Agency modifies an approved closure plan  for an interim status
 facility.  The specific case you  discussed involves several
 changes to the liner system of a  landfill that  will be used  for
 clouure.   We  have  examined this request and  discussed  it with the
 Office of  General  Counsel.   Our response  is  as  follows.

     The regulations governing amendment  of  interim status
 closure plans are  found at 40 CFR 265.112.   Section 265.112(c)(3)
 states that if an  amendment to an approved closure  plan is a
 Class 2 or 3  modification  according to  the criteria in § 270.42,
 the modification to  the closure plan must be approved  according
 to the procedures  in §  265.112(d)(4).   Based on your description,
 we believe that the  modifications to the  closure plan  would
 likely be  classified as Class 3,  and that the procedures in
 § 265.112(d)(4)  must be followed.  Under  these  procedures, the
Regional Administrator will provide the owner and the  public,
though a newspaper notice,  the opportunity to submit written
comments on the plan and request  modifications  to the plan no
 later than 30 days from the date  of the notice.  He will also,  in
response to a request from the public or  at  his own discretion,
hold a public hearing whenever such a hearing night clarify one
or more issues concerning  a closure plan. The  Regional

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                              - 2 -

Administrator will give public notice of the hearing at least 30
days before it occurs.  The amendment cannot be approved until
these procedures have been followed.

     The specific case you discussed involves the closure of five
surface impoundments.  The closure plan discusses the
construction of a landfill on the location of two of the five
closing surface impoundments.  The Region should also consider
whether the creation of this new landfill constitutes a change in
interim status under § 270.72 and therefore requires submission
of a revised Part A application and EPA approval.

     If a public hearing is held, it nay be held concurrently
with one being held by the Wyoming Department of Environmental
Quality (WpEQ), provided that the Federal procedural requirements
are satisfied. In addition/ notice should be given that there is
a separate Federal action.


     We hope that this memorandum answers your questions on thin
matter.  If you have any further questions please call Wayne
Rocpe at FTS 475-7245.

cc:  Denise Keehner
     Wayne Roepe
     Margaret Schneider, OGC
     Nandam Kenfceremath, OGC
     Pat Godsil, Region VIII
     David Christenson, Region VIII

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                         94^6.1991(01)
 MEMORANDUM
 SUBJECT:   Closure Standards for Hazardous Waste Land Treatment
           Units
 FROM:
 TO:
Devereaux Barnes, Director
Permits and State Programs Division
Office of Solid Waste (OS-340)

Doug McCurry, Chief
Waste Engineering Section
RCRA Branch, Region IV
      You previously  raised  a series  of questions regarding  the
Closure of.  hazardous  waste land treatment units to my staff and to
Rhe ORD  laboratory  in  Ada  (RSKERL-Ada).    These are  important
 questions since many  land  treatment facilities are beginning to
 close in response to  the November 8, 1990 prohibition of the land
 disposal of  the  petroleum  refining wastes  (K048-52).    After
 consulting  with RSKERL-ADA, as well as internally, we are providing
 you with the  answers  you sought.   It is  important to keep in mind
 that of  the  four major  types of  land  disposal units,  the land
 treatment unit is the most difficult  for which to define generic
 technical closure procedures.  This is  due to the fact that the
 characteristics of the soils  affecting  the  closure are by nature
 site-specific,  and that the wastes are to be transformed, degraded,
 or immobilized during the closure  process by the soil, biologic,
 and climatic  conditions unique to each site.  With this constraint
 in mind, we  have addressed  your questions  as  specifically as
 possible:

 1.    Q.  Is  soil sampling required during closure/post closure?

      A.  Section 265.280(d)(1)  requires that during  the closure
          period the owner or operator  of an interim status land
          treatment facility continue unsaturated zone monitoring
           in  a r-nner and frequency specified in the closure plan,

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          90 days  after  the last  application of  waste  to the
          treatment zone.   Unsaturated zone monitoring consists of
          both soil-pore  liquid monitoring and analysis  of soil
          cores (see Sections 265.278(a) and (b)).

          In addition,  Section 265.280(f) requires that during the
          post-closure care  period the owner  or operator  of  an
          interim status  land treatment unit must continue soil-
          core  monitoring  [soil  sampling]  in the  manner  and
          frequency specified in the post-closure plan.

          Similarly, permitted units must continue unsaturated zone
          monitoring during closure and post-closure care periods,
          as specified in the  permit  (see  Sections 264.280(a)(7)
          and (c)(7)) .

          Given the  language of Sections 264.280  and 265.280,  we
          expect that  in  most cases  unsaturated  zone monitoring
          (particularly soil-core)  will be necessary  during the
          closure and post-closure care periods of  a land treatment
          unit. There  are, however, limited instances where soil-
          core monitoring  may not be required by the closure and/or
          post-closure plan.  For  example,  in  the case where the
          treatment  zone  is  removed as a part  of clean closure,
          soil-core monitoring may be suspended at the completion
          of  the  closure  period.     (See. Sections  264.112(e);
          264.280(c); 265.280(d) and  (f)(i)).

2.   Q.   At what intervals and for how long?

     A.   General guidance pertaining to soil  sampling intervals
          and duration  during land treatment  site closure/post-
          closure is provided  in several land  treatment guidance
          documents:

               Guidance Manual  on  Hazardous Waste Land Treatment
               Closure/Post-Closure (OSWER Directive 9476.00-9)

               Permit   Guidance  Manual   on    Unsaturated   Zone
               Monitoring for Hazardous Waste Land Treatment Units
               (EPA/530-SW-86-040)

               RCRA  Guidance Document:  Land  Treatment (NTIS-PB-
               155065)

               Permit  Guidance  Manual  on  Hazardous Waste Land
               Treatment  Demonstrations (July,  1986)

          Although the guidance provides a general framework for
          soil  sampling,   the  geographic,  spatial,  and temporal
          variabilities between different land treatment units (as
          well  as  within  any  individual  unit) necessitate that

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site-specific   considerations    be   evaluated   when
establishing the sampling intervals and duration required
during closure/post  closure of a  given  land treatment
unit.

Data  from the  reconnaissance  survey is  used,  as  the
primary basis  for establishing  site-specific sampling
requirements.  If this survey reveals that the facility
has  been  well  managed,  with  no  apparent significant
buildup or downward migration of hazardous constituents,
the  general  guidance provided  in  the above-referenced
guidance documents can be used to establish  soil sampling
intervals  and  duration.    We  recommended  that, at  a
minimum, samples should be collected quarterly during the
closure period  and during the first  year  of the post-
closure period.  Periods between sampling events may be
gradually extended after the first  year of post-closure.

If  data  from   the  reconnaissance survey reveals  an
apparent significant  buildup and/or downward migration
of hazardous constituents,  the general  guidance alone
will  not  be  sufficient  to establish  soil  sampling
intervals and duration.  Under such a scenario, soil pore
liquid  samples  should continue  to   be  collected  as
recommended in the Permit  Guidance  Manual on Unsaturated
Zone Monitoring for Hazardous Waste Land Treatment Units
(EPA/530-SW-86-040).    The soil pore  liquid monitoring
should continue until there is  no longer potential for
vertical migration of fast-moving hazardous constituents
from  the  waste-soil  matrix.    Additionally,  it  is
important  to collect soil  cores  downward  through  the
treatment zone into the unsaturated zone for analysis at
selected intervals along the core  in order to determine
the extent of degradation and immobilization within the
treatment zone, as well as the migration of less mobile
waste constituents into the unsaturated zone.  Under this
scenario, actual degradation rate data under the closure
conditions may be  deemed important.  If such is the case,
sampling intervals should be shorter  than  specified in
the guidance.

Two recent land treatment  research  studies, sponsored by
RSKERL-Ada, provide useful guidance because they involve
a  determination   of  degradation  rates  under  field
conditions.  These studies  used the following sampling
schedule: 0, 2, 4, and 8 weeks, and continued at 4-week
intervals  throughout the  study.    Under  a  closure
scenario,  the  sampling schedule should  use these same
intervals,   or  other  type  of  appropriate  sampling
interval, until a minimum of 6 data points are obtained
or until an asymptotic constituent level is approached.
Any  time  degradation rates  are  to  be calculated,  a

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          minimum of 3  replicate  sample analyses are recommended
          for  each  sampling  date in  order to  establish  a 95%
          confidence interval for the degradation rates and half-
          lives of  the waste  and its  constituents.    After you
          determine that degradation is proceeding at an acceptable
          rate  and  that  downward  migration  is not  occurring,
          quarterly  sampling  (as  recommended  in  the  general
          guidance)^ can be initiated.

3.   Q.,   Does  EPA  recognize  approved  methods   for  determining
          degradation rates?

     A,   There  are  no  EPA-approved  methods  for  determining
          degradation  rates,   although  methods   for  determining
          degradation rates are discussed  in the Permit Guidance
          Manual on Hazardous Waste Land Treatment Demonstrations
          (LTD) .   These are  based on  methods  used in  the land
          treatment research program at RSKERL-Ada and documented
          in the lab's publications.  (See Attachment)

          The need and approach for determining degradation rates
          will depend  to a great degree  on the results  of the
          reconnaissance survey discussed under Question 2.  Under
          the  well-managed  scenario,  we can see little need to
          undertake this  task unless  the  final  loading rate is
          significantly  greater  than  that used during  normal
          operation.  Under the poorly managed scenario, we would
          consider this task a necessity.   The actual approach for
          determining  degradation  rates   would  vary  somewhat
          depending on the degree of the problem as well as waste
          and  site-specific characteristics.   In addition  to the
          treatability study approach discussed in the LTD Guidance
          Manual,   the  RSKERL-Ada   publication  Mobility   and
          Degradation of Residues at Hazardous Waste Land Treatment
          Sites at Closure (See Attachment) specifically provides
          information pertaining to the quantitative evaluation of
          mobility and persistence of organic and inorganic waste
          constituents which  have accumulated in soil treatment
          systems under various closure scenarios.

4.   Q.   Can continued operations under closure last indefinitely?
          At  what concentration  is closure complete?  At what
          concentration, degradation rate,  or  point in time does
          operational  closure  cease  and  a  RCRA  cap become  a
          requirement?

     A.   As  Sections  264.113  and  265.113  layout,   closure  is
          expected to be completed within 180 days after receiving
          the  final volume of hazardous waste, but a longer period
          may be approved if the owner or operator can demonstrate
          that closure  activities  will, necessarily,  take longer
          than 180  days   (see  Sections   264.113(b) (1) (i)  and

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          265.113 (b) (1) (i)).  In the case of a land treatment unit,
          more  than  180  days  may  be   required   to  maximize
          degradation,   transformation,   or  immobilization   of
          hazardous constituents within the treatment zone.  This
          period cannot be defined by regulation in that each site
          will require a time period specific to that  site.   The
          duration of the closure period is primarily dependent on
          the  waste  loading  rate  at  closure  as  well  as  the
          potential*waste degradation rate.  Each owner or operator
          should,  however,  be  able  to  estimate  that  time  in
          advance, based on the treatment data already established
          during operation.  For the large majority of well-managed
          land treatment units, the duration of the closure period
          will vary between 90  and 360 days.

          Because land treatment closure  is a continuing process
          rather than a set of distinct engineering procedures (as
          in landfill closure),  the concentrations of  hazardous
          constituents remaining  in  the  treatment  zone  after
          closure may vary and  will continue to  change during the
          post-closure care period.  Post-closure care  at a land
          treatment facility is different from practices at other
          closed or closing land disposal facilities in that active
          management  will   frequently   continue   to   enhance
          degradation    and    transformation    and     sustain
          immobilization.    Complete degradation  of organics  to
          background levels before closure has been completed is
          not, necessarily required.   Concentrations of  organics
          should, however, be to the point that the application of
          a  final cover and  the  reduced level  of active  site
          management will  prevent  the  post-closure  escape  of
          hazardous  constituents   from   the   treatment   zone.
          Similarly inorganics should be immobilized during closure
          to provide the same  level of protection over  the long
          term.

          In the case where closure activities fail  to immobilize
          or degrade hazardous  constituents,  an impermeable  cap
          may be required  or clean  closure may be  appropriate.
          (Changes to the closure  plan will require approval by
          the  Regional  Administrator   (Sections  264.112(c)  and
          265.112 (c)).     The   determination   of  the   rate   of
          immobilization and degradation is site specific; however,
          escape  of constituents   from  the  treatment  zone  at
          concentrations above  health-based levels indicates that
          the   rate  of   immobilization   or   degradation   is
          unacceptable.

5.   Q.   What closure standards are required where migration of
          hazardous constituents has occurred?

     A.   The general closure performance standard remains the same

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          whether or not migration  of  hazardous constituents has
          occurred.  That is,  the owner or operator must close the
          facility in a manner that  minimizes the need for further
          maintenance; and that controls, minimizes, or eliminates
          to the extent necessary to protect human health and the
          environment, the post-closure escape of hazardous waste,
          hazardous constituents,  leachate,  contaminated run-off,
          or hazardous waste decomposition products to the ground
          or surface water or to the atmosphere.  (Sections 264.111
          and 265.111).

          Where hazardous  constituents have migrated  beyond the
          treatment  zone above health-based levels,  successful
          immobilization, degradation,  or transformation  during
          closure  may be  subject  to  question.    In  this  case
          additional closure  and  post-closure activities may be
          required that go beyond disking, adding soil amendments,
          and installation of a vegetative cover.   Obviously, the
          additional  activities  will  vary  from site to  site;
          however, some of these activities  may include,  but are
          not limited to, removal of some or all of the treatment
          zone and  installation  of a  low  permeability cap.   In
          addition,  cleanup  of  the   contaminated  media,  e.g.,
          ground-water removal and treatment, may be appropriate.
          Cleanup of these media is  a corrective action decision.

          Whatever program of additional activities is selected,
          it must be consistent with the goals specified  in the
          general closure performance standard.

6.   Q.   What closure standards are required where ground-water
          contamination exists but  where levels  of contaminants
          are within the ACL's established by the permit?

     A.   At units  where ground-water contamination  exists  but
          where that contamination  is  below  the established ACL,
          corrective  action under  Section  264.100 may  not  be
          required.    The  decision  as to  whether  ground-water
          cleanup is required is site-specific, generally based on
          the principles  described  in EPA's proposed  corrective
          action rule (55 FR 30798).  At the same time, the closure
          standard to  be applied  remains the same  (see previous
          discussion).

          Furthermore, having an ACL does not negate the treatment
          demonstration requirement of Section 264.272.  If it is
          found  during closure that  constituents  are migrating
          below  the treatment  zone above  health-based  levels,
          additional steps may be required, such as treatment zone
          removal  or  installation  of  a  low permeability  final
          cover.  The determination of what steps are required will
          depend primarily upon whether the hazardous constituents

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          The owner  or operator should  be aware that  the post-
          closure care period cannot be terminated until the owner
          or operator successfully demonstrates that all the ground
          water at the site is safe  for all  potential  receptors
          (Alternate Concentration Limit Guidance, EPA/53O-SW-87-
          017).

7.   Q.   At  what point  in  the  life  of  the  unit do  closure
          activities become  in-situ remediation under corrective
          action? At what concentrations and frequencies for soil,
          pore-water, surface water and ground water?  What permit
          modifications are required?

     A.   Most actions taken  to  remedy migration of constituents
          of concern outside the treatment zone (into ground water,
          surface water, or  soil adjacent to  the treatment zone)
          at  closing  units  can be  accomplished  as a  part  of
          closure.

          At  a  permitted facility,  methods  for preventing  such
          migration should be outlined in the  permit (see Sections
          264.270-264.283).     If,   during   closure,   migratory
          constituent  concentrations  are found to  exceed  levels
          specified in the permit, a corrective action program must
          be initiated (see Sections 264.90-264.101). The addition
          of  a corrective action program requires  a permittee to
          initiate a Class  3 permit  modification,  although  some
          limited remediation activities, such as a change in the
          number of  ground-water monitoring wells  at a  regulated
          unit, may require  only a Class 2 permit modification (see
          Appendix I to Section  270.42).  Such modifications may
          receive temporary  authorization provided  they  meet the
          test of Section 270.42(e)(2).   (Of course, Class 2  or 3
          modifications would not be used in states authorized for
          ground-water corrective  action,  but not  authorized for
          EPA's new permit modification procedures.  In authorized
          States, permit modifications must be  made according to
          state modification procedures.)  In  the alternative, the
          Agency may take unilateral action to modify a permit to
          require corrective action (see Section 270.41).

          At  an  interim  status  facility, certain requirements
          designed to prevent migration of constituents of concern
          are specified  in Sections  265.270-265.282  and 265.90-
          265.94.  Unlike permitted facilities, at present, there
          are no regulatory provisions requiring corrective action
          when   migratory   constituent    concentrations   exceed
          regulatory levels  of concern.   Instead,  the Agency may
          compel corrective  action at an interim status facility
          through the issuance of an administrative  order pursuant
          to  RCRA,   Section  3008(h).    In  addition,   as  an
          alternative, the  Agency  may expedite  the issuance  of a

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                                8

          permit to  an interim status facility, with the result
          that the corrective  action provisions referenced above
          would be applicable.

          Completion of remedial  activities  may exceed 180 days.
          As mentioned previously, this is a legitimate basis for
          granting  an  extension  of [ the  closure  period.    In
          addition, long-term remediation activities at regulated
          units,  auch  as  ground-water  counterpumping,  may  be
          performed during the post-closure care period.

8.   Q.   At what  point  in  time, and to  what standards  does  a
          facility certify closure?

     A.   This question is directly related to question 4 in your
          letter.  You will  note  in Sections 264.115 and 265.115
          that closure is to be certified  when the  unit has been
          closed  in  accordance  with  the  specifications  in  the
          approved closure  plan.   Closure will be  complete when
          closure  activities  have  immobilized,   degraded,   or
          transformed hazardous constituents  in the treatment zone
          to levels  agreed  upon  in  the  closure plan  and  when  a
          vegetative cover has  been established.  In the case where
          the  treatment  zone is  ineffective,  closure  may  be
          certified after the  treatment  zone is removed or after
          a low  permeability cap is installed.  Other long-term
          activities such as ground-water remediation will normally
          be completed during the  post-closure care  period  and
          after closure certification.

     We hope these responses are useful.  Please feel free to call
Chris Rhyne (FTS 382-4695)  to  discuss- other  technical aspects of
land treatment closure.

Attachment

cc:  Sylvia Lowrance, OSW
     RCRA Branch Chiefs, Regions I-X
     Nancy Bethune, Region IV
     John Matthews, RSKERL-Ada
     Scott Ruling, RSKERL-Ada
     Tom Beisswenger, OGC
     Susan Bromm, RED, OWPE
     Chris Rhyne, AB, PSPD,  OSW
     Barbara Foster, PB, PSPD, OSW
     Dave Fagan, CAB, PSPD,  OSW

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                                                       9476.1991(02)

RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                 OCTOBER  1991


    2.  TSDF Closure/Post-Closure Attar Loss
        of Interim Status

    Pursuant to 40 CFR §270J3(cX2). a Subtitle C
    land disposal facility lost its interim status due to
    the "owner/operator's failure to submit
    certification that the facility was in compliance
    with all applicable groundwater monitoring and
    financial responsibility requirements.  The
    owner/operator has been told by his enforcement
    agency that he is required to close his facility in
    accordance with 40 CFR Pan 265, Subpart C
     closure standards. If the facility has lost its
     interim status to operate, why should the ownen
     operator be required to comply with interim
     status standards to close the facility?

           According to 40 CFR §265.1(b), the standards of
        Pan 265 are applicable to interim status facilities
        until Pan 265 closure and post-closure responsi-
        ibiliries are fulfilled. As EPA explained in the
        preamble to its November 21,1984, amendments to
        the applicability sections of Pan 265 (49 £R 46094),
        EPA has statutory authority under §3004 to enforce
        the Pan 265 standards at facilities which no longer
        have interim status to operate. The preamble
        explains that such facilities must close in accordance •
        with 40 CFR Pan 265, Subpan G.
           The September 25,1985, Federal Register (50
        ER 38949), specifically indicates that compliance
        with all applicable closure and post-closure
        requirements specified in 40 CFR 265, Subpan G is
        required when a facility has lost its interim status
        due to the owner/operator's failure to submit
        certification of compliance with all applicable
        groundwater monitoring and financial requirements
        (40 CFR §270.73(c)(2)) to the Regional
        Administrator.  Such a facility owner/operator must,
        in accordance with 40 CFR §§265.112(d)(3)(i) and
        265.118(e)(l), submit a closure and post-closure
        plan to the Regional Administrator no later than 15
        days after termination of interim status.

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Financial Responsibility Requirements
(Subpart H)
                                    ATKl/1112/18sm

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9477 - FINANCIAL
RESPONSIBILITY
REQUIREMENTS
Parts 264 & 265 Subpart H
                  ATKl/l 104/38 kp

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                                          OSWER POLICY DIRECTIVE '/9477.00-:
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON. O.C. 20460
  NOV 23
                                                        OFPICE OF
                                               SOLID WASTE AND S
MEMORANDUM

SUBJECT:  Risk Retention Groups  and-Financial  Assurance
                                       '!•'  |
FROM:     Marcia E. Williams,  Director f,; ,.?
          Office of Solid Waste
                                            f */ Vvu

TO:       Waste Management  Division  Directors,  Regions I-x


     Attached  for your  information is  a letter  from Bruce Weddle,
Director of the Permits and State  Programs  Division, to Harry Shuford
of the Environmental  Protection Insurance Company confirming that
risk retention groups may qualify  to issue  liability insurance
policies under RCRA regulations.   As the letter states, policies
issued by risk retention groups would  satisfy the RCRA requirements
if the group was licensed to transact  business  in one or more states,
and if the policy otherwise met the  RCRA financial assurance
requirements.

     Because the question of whether policies issued by risk
retention groups can  be used to satisfy RCRA  financial assurance
requirements has been raised in a  number of states, I ask that you
forward this letter to  the  RCRA financial assurance contacts in each
of your states.

     If you have any  questions  on  the  letter  ;lease contact Matt Hale
(382-4740)-or  Margaret  Schneider (382-4696) of  my staff.

Attachment

cc:  Gene Lucero

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                                                OSWtR POLICY DIRECTIVE '.'94::.:


yiT't

    1 ,
    »*/                    WASHINGTON, O.C. 20460
    .^
                                          9477.00-5
UNITED STATES ENVIRONMENTAL PROTECTION AGEf.. .
  . ««**"
                              :;ov
                                                           OFFICE OP
                                                  SOLID WASTE AND EMERGENCY B6SPONS.
      Harry Shuford
      Environmental Protection Insurance Company
      220  E.  42nd Street,  Suite 500
      New  York,  NY  1001?

      Dear Mr.  Shuford:  -

           I  am writing you,  at Robert F. Schiff's request, in
      response  to Mr.  Schiff's letter of November 2, 1987 to the EPA
      Office  of Solid Waste.   In his inquiry, Mr.  Schiff sought our
      view of whether the  Resource Conservation and Recovery Act
      (RCRA)  requirements  that hazardous waste management facilities
      demonstrate financial assurance for liability can be satisfied
      by a policy issued by a risk retention group.

           The  RCRA regulations at 40 CFR Subpart H require, in part,
      that to satisfy the  financial assurance requirements, an
      insurance  policy must  be issued by an insurer licensed to
      transact  business in one or more states.  (40 CFR 264.147(a)
      (l)(ii),  (bMlXii)  and 265.147(a) (1) ( ii) , (b)(l)(ii)).  A risk
      retention group which meets the requirements of the Risk
      Retention Act of 1986 and which is licensed to transact the
      business  of insurance in at least one state would satisfy this
      regulatory requirement.   Your letter indicates that the
      Environmental Protection Insurance Company (EPIC) has met these
      conditions. Accordingly, policies  issued by EPIC in conformance
      with all  other requirements of Subpart H could be used to
      satisfy the Federal  RCRA requirements for liability coverage, or
      the  requirements of  an authorized state tha- adopted the Federal
      regulatory language.

           I  should add, however, that compliance with Federal
      requirements may not be sufficient to fulfill state
      requirements.  State RCRA requirements may oe more stringent
      than the  Federal requirements.  In states authorized to

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                                          POLICY DIRECTIVE #9477.00-5
administer the RCRA program,  therefore,  state  regulations  must
be examined to determine whether your  specific mechanism
satisfies the RCRA financial  assurance requirements  and is
otherwise consistent with state  law.
                                    Sincerely,
                                    Bruce R.  Weddle
                                    Director
                                    Permits and state Division

<:c:  Robert F. Schiff
     RCRA Waste Management  Division Directors, Region I-X

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                                              OSWER POLICY DIRECTIVE #9477.00-5
                         WELJ-FORD, WEOMAN & HOFT

                            17O1 'CNNIYUVANIA AVCNUC. N.W.

                                   SUITE 1000

                               WASHINGTON, O.C. 2O004

                                 (302) 77S-03OO
• ICHAVD » WCOMAM  PAUL •.
HAKMKOM WCLfOlO  TNOM»« H. ITANTOM
JOHN L. IACMI     JAMMC 0. OALUAOMC*
                              November 2, 1987
        VIA  HAND  DELIVERY

        Mr.  Matthew Hale
        Chief,  Permits Branch
        Office  of Solid Waste
        Environmental Protection Agency
        Room 2818 J,  401 N Street, S.W.
        Washington, O.C.  20460
       Re:   Environmental Protection Insurance Company—Risk
             Retention Group ("EPIC")

       Dear  Mr.  Hale:

             Following our telephone discussion, I am writing to
       request your  opinion that the Environmental Protection
       Insurance Company ('EPIC*) qualifies under federal regula-
       tions  to  provide Resource Conservation and Recovery Act
       ("RCRA")  insurance.

            As you know, EPIC is in the final stages of raising  the
       necessary capital to begin operations.  In order to assure
       potential investors  that an EPIC policy will allow them to
       satisfy state financial responsibility requirements, EPIC is
       now discussing those requirements with individual state
       environmental regulators.  A concern somet -nes raised in
       these  discussions is whether EPA's regulations under RCRA
       can be satisfied by  a policy issued by a risk retention
       group  such as EPIC.   Of particular relevance are the regula-
       tions  located at 40  C.P.R. SS 264.147(a)(1)(ii), (b)(l)(ii)
       and 265(a)(l)(ii), (b)(l)(ii).

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                                     OSWER POLICY DIRECTIVE 19^77.00-5

     . WEGMA^ & HOFF
Page _2
     EPIC i3 licensed as an insurance carrier  in the state
of Illinois.  Pursuant to the Liability Risk Retention Act
of 1986, it has filed as a risk retention group  in all 50
states.  EPIC intends to comply with all RCRA  regulations
for liability coverage.

     Based on the foregoing, please inform us  whether/ in
EPA's view, EPIC can provide RCRA insurance to hazardous
waste facility owners and operators.  We would appreciate
your transmitting your response to the appropriate EPA
Regional offices, and through them to state representatives.

     Thank you for your prompt attention to this matter.

                                   Sincerely,
                                   Robert P. Schiff

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                                           OSWER DIRECTIVE *  9477.00-6

'j          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/                        WASHINGTON, O.C. 20460
                   23  NOV 87
                                                                     OF
                                                     SOLID WASTE AND EMERGENCY RESPONSE
 SUBJECT:  Guidance for Reviewing Exclusion*  for Pre-Existing  Conditions -in
           RCRA TSDF Insurance Policies                                   >.

 FROM:     Marcia Williams,  Director .  Office  of Solid Waste
 TO:        Regional Waste Management Division Directors,  Regions  I-X
 SUMMARY

      Under 40 CFR Parts 264 and 265,  Subpart H,  owners  and operators  of  RCRA
 treatment, storage and disposal facilities (TSDFs)  may  use insurance  policies
 to meat RCRA requirements for financial assurance for third* party property  and
 bodily injury damages.   Insurance policy language generally begins with  broad
 coverage for damages,  which is modified through the use of inserted exclusions
 to limit the scope of the policy coverage.  Because insurance is  intended to
 cover only possible future events,  policies typically have exclusions limiting
 the insurer's coverage of releases  which occurred prior to the start  of  the
 policy.   Such "pre-existing conditions* exclusions  are  acceptable provided
 that they do not so limit a policy that it no longer provides the coverage
 required by Subpart H.   While the Agency recognizes that it is inappropriate
 to expect insurance to be provided to cover damage  that is certain to occur or
 that has already occurred, it does  expect policies  to cover future conditions
 whose incidence is uncertain.  This guidance describes  acceptable pre-existing
 conditions exclusions based on the Agency's interpretation of the Subtitle  C
 regulations.

      On April 16,  1982 (47 Q 16554),  EPA promulgated regulations to require
 owners and operators of TSDFs to provide financial assurance for third-party
 compensation for bodily injury and property damage caused by accidental
 occurrences arising from facility operations.   Such damage should be "neither
 expected nor intended" by the owner or operator of the facility (40 CFR
 264.141(g) and 265.141(g)).

      While the regulation defines accidental occurrence and other key terms,
 it  also provides that these definitions "are not intended to limit their
 meanings in a way that conflicts with general insurance industry usage." but

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rather are intended to "be consistent with their common meanings within the
insurance industry."  Also, the definitions of bodily injury and property
damage would "not include those liabilities which, consistent with standard
industry practices,  are excluded from coverage" (40 CFR 264.141 (g) and
265.141(g)).

     Specific guidance on what constitutes industry practices was not deemed
necessary in 1982.  Of late, however, ic has become difficult to define
standard industry practice regarding exclusions.  In response to court
decisions that interpreted policy language in a manner that expanded the
coverage intended by insurers, some insurers have tried to clarify the
coverage by modifying their pre-existing conditions exclusions.  A variety of
such modified exclusions have been developed, some of which are inconsistent
wieh ehe accidental occurrence definition in §264.141(g).   This guidance is
intended to assist in determining which exclusions are permissible under
current regulations.
GUIDANCE

                Ex
     The range of pre-existing conditions exclusions can be divided into broad
and narrow exclusions.  Broad exclusions are usually pare of che basic policy
language used by an insurer, while narrow exclusions are added to specific
policies as endorsements to limit Che scope of the basic policy for a
particular insured.  The Agency reviewed a variety of both types of exclusions
and identified acceptable language for boch.  This guidance describes and
provides examples of that language.
     Broad pre-existing conditions exclusions are "generic" exclusions
applicable to all facilities covered by a particular type of policy.  Such
exclusions generally apply to a specific type of occurrence (e.g., a pollution
incident known or expected by tho insured or a release occurring prior to the
policy's effective date) or a particular type of damage (e.g., contamination
of ground water) .

     Permissible broad exclusions may allow the insurer to limit its liability
for current and certain damages present at the start of the policy.  Policies
that make clear that pre-existing conditions (releases likely to result  in
damages) oust be known or reasonably foreseeable to the owner/operator would
be acceptable.

     The Agency has determined that the following provide examples of
acceptable broad pre-existing conditions exclusions:

          "Insurance does not apply where the insured knew or could
          have reasonably foreseen that claims would result."

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          "Insure..ce will pay on behalf of the insured ...  provided
          always  chac che claim is made during che policy period and
          that che insured as of che 'Firsc Coverage Dace1  did noc
          know or mighc noc have reasonably foreseen chac such a claim
          would resulc."

          "The policy will pay on behalf of che insured for damages
          caused by an occurrence . ..," with occurrence defined as "a
          happening resulcing in bodily injury or property damage
          neicher expected nor intended from che scandpoinc of che insured."

          "The insurance does noc apply Co damages arising from any
          environmental impairmenc chac was known or should have been
          known co che insured prior co che original policy incepcion
          dace."

          "This insurance does noc apply co 'bodily injury,' 'property
          damage' or 'environmencal damage' expecced or incended from che
          scandpoinc of che insured."

          "Insurance does noc apply co damages from a release chac che
          insured knew or could reasonably have known had occurred."

The language in these examples is specific enough to provide guidance co
insurers and is consistent with Che intent of che definition of aecidencal
occurrence in ics focus on whechor damage, racher than a release, was expecced
or incended, or on whether che impairment was known or should have been known.
These exclusions  are also consistent with industry practice since they are now
used by some insurers.

     The following sample language is representative of unacceptable broad
exclusions:

          "This insurance does not apply to releases either expecced
          or intended by the insured."

          "This insurance does not apply to groundwater contamination."

The first example, by excluding a release "expecced* by che insured, could
severely limit coverage because any releases from hazardous waste facilities
could be deemed "expected" by the very nature of the materials involved.  The
second example specifically excludes, in a blanket fashion, a particular  cype
of damage and therefore would be inconsistent with Subtitle C regulations.
     Narrow exclusions are coverage exclusions  for  damages  related  to  a
specific problem at a specific  facility.  Such  exclusions may  be written  for  a
particular area of contamination  (e.g., contamination from  waste unit  X)  or
for a particular type of damage at a specific facility (e.g.,  groundvater
contamination at facility A).   Narrow exclusions  are  generally added,  in  an

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accompanying endorsement, co che basic policy's broad exclusions and are
intended co tailor che policy co a specific facility.

     Narrow exclusions should be specific enough co prevent excessive
limicacions of policy coverage.  A narrow exclusion should be described so
chac there appears Co be a basis for the exclusion (i.e., damage muse be
expected from a known, actual release).  To ensure chac such a basis exiscs,
narrow exclusions should refer to a facility assessment1 chac idencifies che
threatening contamination.  An acceptable exclusion should include a
description of the media, type of contamination, and specific location
involved.  Thus, such exclusions should specifically indicate a current and
reasonable belief that damage has occurred or is likely Co occur.

     Given this need for specificity, the Agency has identified che following
sample language as representative of acceptable narrow exclusions:

         "All claims and costs resulting from ...

          a)   groundwater contamination as identified in the
               facility assessment dated XX/XX/87 ...

               [or]

          b)   groundwater contamination by light and gross
               hydrocarbons as identified in the facility assessment
               dated XX/XX/87  .. .

               [or]

          c)   contamination arising from a release at unit A and identified
               in the facility assessment dated XX/XX/87 .. .

          at facility XYZ in Smalltown, Any State, arc not covered
          by this policy."

These types of exclusion* specifically and clearly identify particular known
existing problems constituting current and certain -- i.e., known or expected
-• damages ch*c an insurer should not be required to cover.

     Leu specific language, or  language excluding certain damages from
coverage due to facility conditions causing insurers to suspect,  rather than
know, there has been or will be  a release, are unacceptable.  There should  be
clear evidence that a pre-existing condition in fact exists that  has a
reasonable likelihood of resulting in damage.  The Agency reviewed, and found
     1 A facility assessaenc is similar £p. a CERCLA preliminary  assessment  or
the preliminary review portion of the RCRA facility assessment.   It  is
generally based on a search of the files of the facility and regulating
agencies, and a windshield site review.  The format for  assessments  will  vary,
and we are not suggesting that any specific format is  required.   It  is also
not necessary to review these assessments.

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unacceptable, che following language:

         "All claims and coses resulting from ...

          a)   groundwacer contamination ...

               [or]

          b)   groundvacer contamination by lighc and gross
               hydrocarbons ...

          at facility XYZ in Smalltown, Any State, are not covered
          by this policy."

These exclusions are insufficiently narrow to justify an exclusion of a pre-
existing condition.  They could be interpreted to exclude all groundwater
damage, even that initially occurring during the policy period.  The coverage
provided would thus be too limited to meet the §§264.141(g) and 265.141(g)
definition of accidental occurrence.


     IP 1 tyentation

     Current regulations (40 CFR 264.147 and 265.147) require the owner or
operator of a RCRA TSDF to submit a signed duplicate of the Hazardous Waste
Liability Endorsement or Certificate of Liability Insurance to the appropriate
EPA Regional Administrator(s).  These certificates and endorsements state only
that coverage is provided in a particular amount and do not reveal specific
policy terms or endorsements.   Therefore, to implement this guidance, EPA or
the authorized State should review the pre-existing conditions exclusions of
the policies being used to demonstrate financial assurance.  Such a review
should routinely include the following steps:

          1)   Endorsements relating co pollution coverage should be
               routinely requested.  Any endorsements adding narrow
               exclusions for pre-existing conditions should be
               reviewed to determine if the exclusions are
               acceptable based on the criteria described above.

          2)   If the narrow exclusions are determined to be
               unacceptable, the owner/operator should be notified,
               so that it can seek an acceptable policy (enforcement
               action may also be determined to be appropriate).

          3)   If reason for broader concern arises, the Regional
               Administrator or State may request signed copies of
               liability policies from owners/operators (this
               authority is granted under §§264.147(a)(1)(i) and
               (b)(l)(i) and 265.147(a)(l)(i) and (b)(l)(i».

          4)   Periodically, a review of selected basic policy
               language should be undertaken to determine if its

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               broad pre-existing conditions exclusion is acceptable
               based on the criteria described above.

     Apart from the acceptability of any narrow exclusions, their presence Ln
a policy may signal a need for corrective action at the facility.  In some
cases, the need for corrective action will already have been determined by EPA
because exclusions are often written based on records from the RCRA permitting
and interim status programs.  However, if a review of narrow exclusions
indicates a potential need for corrective action, Che following is applicable:

          5)   Appropriate EPA Regional or State staff should be
               notified if a narrow pre-existing conditions
               exclusion points to a potential need for corrective
               action.2
     For further assistance in implementing this guidance, please contact
Margaret Schneider, Chief, Closure and Financial Responsibility Section,
Office of Solid Waste (202 or FTS-382-4640).
cc:  Regional Counsels
     2 The presence of a narrow exclusion is merely  on*  factor  to  consider  in
determining the need for corrective action decisions.  Consistent  with
established priorities, chase releases  should  be  addressed using any or all
corrective action authorities.

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                                                    9477.1982(01)
May 24, 1982

MEMORANDUM


SUBJECT:  Part B Financial Responsibility Information
          Requirements for Owners or Operators in States with
          only Phase I Authorization

FROM:     John H. Skinner
          Director, State Programs & Resource
          Recovery Division  (WH-563)

TO:       Ira W. Leighton, Chief
          Hazardous Waste Section
          Region I


     This is in reply to your memo of April 13, 1982  (copy
attciched) .  We agree with you that owners or operators in States
with only Phase I authorization are required to submit financial
instruments  (as specified in Subpart H, Part 264) only prior to
the final permit decision.

     The requirement in §122.25 for submission of copies of the
financial instruments with the Part B application is, as you
point out, based on the premise that owners or operators of
exis;ting facilities would have established the instruments in
compliance with Federal interim status standards.  The premise
does: not hold in Phase I States.  For owners or operators in
these States, the effect of §122.25(a) (14)-(16) would be to
impose financial requirements through the permit application
procedures.  This would be inappropriate since there would not be
an eipplicable standard (either in Part 264 or Part 265) in
effeict.  Therefore the Regional Administrator may exercise the
discretion afforded in §122.25 (first paragraph) to require
copies of the financial instruments only prior to permit
issviance.  However, these owners and operators should be required
to specify in their Part B applications the mechanisms they
int€».nd to use to satisfy the financial requirements.

     Although these owners or operators are not required to
esteiblish financial instruments until just prior to permit
issuance, they may find it distinctly advantageous to provide the
instruments by the time the draft permit is made available for
public comment.  Without providing financial assurances, they may
        This has been retyped from the original document.

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                               -2-

encounter significantly greater difficulty in obtaining public
acceptance of the facility.

     In view of the above, we are advising the Regions as
follows:  Owners or operators in States with only Phase I
authorization should be required to specify, as part of their
Part B applications, the mechanisms they intend to use to satisfy
the financial requirements.  The instruments must be submitted to
the Regional Administrator prior to final permit decision.  We
strongly recommend that owners and operators be informed of the
advisability of establishing financial instruments prior to
public notice of the draft permit.

     Thank you for calling this matter to my attention.

Attachment

cc:  Solid/Hazardous Waste Branch Chiefs, Regions I-X
     Permit Branch Chiefs, Regions I-X
     State Programs Branch, OSW
     Joseph Freedman, OGC, A-131
        This has been retyped from the original document.

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                                                                    9477 . 1982(03)
              7  OCT  82
           . *». M. Aie^in
                        (Intrnational  Mnited
        •Unories
        London FC3*' 1*J, England                :

        near Or. Aickini

             ThanK you for your letter  of  July  2fi,  19R2,  regarding
        th* hazardous Waste  Pacllitv Certificate  of  Liability Insurance
        included in the  liability coverage regulation  applicable  to
        hazardous waste  facility owners and operators  (40 CPR ?<>4.151( j ) ) .
        As Acting nirector of  the niviaion responsible for development
        o* the liability coverage regulation, T am  pleased to provide
        you with the following response.

             Your concerns,  as we understand then,  have to do with
        th« Agency's Intent  in using certain terms  in  the Certificate.
^      TO clarify the intended meanings,  we confirm the  following.
•p       In using the word "occurrence*  in  the Certificate, the Agency
e   '..   ^i^ not intend to limit the insurance policies which way  be used
£       to moat the requirements of *fl  CF*» 764.147  or  3f5.l47 to   .
^       occurrence— b»*ed policies.  Nor did the Agency intend to
r       exclude coverage provided Hv elaime-^nde  nolle le«», or to
^       a»n«nd elai'»«-«««»de policies so that they respond on «n occurrence
—       baiiis.  (The Agency's  intent In using the tern •occurrence*
c       is Indicated in  the  preamble to the regulation under "Definitions
£   _  and rjsage" (47 ••* 16551, April  1*, 19B2).)   Purtherwore,
•v       us« of the words "each occurrence* in the Certificate is  not
r!       Intended to alter limits of liability under the policies
«       which respond on a *p«r claim"  or  'per  incident*  basis.

£            Similarly,  use  of the terns 'sudden  accidental occurrence"
£       and! "nonsudden accidental occurrence" in  the Certificate
        do«fi not preclude use of other  terms, such  as  • environmental
I       impairment" or "pollution incident," in the insurance policies
^       '.o describe the  extent of coverage. As indicated in the
T       preamble, the Agency does not intend that the  Certificate
K       language should  modify the contractual  obligations regarding
        extent of coverage under the insurance  policies used to
        satisfy the liability coverage  requirement  (47 wj> l**,41,
        under "Extent of Coverage").
I

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                             -2-
           statements arc intended to clarify the neaninq*
of t*rm* \ised in the Certificate *nd should not he
*« * comment on the acceptability of eoverarje provided  by
any n«rticular insurnnc* policy in meeting the requirements
of 40 TF* 2^4.147 or 26S.147.

     we hope tht* letter resoonrt^ to an<1 alleviates  your
concerns.

                              Sincerely,
                              Aruce R.
                              Acting Director
                              State Progran* and
                              Resource Recovery Division

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                                                    9477.1983(01)
January 5, 1983

Mr. Bradley E. Dillon
Associate General Counsel
US Ecology, Inc.
3200 Melbville Road, Suite 526
P.O. Box 7216
Louisville, Kentucky  40207

Dear Mr. Dillon:

     Your letter of November 5, 1982, raises a question about the
applicability of the Subpart H, Financial Responsibility
requirements to a US Ecology facility.  Your specific concern is
the extent of your responsibility for compliance in view of the
§265.140(c) exemption for States and the Federal government and
the fact that your facility operates on land leased from the
State of Nevada.

     Section 265.140(c) states "States and the Federal government
are exempt from the requirements of this subpart."  The Subpart H
regulations apply to owners and operators; while either party may
fulfill the requirements, the Agency may take action against
either or both of the parties in the event of noncompliance.  The
Agency interprets this exemption to mean that where one party
(the owner or the operator) is an exempted party because it is a
State or Federal governmental unit, the other, private sector
party need not comply with the Subpart H requirements.  However,
a State or Federal agency owner may, of course, require the
private sector operator by contractual agreement to demonstrate
financial responsibility.

     I suggest that you confer with staff of EPA Region IX and
the state of Nevada to determine the extent and applicability of
responsibility for the concerned parties under the Resource
Conservation and Recovery Act regulations.  You should be aware
that the RCRA Subpart G regulations, which stipulate the
        This has been retyped from the original document.

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                               -2-

requirements for performance of closure and post-closure care, do
not contain any such exemption.  The exemption applies only to
the Subpart H regulations, which contain the requirements for
proving financial responsibility for closure and post-closure
care and for liability coverage.

                                        Sincerely,
                                        John H. Skinner
                                        Acting Director
                                        Office of Solid Waste
cc:  Dick Procunier, Region IX
        This has been retyped from the original document.

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            11 WW 1383
                                                                    £
                                                                    T

                                                                    10

                                                                    o
CD
y
o>
 MEMORANDUM
                                                                    n
 SUBJECT:  April 20, 1983* Memorandum on Financial  Requirements      ^
                                                          —         u
 FKOM:     John R. Skinner, Director                                m"
           Office of Solid Woate (WH-562)                            ^
                                                                    r
 TO:       Barry Seraydarian, Director                              S
           Toxics and Haste Hanagenent Division,  Region IX (T-l)     ^
                                                                    tr
                                                                    \
                                                                    h-
      Your memorandum of April 20.  1983, suggested  that a            \
 regulatory interpretation memorandum be written  to clarify the      «
 exemption of States and the Federal governnent from the RCRA
 Subpart H, Financial Requirements  (SS264.140(c)  and 265.140(c)).
 However, the interpretation you suggest does not appear to be
 consistent with the regulations.  Our interpretation of the
 regulations, confined by Office of General Counsel staff* ii
 that set forth in my January 5, 1983, letter sent  to Mr.  Bradley
 E. Dillon at 08 Ecology, a copy 62 Which is attached.  A  copy
 of that letter was also sent to Richard Procunier, the Region
 XX financial contact.

    •  Your suggestion that EPA notify the various State and
 Paderal agencies which may be affected by this exemption  Bay
 bo puroued at a later date.  However, since the  owners and
 operators of hazardous waste facilities are jointly and
 severally liable for the other requirements of the Resource
 Conservation and Recovery Act (RCRA) regulations,  I ast not
 sure that such a narrowly focused  letter would be  appropriate.
 Rather, a letter broadly addressing the potential  obligations
 of the States and the Federal government under the RCRA
 regulations would be sent.

      You can be sure that as we sake decisions on  regulatory
 reporting to EPA Headquarters, this particular section will be
 tt«pt in mind.'  Z am certain that should-*** fi^s  environmental
~promr*iu caused or_ •»£*••-•"»»* T tMs exemption,  we will make*
 cv«ty i.»rr* to rfcw.i. tne regulations in a responsive manner.


 Attachment

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                                                                          9477.1983(02]
                   RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                    FEBRUARY  83
3.  Question:
    Answer:
Can the owner/operator  of  a  facility cancel or terminate his
policy without giving the  insurance conpany the 60 or 30 days
the insurance company needs  in order to give EPA 60 to 30 days
notice of cancellation?

The insurance company is bound by the certificate or endorsement
to give proper notice.  There is no requirement for the facility
to give the insurance conpany advance notice.  The insurance
conpany could protect itself against this in its contract with
the facility.
                  Source:
                  Research:
           Karen Gale
           Irene Homer

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                                                              9477.1983(03
                                                                   x »
Mr.  Allan  B.  Mitchell                                                ^
Mitchell 6 Schultz,  Inc.                                             £
P.O.  Box 190                                                         a
310  E.  Lee                                                          ^
Sapulpfl, Oklahoma   74066                                             -
                                                                     NJ
Dear ir. *itchell:                                                   ^
                                                                     00
      Thank you  for  your letter  of  October  23  in which  you            >
question the  net working  capital requirement  of che  financial        f
test,  for assurance  of  closure and  post-closure car*  at              ^j
Hssarrfous  waste managernent  facilities.  The financial  test           -»
i? a  mean« by which  a  financially  sound firm  may  demonstrate         ^
its  ability to  cover the  costs  of  closure  and post-closure.          ^
                                                                     X
      The financial  test differs from  other acceptable  mechanisms     f
for  assurance of financial  responsibility.  In the event of          ~
ahanrtonwent or  bankruptcy,  there is no special fund  of money
that  ^A can  use to  properly close and maintain a facility.
Therefore,  it is imperative that the  Agency be assured that
a firm  passing  the  test is  viable  and that sufficient
funds would remain available even  in  the event of a  change
in the  financial position of the firm.

      In developing the financial test* the Agency extensively
analyzed over 300 possible  tests*  applying then to known
bankruptcies  to determine which test  would provide the needed
safoty margin while  allowing as many  viable firms as possible
to pass the test.  The result was  the two  alternative  sets
of criteria found in 40 CPR Parts  264 and  265.

     The first alternative, the "ratios" test, requires a
net working capital  of at least six tines  the sum of the
closure and post-closure  cost estimates.   To  assure  that the
eloiture and post-closure  costs  themselves  would not  cause
insolvency, the Agency originally  determined  that a  firm
should have net working capital of at least twice the  cost
estimates.   However, in studying bankruptcies, the Agency
discovered  that many firms  experienced a rapid deterioration

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of financial condition in the two to three years prior to
business failure.  In such cases, net working capital fell
by an average of 66% in two years.  Thu£> a multiple of six
(a factor of two - to ensure ability to pay - times three -
to protect against rapid deterioration) was found necessary.

     The second alternative, the "bond rating" test, is not
directly comparable to the "ratios" test.  While both options
provide EPA with the needed assurance, they do it in different
ways.  While the "ratios" are designed as predictors of bank-
ruptcy, the "bond rating" assures viability and credit-worthiness.
In fact, both Moody's and Standard and Poor's look at many factors,
including ratios, in assigning a rating.  For example, they
consider a firm's size to be very important.  Most firms assigned
investment grade bond ratings have net worth in the S100 million
to S200 million range and above.  Firms which pass the "bond
rating" test are able to raise money easily, and they have a
statistically lower business failure rate than those that pass
the "ratios" test.                                  /-

     It is important to note that over 90% of those firms wishing
to use the financial test are able .to pass it.  I can certainly
understand the frustration of those unable to use the test, but
believe that our requirements are appropriate to meet our over-
riding responsibility to protect human healtja and the environment.

                               Sincerely yours,
                               William D. Ruckelshaus

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                                                                 9477.1983(04)
              RCRA/SUPERFUND  HOTLINE  SUMMARIES

                          SEPTEMBER  83
If a State does not have a required financial  mechanism but has an
approved  financial mechanism, can a facility owner/operator use the
approved  mechanism under 40CFR 264.149?

    Section 264.149 of the regulations  allows  the substitution of a
    financial mechanism which the State requires for one of the EPA
    approved mechanisms.  This substitution requires the approval
    of the Regional Administrator.  A State approved (but not required)
    mechanism can also be used In lieu  of the  Federal mechanism If
    the facility owner/operator receives approval from the Regional
    Administrator.

       Source:  Scott B1ehl

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                                                    9477.1984(01)
January 12, 1984

MEMORANDUM


SUBJECT:  Closure Cost Estimates Based on Third Party Costs

FROM:     John H. Skinner, Director
          Office of Solid Waste (WH-563)

TO:       James H. Scarbrough, Chief
          Residuals Management Branch
          Region IV

     This is in response to your memorandum of November 22, 1983,
in which you raise the issue of whether a closure plan for a
recycling facility can specify continuation of recycling in order
to reduce waste inventory during closure.  You raised this issue
in the context of a statement made in the September 19, 1983
RCRA/Superfund Hotline report.  The Hotline report stated that a
closure cost estimate cannot be reduced to reflect planned
recycling of waste at a facility or the planned sale of equipment
or property after closure begins.   The rationale given by the
Hotline is that the cost estimate must reflect closure at the
most expensive point in the facility's operating life, rather
than some point after the facility's inventory is reduced by
continued recycling of waste on site, or after sale of capital.

     While the Hotline memo is correct, your memo raises a
separate issue, which the Hotline report did not address.  That
issue is whether the closure cost estimate may reflect the cost
of closure activities carried out by the owner/operator (who may
use his own personnel and equipment if he desires), or whether
the estimate must reflect the costs of closure activities carried
out by a third party, such as the government or a private
contractor.

     You referenced several statements in the regulations and EPA
guidance documents which you interpret to mean that the first
case is correct.  In the context of recycling facilities, you
have interpreted the regulations and guidance to mean that 1)
continued recycling at a recycling facility is a form of
"treatment" and a legitimate closure activity, and 2) the closure
cost estimate for a recycling facility may reflect the
owner/operator's own costs of carrying out his closure plan.
        This has Jbeen retyped from the original document.

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                               -2-

     I concur with these interpretations.  With regard to your
last point, please make note of an important requirement which
lessens the likelihood of a large, abandoned stockpile of waste
in the event of a forced closure.  Under §264.113(a), and
§265.113(a), the owner/operator has 90 days from the day closure
activities begin in which to "treat, remove from the site, or
dispose of on-site, all hazardous wastes in accordance with his
approved closure plan".  Therefore, acceptable cost estimates for
recycling facilities could reflect labor and materials for up to
90 days of recycling plus the cost to dispose of the amount of
waste which could not reasonably by recycled with existing
throughput capacity during 90 days.  This,  in effect, ensures
that recyclers do not stockpile more hazardous waste than they
have the ability to recycle in 90 days, unless they have made
provisions in their closure plans and cost estimates for
disposing of the excess hazardous wastes, either on-site or off-
site, by end of the 90-day period.

cc:  Bruce Weddle
     Eileen Claussen
     Carolyn Barley
     Hazardous Waste Branch Chiefs, Regions I-III,  V-X
        This has been retyped from the original document.

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                                             9477.1984(01)
                                             Attachment
DATE:     November 22, 1983

SUBJECT:  Closure Plans and Cost Estimates-Treatment of Waste
          Inventory As Part of Closure Activities

FROM:     Chief, Residuals Management Branch
          Region IV

TO:       John Skinner, Director
          Office of Solid Waste (WH-563)
          The September 20, 1983 memo from Carolyn Barley
          transmitting Superfund hotline monthly status report
          for August contained a response with which we do not
          agree.  On page six the following statement is made
          "The Agency has interpreted these two statements to not
          allow a Closure Plan to include recycling of waste or
          sale of equipment or property in order to reduce the
          closure cost estimate."  Region IV does not totally
          agree with this response.   We agree that the money
          gained from the sale of recycled hazardous waste
          equipment or property can not be included in the
          closure cost estimate as a credit.  However we feel
          that the regulations and guidance are clear that a
          recycling facility can continue to treat its waste
          inventory as a part of its closure operations.

          The following citations from RCRA Regulations and
          Guidance Documents support this position:
          DOCUMENT CITED
          40 CFR 264.142
          Preamble to May 1980
          Reg.
SUPPORTING QUOTATION

Cost estimates for closure are
to be based on the closure
plan
"Closure is the period after
wastes are no longer accepted,
during which the owners or
operators complete treatment.
storage and disposal
operations, apply final cover
to all cap landfills, and
dispose of or decontaminate
equipment"
        This has jbeen retyped from the original document.

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                        -2-
   40 CFR  264.112(a)(4)
  40 CFR 264.113(3)
  EPA Draft Guidance
  Closure and Post
  Closure:  Interim
  Status Standards 40
  CFR 265,

  P. 2-8
  P. 2-9
  P. 2-11
  P. 4-2
"For example, in the case of a
landfill, estimates of the
time required to treat and
dispose of all waste
inventory.

"Within ninety days after
receiving the final volume of
hazardous wastes, the owner or
operator must treat, remove
from the site, or dispose of
on-site, all hazardous wastes
in accordance with the
approved closure plan.

"The Plan (Closure) should
also include a description of
the procedures for treating or
removing these wastes ..."
"It does ensure that an owner
or operator has prepared for
treating, disposing or sending
hazardous waste off-site in a
timely fashion.

"In most cases, it is likely
that wastes awaiting disposal
will require varying degrees
of processing and treatment.
At an incineration facility,
for example, all wastes may be
incinerated on-site and the
residues hauled off-site."

"The schedule of closure
activities should include:
(e.g. dates for completing
treatment and disposal of all
wastes on-site,)

"An example would be the costs
of treating or disposing of
inventory on-site, which will
normally be a simple
continuation of the normal
operating practices of the
business.
This has been retyped from the original document.

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                               -3-

          P. 5-5                   "In the vast majority of cases
                                   at disposal facilities, the
                                   disposing or treating of
                                   inventory will take place
                                   on-site,"

From these documents we think the following conclusions can be
clearly drawn.  These conclusions reflect our Region's approach
to Closure Plans and cost estimates for Hazardous Waste recycling
facilities.

1.   The Closure Cost Estimate is based on the Closure Plan.

2.   The Closure Plan is based on a planned Closure that is
     carried out by the owner (who may use his own personnel and
     equipment if he desires).  There is no regulatory basis for
     requiring the closure plan and cost estimate to be based on
     a third-party or contractor handling the closure activities.

3.   The Regs and Guidance are clear that a facility that does
     treatment of Hazardous Waste may continue to provide
     treatment as a part of its closure activities as a means of
     reducing its inventory on hand at the time closure begins.
     For a facility that recycles spent solvents through
     distillation this would mean that the facility could distill
     spent solvents on hand when closure begins as a means of
     reducing the costs for final disposal.

4.   Once Closure begins the Closure Cost Estimate must reflect
     all operating costs, disposal costs, and clean-up costs
     incurred during the closure period including any costs
     associated with continued treatment during closure, such as
     all costs associated with the operation of facility.  The
     guidance manual indicates that the company should submit the
     previous years financial budget and put up the percentage of
     the year it will take for the treatment, ultimate disposal
     and decontamination in their closure fund.

There are many waste recycling facilities throughout the country
that are subject to the RCRA permitting requirements.  Because of
the significant impact which the financial assurance requirements
have on these facilities, it is important that EPA be consistent
nationwide in our application of the RCRA regulations for Closure
        This has been retyped from the original document.

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                               -4-

Plans and Cost Estimates.  We have issued and are about to issue
several permits to recycling facilities using the above stated
guidance.  If you disagree with our approach please call Douglas
C. McCurry of my staff at FTS 257-3433 before December 15, 1983.
James H. Scarbrough
cc:  Region IV State Directors
     Hazardous Waste Branch Chiefs, Regions I-III,V-X
        This has been retyped from the original document.

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                                                             9477.1964(02)
MEMORANDUM                                                            \
                                                                      c
           -                                                          V
                                                                      c.
SUBJECT:   U.S. Ecology's Nevada Facility and Financial               t
           Responsibility                                             •
                                                                      v
FROM:      John H. Skinner, Director
           Orfice of Solid Waste (WH-562)                             r.

TO:        Harry Seraydarian, Director                                '
           Toxics and Waste Management Division                       "f
             Region IX (T-l)                                          <
                                                                      f
                                                                      f
                                                                      c
     Your memorandum of April 5 requested connents on the             "
Notice of Deficiency you sent U.S. Ecology.                           :

     While I sympathize with your desire to ensure that all           c
owners and operators demonstrate financial responsibility, EPA
is riot in a position to require such compliance in this instance.      :
Section 140(c) of the regulations clearly exempts the States           [
and the Federal government from the Subpart H regulations.             >
Therefore, CPA does not have authority to enforce compliance
with the financial requireraents since the U.S. Ecology facility
is located on land owned by the State of Nevada.  Only the
State of Nevada may require U.S. Ecology to demonstrate
financial responsibility by contractual arrangement.

     This point is covered in both the January 5, 1983 letter
to U.S. Ecology and the Hay 11, 1983 memorandum to you (copy
attached).  I want to reassure you that my staff had extensive
conversations with your staff before the January letter was
issued.  I hope this clears up the matter for you.


Attachment

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                                                                        9477.1984(03)



        Closure/Post-Closure  and  Cost Estimate  Updates
RCRA
What is the latest inflation  factor  for updating  the  closure/, post-closure
cost estimate?

    The inflation factor is determined by dividing  the  latest annual
    Implicit Price Deflator for  Gross National  Product  by  the previous
    annual  deflator.  The deflators  are published by  the U.S. Department
    of Commerce in Us Survey of Current Business.  Typically,  the
    cost estimate update is done annually, within 30  days  after tne
    anniversary date of the first  cost estimate which was  Hay 19, 1981.
    Therefore, cost estimates are  only required to  be updated by the
    regulations (264.142(b).  265.142(b), 264.U4(b),  and 265.144(5))

    between May 19  and June 19 of  each year using the latest deflators
    which are  published every March.  However,  if a change in the
    closure/pcst-closure plan occurs at any ct-ier time  and results in
    increased  costs,  the closure/  pcst-clcsure  cost estimates .nust be
    rev.sed at that time and  updated annually thereafter (265.142(0,
    264.142(c),  263.144(0).

    Most companies  requesting the  inflation factor were updating their
    financial  test  letters and wanted to update their cost estimate to
    coincide with the close of their fiscal year ending December 31,
    1983.   As  the regulations are  written, the  financial test annual
    update  for fiscal year ending  December 31,  1983, would cover the
    May 1983 cost estimate.   Callers are reminded that  if their facilities
    are in  interim  authorized States, the state — net the Federal —
    financial  requirements apply per 265.1(0(4).

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                                                             9477.1984(04)

                                   2 0
                                                                      S3
                                                                      >-x
                                                                      '>
 Charles  Vi.  Shipley                                                   o>
 1  Vjilliams  Center                                                    2
 Suite  1770                                                            ^
 Tulsa, OK   74172                                                      a.
                                                                      CO
 Dear Mr.  Shipley:                                                     w
                                                                      N5
     This letter  is  in  response  to  your  question  to ray  staff          £
 regarding insurance  coverage  limits required  under the  KCRA           ^
 Subpart  K regulations.                                                ^
                                                                      h-
     As  you know,  40 CFK  2t>4.147  and 265.147  require all owners       ^
 or operators of hazardous waste management  facilities co demon-       a
 strate financial  responsibility  ror bodily  injury and property        **
 carnage to third parties caused by sudden accidental occurrences
 in the amount of  $1  million per  occurrence  and  $2 million annual
 ap4',rci;ate.   In addition,  the  owner  or operator  of a surface
 impoundment,  landfill,  or land treatment facility must  demonstrate
 financial responsibility  for  bodily injury  and  property damage
 to third parties  caused by nonsudden accidental occurrences in
 the auount  of $3 million  per  occurrence  and $6  million  annual
 agftrepate.   An owner or operator  has several  options to satisfy
 this liability coverage requirement.  .

     An owner or operator who chooses to meet both the  sudden
 and nonsudden requirement solely  through the  purchase of insurance
may obtain  a single  insurance policy to  cover both sudden and
nonsudden accidental occurrences.   This  policy, however, must
provide coverage for at least the sup of the  sudden and nonsudden
niniwun limits.   In  other words,  such a  policy  must provide
coverage for  at least $4  million  per occurrence with an annual
aggregate of  at least $8  million.   The liability  Units
of $4/$8 million are consistent with our regulations and provide
adequate coverage.   Of course, an owner  or  operator may satisfy
the liability  coverage requirement  by obtaining two separate
insurance policies,  one to cover  sudden  accicental occurrences
(with limits of at. least  $1 and $2  million) and one to  cover
nonsudden accidental occurrences  (with linits of  at least $3
and 56 million).

-------
     We are aware chat this option is not specifically addressed
in H 264.147 or 265.147 of the regulations.  The required
wordinp, for the endorsement and the certificate of insurance
(SS 264.151(i)(D and 264.151 (J) (1)), however, states that:

     The coverage applies at [list EPA Identification
     Dumber, name, and address for each facility] for
     [insert "sudden accidental occurrences," "nonsudden
     accidental occurrences,"  or "sudden and nonsudden
     accidental occurrences"]  (emphasis added).

     If you have further questions, please feel to contact me at
(202) 382-4761.

                               Sincerely,
                               George A. Garland
                               Chief, Financial. Responsibility
                                 and Assessment branch

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                                                          9477.1984(05)

                          JUN   6W

Baviev of Financial A«suranc« Instruments                         r
                                                                  T
George Garland, Chief                                             £
Financial Responsibility and Assessment Branch (MH-562)           ^
                                                                  ^ft
Hasardoui Mast* Branch Chiefs
  Regions I-X                                                     en
                                                                  •
                                                                  »
     The purpose of this memorandum it to clarify our policy      v.
regarding th« review of financial assurance instruments,          a
Lee Daneker and Tony Hontrono Mnt a memorandum to the BWDKS      \
Project Officers on December 20, 1913 to clarify the Instrvic-     «
tions for the Compliance and Enforcement Log and the Facility     K>
Status Sheet.  Aa a reault o£ that Memorandum, I am concerned     £
that review* of financial inntrumente are being deferred          ^
until eloaure/poat-cloeure plans and coat estimate* are           \
determined to be adequate and in compliance with federal or       \
state regulations.                                                •

     It is our policy to reriev all financial assurance in-
stnments regardless of decisions concerning the adequacy or
inadequacy of closure/post-closure plans and/or cost estimates.
w« expect you to examine the financial instruments (wording,
issuer qualifications, etc*) for coapliance with Federal
or State regulations.  Me consider this distinct reriew
essential and, therefore, stress that it be conducted even
in the absence of a reviewed plan and cost estimate.

     The facility status sheets should reflect this policy.
Therefore, item number eleven—Closure Assurance Instruments—
and item number fourteen—Post-Closure Assurance Instruments-
should always be completed even vh«n the plans and/or cost
estimates have been determined inadequate,  Nhen the plans
and/or cost estimates are revised and reviewed* the adequacy
of the amount of the financial instrument should be reviewed
concurrently.

     X have made minor revisions to the facility status sheet
instructions to reflect this distinction.  The revised
instructions are attached to this memorandum.  Please  inform
your States of our policy and explain the change in the
•itatus sheet*  If you have any questions about adequacy
die terminations on financial assurance instruments, please
contact Carole Ansheles on 382-4671.

Attachment

cct Carols Ansheles
    Susan Hughes
    Lee Daneker
    Tony Hontrone

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                                                              9477.1984(06)
                          2 6 N u v 1984
                                                                      N3
                                                                      >—<•
                                                                      >
MEMORANDUM

SUBJiiCT:  Availability of Environoental  Impairment Liability
          (EIL)  Insurance

FROM:     John H. Skinner, Director
          Office of Solid Waste  (WH-562)
                         • i -

TO:       Regional Division Directors
          Regions I-X*
co
c.
US

C/3

N5
00
     There has been some question raised  in  the Regions about
the availability of Environmental Impairment Liability  (EIL)
insurance.  EIL insurance  is necessary for owners and operacors
of surface impoundments, landfills, and land treatment  facilities
to meet the liability coverage requirement for nonsudden  accidental
occurrences under 5$ 264.147(b) and 265.147(b), if they are not
using the financial test.  Owners and operacors with annual sales
or revenues of less than S3 million will  become subject to this
requirement in January 1985*

     It is my understanding that this type of insurance is avail-
able, although there is a waiting list.   Attached is a  list of
companies which offer EIL  insurance and the  limits of coverage
they provide.  The Agency has been advised that at this time
only two companies on the  list, Shand Morahan and American
International Group, are taking new customers.  The rest  of the
companies are offering policies only in limited circumstances.

Attachment

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           UNITED STATES ENVIRONMENTAL PROTECTION AG          94??  1984(07)
                       WASHINGTON, D.C. 20460



                            W


                                                        OP'ICE Of
                                               SOLID WASTE AND EME«GENCV RESPONSE
MEMORANDUM
SUBJECT:  Determination of a Facility's Operatin
FROM:     George A. Garland, Chief
          Financial Responsibility and Ass'ess'tnent

TO:       William H. Taylor, Chief
          Enforcement Section, Region 6


     This memo addresses the questions raised by the State of
Oklahoma in their letter to Region 6 dated September 6, 1984.
Most of these questions concern how one determines the operating
life of a facility for the purpose of calculating the trust fund
pay-in-period.  As requested, I also address the separate issue
of how to treat recycling in the closure cost estimate.


1 .    How does one calculate a facility's operating life for
     determine the pay-in-period for the trust fund?
                                                 V
     For permitted facilities, "payments into the trust fund
must be made annually by the owner or operator over the term of
the initial RCRA permit or the remaining operating life of the
facility as estimated in the closure plan, whichever period is
shorter" (S5264.143(a)(3) and .145(a)(3)).  For  interim status
facilities, "payments into the trust fund must be made annually
by the owner or operator over the 20 years beginning with the
effective date of these regulations or over the  remaining operat-
ing life of the facility as estimated in the closure plan, which-
ever period is shorter" ($5265.143(a)(3) and ,145(a)(3)).

     For purposes of this requirement, the operating life of a
facility must be presumed to end in that year in which the owner
or operator currently expects to close his facility.  His expected
year of closure should be identified in his closure plan.

     EPA should be able to determine, after reviewing the facil-
ity's operating record, whether the owner or operator's estimate
of the year he expects to close his facility is  reasonable.   If
EPA believes that the facility's operating life  is less than
that stated, we may require the owner or operator to change the
closure plan.

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                              - 2 -


2.    Should a facility's operating life be determined based on
      existing, permitted unbuilt, or unpermitted unbuilt capa'cicv?

      The capacity of both permitted and interim status facilities
to store or dispose of wastes for the purpose of determining the
facility's  operating life should be based on "the maximum extent
of operation which will be unclosed during the life of the facil-
ity"  as required in the closure plan under 55 264.112(a)(1) and
265.112(a)(1).

      Thus,  for permitted facilities, operating life should be
based on permitted capacity which may include unbuilt capacity.
Operating life will not be based on unpennitted capacity.  If
the owner or operator later decides to increase capacity at a
permitted facility by building additional units or expanding
existing units, he must modify his permit.

      For interim status facilities, operating life should be
based on the capacity described in Part A of the facility's
permit application.  If the owner or operator later decides to
increase capacity beyond what is stated in the Part A, the owner
or operator must modify his Part A and his closure plan.


3.   Are payments to the trust fund based on each individual
     unit or the facility as a whole?

      Sections 264.143(a)(3), 264.145(a)(3), 265.143(a)(3), and
265.145(a)(3) state that the payments into the trust fund must be
made over the remaining operating life of the facility (if less
than  the permit life or 20 years).  We cannot interpret  "facility"
as it is used here to mean "unit".  Thus, the pay-in-period to
the trust fund must be calculated for the facility as a  whole.
If the facility has more than one unit, the end of the facility's
operating life for purposes of calculating the trust fund pay-in
period will be that year when the owner or operator expects to
close the last unit (assuming this period is less than the permit
life or 20 years).


4.   How does one determine the operating life of a tank or
     "surface impoundment which can be refilled?  How do  treatment
     processes affect operating life?

     During the operating life, the level of waste  in a  tank or
an impoundment may vary.  Filling and emptying is part of a tank
or impoundment's normal operating life.  Wastes may be treated,
sludges may settle out, liquids may evaporate or be drained off,
sludges may be dredged out and disposed of.  While  the level of
waste in a  tank or impoundment may fluctuate, the facility is
still operating until the year the owner or operator has indicated
he expects  to close the facility.

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                              - 3 -


     Prior.to the time the facility receives its final volume of
waste, the owner or operator should be able to determine the
year he expects to close based on the treatment or other storage
and disposal processes he employs.  If he plans to operate longer
than he had originally intended, he must modify his closure plan.


5.   Should waste stored in tanks prior to recycling be considered
     a salable asset or liability for disposal?

     Section 265.142(a) states that the cost estimate "must equal
the cost of closure at the point in the facility's operating life
when Che extent and manner of its operation would make closure
the most expensive".  Since EPA has no guarentee that there will
be a market for wastes stored prior to recycling and that these
wastes will be in a salable condition when recycled, such wastes
should be considered a liability.

     As discussed in the January 12, 1984 memo from John Skinner
to James Scarbrough on closure cost estimates based on third
party costs, the owner or operator of a recycling facility may
continue to recycle wastes during the closure period as a legiti-
mate closure activity.  While the owner or operator need not
include the cost of disposing of that inventory of waste that he
anticipates will be eliminated because of recycling during
closure, his cost estimate must reflect the labor and materials
necessary for recycling that waste.  It is important to point
out: that recycling may only continue for 90 days after the final
receipt of waste unless an extension of the closure period is
granted by the Regional Administrator.  The cost estimate must
also include a reasonable estimate of the cost to dispose of that
amount of waste which cannot be recycled with existing treatment
capacity in the 90 days of closure.


     If you have further question, please contact Alyce Ujihara
of my staff at 382-4784.

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                                               9477.1984(08)
         RCRA/SUPERFUND HOTLINE  MONTHLY  SUMMARY

                      NOVEMBER 84
The Agency requires owners or operators of hazardous waste
treatment, storage, or disposal facilities to have liability
coverage for accidental occurrences arising from the
operation of their facilities.  These requirements are
specified in 40 CFR §264.147 and §265.147 for permitted and
interim status facilities, respectively.  The required
coverage for sudden accidental occurrences is at least $1
million per occurrence with an annual aggregate of at least
$2 million, exclusive of legal defense costs.  The required
coverage for nonsudden accidental occurrences applies to
facilities with surface impoundments, landfills, or land
treatment units.  These facilities must also have sudden
accidental insurance coverage.  Nonsudden coverage is at
least $3 million per occurrence with an annual aggregate of
at least $6 million, exclusive of legal defense costs.  Must
an owner or operator of several facilities have liability
coverage in the amounts just stated for each facility?

     No; one policy will cover all facilities.  Liability
     insurance is required on a per firm basis rather than a
     per facility basis.  The requirement for the use of an
     annual aggregate liability coverage encompasses the
     risk of multiple occurrences among facilities belonging
     to the same owner or operator.  For example, an owner
     of six container storage facilities would only need
     sudden accidental occurrence coverage of $1 million per
     occurrence with an annual aggregate of $2 million.
     This issue is addressed in the April 16, 1982 Federal
     Register (47 FR 16546).

     Source:    Carole Ansheles  (202) 382-4761
     Research:   Hilary Sommer
   This has been retyped from the original document.

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                                                               9477.1985(01)
          RCRA/SUPERFUND  HOTLINE  MONTHLY SUMMARY

                           DECEMBER  84
The financial requirement  regulations  (40 CFR $264 and $265, Subpart H)
require that owners and  operators of all hazardous waste management
facilities establish financial  assurance to cover the cost of closing
their respective facilities.  The regulations provide six methods for
establishing financial assurance.  One method is a financial test and
corporate guarantee for  closure (S264.143(f)(10) and S265.143(e)(10)).
Using this method, a parent corporation (guarantor) can provide the
financial assurance for  an owner/operator of a subsidiary company.  If  a
facility becomes a separate company, completely autonomous fron the parent
company, may the ex-parent company provide financial assurance for the
owner/operator of the newly independent company?

    No; the ex-parent corpany may not provide financial assurance for the
    newly independent company.   Sections 264.143(f)(10) and 265.143{e)(10)
    state that "The guarantor must be the parent corporation of the owner
    or operator."  Therefore, the newly independent company oust establish
    its own financial assurance since its ex-parent company can no longer
    function as its guarantor.   This financial assurance must be in place
    upon independence.

    Source:    Joe Freedman   (202) 382-7700
    Research:  Gordon Davidson

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                                                         9477.1986(01)
Senator Charles E. Crassley
United States Senate
Washington, O.C.  20510

Dear Senator Crassley:

     Thank you tor forwarding Mr. Gary Jaehnel's letter of
November 26, 1985, concerning the Riowa Corporation's transfer of
it» hazardous waste storage operations to a new site.  Outlined
below is our understanding of how regulations under the Resource
Conservation and Recovery Act (RCRA) apply to Mr. Jaehnel's .
facility.

     RCRA requires that hazardous waste storage facilities obtain
permits to ensure that the wastes are managed in an environmentally
protective manner.  RCRA regulations also allow facilities that
were in existence on May 19, 1980 to continue operation in 'interim
status* until decisions are made as to whether or not to permit
the facility (Kiowa is an interim status facility).  Regulations
prohibit, however, changes to an existing facility during interim
status which are so extensive as to amount to reconstruction of
the facility (see 40 CPR 270.72(e)].

     The proposed transfer of the Riowa storage facility would,
in effect, amount to reconstruction of the tacility.  As such,
it must be treated as a new facility.  In order to begin construc-
tion of a new facility, it must first be issued a permit, as
provided by 40 CPR 270.10(f).  In addition, closure of the exist-
ing Kiowa facility must be done in accordance with interim status
closure standards (contained in Subpart G of 40 CPR Part 265).

     We contacted Mr. Gene Evans, the EPA Renion VII staff member
assigned to this project, who provided additional background
information.  Mr. Evans reviewed the revised closure plan submitted
by the Kiowa Corporation, and advised Mr. Jaehnel that the revised
clonure plan was not acceptable as submitted.  Mr. Evans offered
to amend the submitted plan as provided for in the regulations.
Mr. Jaehnel preferred to amend the plan himself and requested a
letter detailing the deficiencies in the plan.  This letter was
prepared and sent on November 20, 1985.

     We wish to apologize for any lack of responsiveness Mr. Jaehnel
may have encountered.  As an "interim" authorized State, the Iowa

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                                -2-


Department of t.'ater, Air, and Uaste Mananer»ent had heen  irplenent-
i ng certain portions of the RCRA prooran, includinn closure
activities/ in lieu of the Federal hazardous waste ranaoenent
program.  The Iowa State legislature voted to end fundino of the
State's hazardous panaqenent program, effective July 1,  1985.
On that date, the State's hazardous waste manaoenent prooran
ceased operating and EPA Region VII assumed responsibility for
the entire hazardous waste management program, includinn closure       \
activities.  This transfer of responsibility may explain some of       *
the problems Mr.  Jaehnel experienced.  Again, we apologize for        C
any lack of responsiveness he may have encountered and regret any      r
inconvenience.                                                         5
                                                                       f
     If you or Mr. Jaehnel have any additional Questions or reouire    *
further information, please call Mr. Gene Evans at (913) 236-2888.     £
Thank you for your interest in this matter.                            o
                                                                       0)
                                Sincerely/
                                                                       KJ
                                J. Winston Porter                      K>
                                Assistant Administrator                V
                                                                       09
ce>  Region VIZ
     Congressional Liaison/Oeremer
                                                                       ISJ

                                                                       K>
                                                                       *»
                                                                       X
                                                                       00

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                                                     9477.1986(02}
  'i         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

  /                     WASHINGTON. DC.  20460
                                   '386
                                               SOLID *ASTE AND EMERGENCY «ESPCNSE
Honorable Charles E. Grassley
United States Senate
Washington, D.C.  20510

Dear Senator Grassley:

     Thank you for your letter of December  11,  1985,  forwarding
t:he November 15, 1985 comments from Mr.  Russell C.  Smith of
Salsbury Laboratories.  Mr. Smith suggested that  the  Agency
consider a corporate guarantee from a parent corporation or an
indemnity agreement or letter of credit  as  alternative means  for
meeting the financial responsibility requirements for liability
coverage under the Resource Conservation and Recovery Act.

     In the past, the Agency has not allowed a parent company to
use the corporate guarantee to meet the  requirements  for liability
coverage; we have been concerned that this  use of the corporate
guarantee might be declared an invalid practice of  insurance
under State insurance law.  The Agency is now reconsidering its
position, however.  Over the next few months, we  expect to
promulgate regulations allowing the corporate guarantee where
(the hazardous waste facility has obtained a letter  from the
State Attorney General or from the State Insurance  Commissioner,
indicating that this is a valid practice under State  law.  In
addition, the Agency intends to propose  the use of  indemnity
agreements and letters of credit at a later time.

     Please let me know if I can provide any further  assistance.

                                   Sincerely yours,
                                   J. Winston Porter
                                   Assistant Administrator

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                                                                   9477.1986(03)
                  RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                  FEBRUARY  86
6.  Liability Requirements

    According to $265.147(a)(l)(ii),  insurance policies held  by owners/operators
    of hazardous waste  facilities must be issued by an insurer which,  at a r>-,,numjn,
    is licensed to transact tne business of insurance,  or eligible  to  provide
    insurance as an excess or surplus lines insurer in one or more  States,   oxjer
    what circumstances, if any, would an off-snore (foreign)  entity be able  to
    provide insurance for a domestic  treatment, storage,  or disposal facility
    (TSDF)?

          Under Federal RCRA requirements,  facilities must be insured  by a company
          that is licensed in one or  more States.   The company need not be licensed
          in the State  in which the facility is located,  unless stricter state
          regulations require in-State licensing.   The facility owner/operator
          should verify the qualifications of a company oy first contacting  the
          insurer about its licenses  and then confirming with insurance regulatory
          authorities of the appropriate State or States.

          Regarding the off-shore entity, any captive or alien insurers must meet
          the above requirements in order to provide insurance satisfying the
          Subpart H regulations.  See SW-961, "Liability Coverage:  Requirements
          for Owners and Operators of Hazardous Waste Treaonent, Storage ana Disposal
          Facilities: A Guidance manual," datec November 1982 (pages II-3 and O3).

          Source:    Carole Ansheles  (202)  382-4761

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               UT  'D4TATES ENVIRONMENTAL PROTEC  >« Al         9477.1986(04)
                          MAR  20
Honorable P. Janes Sensenbrenner* Jr«
House of Representatives
Washington, D.C. 20515

Dear Mr. Sensenbrcnner:

     Thank you for your letter of February 18, 1986 on the
subject of liability insurance.

     You are correct in stating that some industries have
chosen to comply with EPA's liability requirement by establishing
captive insurance companies.  The National Solid Haste Management
Association and the Synthetic Organic Chemical Manufacturers
Association represent two such industries.  However, we believe
these additional suppliers of insurance would add to comnetition
in the insurance marketplace, rather than create a monopoly.

     Second, the Agency has recently contacted all insurance
companies known to have been involved in the environmental
impairment liability market.  I have enclosed a list of all
companies who were willing to be named as potential suppliers of
environmental impairment liability coverage.  Of course, it is
possible that not all companies named would be able to supply
all coveraqe needed, but may be able to supply partial coveraae.
This list was current as of January 24, 1986.

     Finally, the Anency requires coverage for bodily injury or
property damaqe to third parties for hazardous waste facilities
in 40 CFR 5264.147 and $265.147.  The Superfund reauthorization
bills would not waive these provisions.  You nay have in mind
HR. 3917, passed December 16, 1985, which would provide limited
relief from the required financial responsibility certification
in Section 3005(e)(2) of the Resource Conservation and Recovery
Act (RCRA).  However, the Agency does intend to amend the

-------
financial responsibility regulation in the next few nontha to
allow a corporate guarantee to satisfy this reauirenent.   The
Aq»ncy also will propose indemnity agreements and letters of
credit at a later time.

     Please let me know if I can be of any further assistance.

                                      Sincerely,
                                     LM M.
                                      Lee M. Thomas
Enclosure

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                                                    9477.1986(09)
July 24, 1986

Mr. Gettinger
President
Midwest Oil Refining Co.
1200 Walton Road
St. Louis, Missouri  63114

Dear Mr. Gettinger:

     Thank you for your letter of June 25 addressing the effects
of the constrained insurance market on your business.  Although
we are aware of the difficulties in obtaining liability
insurance, EPA believes liability regulations are desirable for
several reasons.  First, the liability requirements assure that
funds will be available for third parties seeking compensation
for bodily injury and property damage arising from operation of
hazardous waste management facilities.  Second, without liability
coverage, many commenters to EPA believe that there will be
lessened public confidence in and greater opposition to proposed
and existing hazardous waste management facilities.  Third, these
regulations have the potential for inducing improved design and
operation of the facility resulting from the incentive of lower
insurance premiums and the oversight that insurers might provide
over facility operations.  Finally, when EPA published a proposal
on various methods of addressing the constrained insurance market
on August 21, 1985, we received many comments indicating
continued support for the liability requirements.

     While I understand that it is difficult to pay for a risk
assessment without prior assurance that insurance coverage will
be provided, we understand that roost insurers will insist on
conducting a risk assessment before they make a decision to offer
coverage or not.  We believe that this is sound insurance
practice.  In addition, risk assessors and insurance companies
have quoted risk assessment costs as generally falling between
$5,000 and $25,000; your $5,000 cost therefore appears to be at
the low end.

     In response to this situation, EPA has several ongoing
efforts.  First, the Agency developed the February 25, 1985 list
of Environmental Impairment Liability providers, a copy of which
you obtained and enclosed in your letter.  We will update this
list soon.
        This has been retyped from the original document.

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                               -2-

     Second, we expect to publish* final regulation allowing the
use of a corporate guarantee as a method of demonstrating
compliance with the liability requirements.  This regulation was
signed by the Administrator on July 3 and should be published
very soon.

     Third, we have begun work on developing a proposal to
authorize the use of other instruments to demonstrate compliance.
We expect to publish the proposal in approximately one year.

     Fourth, the Federal regulations allow both the state
assumption of this requirement (§§264.150 and 265.150) and the
use of state-required instruments (§§264.149 and 265.149), upon
meeting certain conditions.  You may wish to pursue this further.

     Finally, I urge you to consult with the appropriate
ofificials in Missouri, since the state has authorization to
administer these liability insurance regulations in lieu of the
EPA.

     With regard to your comment on the effect of a possible
lissting of used oil as hazardous waste, we received many similar
comments on our November 29, 1985, proposed rule.  Although no
final determination has been made yet on this issue,  these
comments will be fully considered and addressed before the
issuance of the final rule.

     I hope you find this information helpful.

                                             Sincerely,
                                             J. Winston Porter
                                             Assistant
Administrator
        This has Jbeen retyped from the original document.

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                                                           9477.1986(10)
mj
UNITED STATES ENVIRONMENTAL PROTECTION

            WASHINGTON. O C 204(0
                              JUN25B65
                                                     : •••**.'
  MEMORANDUM


  SUBJECTt  Union Carbide's March 1986 Financial Test
                      ^*™^^^      i      ***

  FROMi     Bruce WeddIe7^Dlfcree
-------
                              - 2 -
     Finally/ data front Union Carbide 'a "Conaoiidated Statement
ot Changes in Financial Position" reveala that uaxng any one of
•tnree meaaurementa ot ite caan now in tne caan tiow tu total
iiaoiiitiea ratio of the financial test will not provide the
jura wxtn a phasing vaiue tor tha ratio.

     Attacnad to too. a manor anduro ara copies of nemos praparad by
     our consultant a, wnich expitln in graatar dataii tna rationala
       thaaa tiva raaaona.
     in Adaition, tltnough not • trie* ly ralavant to tha quaation
ot accaptaomty ot union Caroida'i financial t«it, 1 an concarnaa
«ioout tna amount ot aoma of tna coat «ati0ataa liatad in tna
teat,  i auapact cioaura coat aatiaataa that ara natad aa $a,J?j
iino $4,bU4» may not oa adaquata.  Soma ot th« othar aatimataa
niao appaar unuauaiiy low.  1 would auggaat tnat an fiana and
coat aatinataa oa raviawad for adaquacy, if tnat ha a not yat
oaan dona.

     t»«cauaa Union Carblda owna or op«rataa »o many taciiitiaa
acroaa tna nation, 1 want to anaura that all Rag ion a and Stata*
with union Car&ida taciiitiaa ara awara of thia laaua.  I am
••naxng an K«gxon»x Division Director a a copy ot your incoming
mauiorandum, my raaponaa, and a list, davalopad from their test
auomiaoion and trora HiwUMtt data, ot thair taciiitias.  i appraciata
your cringing this matter to my attention,  it you have any
additional questions regarding thia matter, piaaaa contact caroia
Ananeioa on *'TS JtU-4761.

Attacnmenta

cct Hazardous waste Division Directors, Regions Z, IXX-X

                   u  14

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                                                              9477.1986(11)
          RCRA/SUPERFUND HOTLINE  MONTHLY

                             JUNE  86
3.  Financial Requirements/Closure Costs

    The regulations under 40 CFR 265,143(a) apply to the use of a trust
    fund as a financial assurance mechanism for closure of an interim
    status facility.  Section 265,143(a)(3) requires the owner/operator
    to make annual payments into the fund throughout the "pay-in period."
    The "pay-in period" is defined as the 20-year period following July
    6, 1982 (the effective date of the regulation per 47 FR 15032) or
    the remaining operating life of the facility, whichever period is
    shorter.  An interim status facility with  three surface impoundments
    has estimated different closure dates for  each unit.  If the facility
    uses a trust fund for closure/financial assurance, how does it make
    adjustments in the pay-in period for the different closure dates?
    Do the new closure/financial assurance regulations, effective October
    29, 1986  (see the May 2, 1986 Federal Register)(51 FR 16422)), change
    these requirements?

         Assuming that the estimated closure dates fall before July 6,
         2002 for the units, the pay-in period for the facility would
         equal the pay-in period for the unit  closing last.  Specifically,
         Section 265.143(a)(3) states that the owner/operator must make
         payments into the trust fund "over the remaining operating life
         of the facility as estimated in the closure plan...."  For

         example, if unit A closes in six years, unit B in eight years,
         and  unit C in ten years, the pay-in period would be ten years.
         Closure of the first two impoundments would constitute partial
         closure, as defined in $260.10, so that the facility would
         continue operating until the last unit closed.  A definition
         of "final closure' was added to $260.10 by the May 2, 1986
         regulations.

         The new closure/financial assurance regulations published in
         the May 2, 1986 Federal Register (51  FR 16422) do not directly
         affect the current pay-in period system.   EPA requested comments
         on the system in the preamble to the proposed closure/financial
         assurance regulations published in the March 19, 1985 Federal
         Register (see 50 FR 11068).   some comments suggested that the
         pay-in period should be as long as the shortest operating life
         of a unit at a multiple process facility.   EPA believes that
         the accelerated pay-in period may be cost-prohibitive for
         smaller facilities and discourage owners/operators from conducting
         partial  closures (51 F* 16438).   Presently,  EPA will maintain
         the existing pay-in period regulations and evaluate the situation
         further.

        Source:     Michael Northridge (202)  382-4790
        Research:   Jennifer Brock

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                                                        9477«1986(12)

              UNITED STATES ENVIRONMENTAL PROTECTION A
                        Jit**
MEMORANDUM

SUBJECT:  LTV Bankruptcy

PROM»     Carole J. Ansheles, Chief
          Closure/Financial Responsibility Section (WH-563-A)

TOs       Addressees
     On July 17, 1986, LTV Corp. and most of its subsidiaries
•filed  for protection under Chapter 11 of the Bankruptcy Code.
In a Chapter 11 proceeding, the debtor generally remains in
business during the bankruptcy action, retains his property, and
pays the creditors fron future earnings, in accordance with a
plan of rehabilitation approved by the court.  In a Chapter 11
proceeding, the debtor may be allowed to continue to operate the
business or a trustee may be appointed in the interest of the
creditors.

     The financial responsibility regulations require that an
owner or operator, or a guarantor of a corporate guarantee,
notify the Regional Administrator by certified nail of the
commencement of a proceeding under Title 11 (Bankruptcy), U.S.
Code, naming the owner or operator as debtor, within 10 days
after the commencement of the proceeding (see $$264.148(a) and
265.148(a)) Accordingly, LTV must notify appropriate officials
by July 27, 1986.

     Attached to this memorandum is a copy of information that
shows which facilities are owned by LTV or its subsidiaries,
according to our firm/facility data base.  Although it appears
that only Regions II, III, IV, V and VI have LTV facilities, I
am sending this to ell Regional Subpart H contacts, in the event
this listing is incomplete (please notify me of such errors).
Many of the facilities are located in authorised states.

     I suggest that you watch tor the required notification, and
in any case, ensure that financial responsibility mechanisms for
the LTV facilities are in order.  Of course, the notices -for
facilities in authorized states are unlikely to be sent to you;
please c out act your counterparts in the those states.  I also
suggest that you inforjn your Regional Counsels of this action. ,
OSW developed a guidance document entitled "Pursuing RCRA Subpart H
Interests in Bankruptcy Litigation", dated February, 1983, which
was provided to you at that time.

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                                -2-
     In a,-Mition, you  eu»y l*t  aware  that  the  General  Accojfitinc-
office (GAC) recently  publish*!  a  rwport re-gardin-g the risAs
pose*, by closing /closed  facilities  ("Hasardoue Wabtet  Environ*
aental Safeguard* Jeopar-lttec! When Faciities Cease Operating',
February 1986, GAO/PCEP-8S-77) .  Aa pert of  the information
collection en<*. analysis  that  •upporteri  this  report,  GAO develope
a list of PCP.A facilities owned  or  operated  fcy firm that have
declare^ bankruptcy.   X  just  receive* the attached nenoranlun
fron ICF, where they attenpted to  catch GAO's list of facility
o«ren with CPA identification niobtri*   Actin, pleaae let »e
know of any errora en  the list*
     Z will atterpt  to  track  notices  of bankruptcies erv5 provide
    with sir liar lists  of  facilities.   Call  ne  on F7.* 3K2-47C1
if ynu liav* anv rtu«»ftiona  or  if you nee-i another cor»y of trie
gui lance.

Attach ner.te
^«rsf 'Sosbcc, Region  I
Lclia fritter, Merlon  II
Pill Shrw^D, Peiion  XXI
J.P. Iinner% Peglon  IV
Dave StrinrMa-i,  Peaion V
7! ill «al lather,  r.eqion VI
fi*c wolf ran. Peg! on VI I
Carol Lee, Reoion, VIII
Phon^n Rothfichilrt, IX
Chuck rice, "
Cinny *!tein«r, C*»*Pf:
7cott Parrish, r?LRH
Pa-» Sbar,
Mike
Susan Srojrsp,

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               UNITED STATES ENVIRONMENTAL PROTECTION         9477.1986(13)
                          August 15, 19&G
 Mr.  C.T.  Hovlett, Jr.
 Director* Government Affairs
 Environinent,  Health and Cher.ical Safety
 Georgia-Pacific Corporation
 International Square
 1765 Eye  Street,  tZ.W.
 Washington, D.C.   20006

 Dear Mr.  Hewletti

      I an responding to your letter of August 4,  1966,  to
 Mr.  George Garland, eince the Office of Solid Haste hat been
 reorganised.   The specific question* you raised are addressee"'
 belowi

 OurSTr-fr'i  Oo those new provision* in 40 CFR Parti 2C4 and kC2
 automatically taVe effect in Califbrnia on Septehber 9, 193-3?

      The  corporate Guarantee rule that appeared in the Federal
 R*?i«ter  on July  11," 193G (51 FR 25350) is an interim final  rule.
 Comments  were requested fror the regulated corraunity on t'no  "forr."
 of the guarantee.  If the comments do not ehow a  need to modify
 the  rule, it  will become effective for the Federal RCHA progrxn
 on Septerser  9,  198ft.  Compliance with any applicable California
 State liability requirements may also be necessary» their regula-
 tions may differ  from the corresponding Federal rules on third
 party liability.   The key individual* from California you mentions"-
 in your letter would be able to offer you better  guidance in tho
 area of etate liability requirements.

      An additional requirenwnt is receipt by EPA of a written
 statement or  etatements, as the ease stay be, from the Attorney
 Qeneral(a) or insurance ccrreissioner(s) of the State in «hich
 the  quarantor is  incorporated and the State(e) in which the
 facility(ies) covered by the guarantee is (are) located, saying
 that the  corporate guarantee executed as described in sections
 264.147,  265.147  and 264.15100 (2) is A legally valid and
 enforceable obligation in that State.

      Althou
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                               - 2 -
th»ir r>ro-Tra*is because these starv-Urt's, oromulrpter1. or:  July 11,
19P6, ar<»  consi.-lero'*  to be l*»s« strirnent than  the  existing
Federal renulrernents.

OUFFTIQVt  Have  you  also ootain«d anj' response  frcri the Californii
Attorney General  about the leoality of the approver! cu*ranty under
California's  insurance law?

     BkS y«t,  we  have  not received srry response  from either the
California or the  G«ornia (State cf incorporation) State Attorney
General.

     I trust  that ny  ana-vers have txzen helpful.  If you havt 0;iv
further Ti«stic»ns, please call Carlos Lago on (202) 3d2-47C,w.
                              Carole J. Ansheles, Chief
                              Closure/rinancial Hastens iv>ilit/
                                Section  (WiI-5C3A)
                              ?«rrits anrt State Progra:.;s
CCI
            Gorlan-'*

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                    UNITED STATES ENVIRONMENTAL PROTECTION AGEMC*
                                                                9477.1986(16)
                                   SEP  - 4 1985
      MEMORANDUM
      SUBJECTi   Third-Party Letters of Credit, Convertible Bond*,
                •ubpart 0 Conference

      FROKi      Carole J. Ansheles, Chief
                Closure/Financial Responsibility Section

      TOt        Subpart H Contact o, Regions I-X


           We have recently received questions and researched the
      following two subjects*  which should be of interest to yous

      (1)  Third-Party Letter of Crediti  We received a question- fra.i
      an individual who wanted to know if a third party could obtain
      a letter of credit for an owner or operator who must comply wita
      the Subpart H requirements.  Our contractor, ICF, looked into tae
      matter, and concluded that a letter of credit obtained fcy a thir-
      perty on  behalf of an o«ner or operator would comply with the
      regulatory requirements of Subpart H if the language is identical
      to the language stipulated in 40 CFR $264.151 (d).  OOC, GEC.i, o;.Pi.,
      and  OSW agr*e.  Attachment 1 explains the reasoning behind the
      response*

      (2)  Convertible Bondsi  Me received a question concerning whetnor
      convertible bond ratings are acceptable for meeting financial t»sc
      requirements.  Attachment 2 shows XCF's analysis.  They concluded
      that a convertible bond issue should be acceptable in meeting
      financial teet requireraents if it is rated investment 
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                                                    9477.1987(01)



March 2, 1987


MEMORANDUM
SUBJECT:  Liability Requirements for Facilities Actively Seeking
          a RCRA Permit

FROM:     J. Winston Porter
          Assistant Administrator

TO:       Waste Management Division Directors
          Regions I - X


     As you know, before a treatment, storage, or disposal
facility is issued a RCRA permit, §270.14(b)(17) requires that
the facility demonstrate its ability to comply with the liability
coverage requirements of §264.147.

     We are aware that a number of facilities with Part B permit
applications currently undergoing review by EPA and the
authorized States do not have insurance coverage and cannot
otherwise demonstrate compliance with the §264.147 liability
coverage requirements.  The permit applicant's inability to
demonstrate compliance with this important financial
responsibility requirement is grounds for permit denial under
§270.10(e)(5).

     The constrained insurance market which currently exists
makes the §264.147 requirement difficult to meet.  We are
especially concerned about facilities that are actively seeking a
permit and can satisfactorily demonstrate compliance with the
other Part 264 regulations.  Some of these facilities face permit
denial solely because of the limited availability of insurance.

     As we agreed at the October, 1986 Division Director's
Meeting, we believe it is appropriate to grant such facilities
additional time prior to final action on the permit, to make
concerted efforts to secure insurance or provide an alternative
mechanism for lability coverage,  six months is suggested as
sufficient extra time; however,  facility-specific adjustments can
be made in order to be consistent with compliance orders issued
pursuant to the October 29, 1986, memorandum of "Enforcement of
Liability Requirements for Operating RCRA Treatment, Storage, and
Disposal Facilities."  Facilities that are close to either a
Notice of Intent to Deny (NOID)  or permit denial solely for
failure to meet the §264.147 liability coverage requirements
should be notified immediately that further permit processing
        This has been retyped from the original document.

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                               -2-

will be delayed for the duration 'of this final opportunity to
demonstrate compliance with §264.147.  Some of these facilities,
for instance, may be able to take advantage of the recently
promulgated corporate guarantee.  Others may now find it easier
to locate an insurer.  At the end of the additional period of
time, if the applicant still does not have an acceptable
financial instrument in place, the permit is to be denied.

     It should be understood that approving an additional few
months for facilities to provide the necessary demonstration of
compliance with our §264.147 liability coverage regulations does
not justify delaying any land disposal facility's permit
issuance/denial beyond the November 8, 1988 deadline.

     To the extent facilities accorded this additional time are
approaching NOID or permit denial during the next few months, I
realize this policy may affect the Regions' abilities to meet
quarterly SPMS targets.  Regions should identify, on a facility-
specific basis, the permitting targets for the second and third
quarters of FY 1987 that will be missed due to the exercise of
this policy.  The revised schedules for draft and/or final permit
determinations should also be provided.  This information should
be submitted in writing to Susan Bromm, Acting Director, Permits
and State Programs Division, by March 30, 1987.   The Office of
Solid Waste (OSW) will use this information in the quarterly SPMS
briefings for me and the Deputy Administrator.   In this way,
managers at both the Regional and national level will continue to
focus on the liability coverage issue and the utility of this
policy.

     In addition to the near-term SPMS reporting information,
OSWER also needs to be able to accurately characterize the
problems that operating hazardous waste facilities are facing in
regard to insurance for liability coverage.  Whereas OSWER has
previously relied upon informally-gathered or anecdotal
information, it has become increasingly important for OSWER to
have more facts about the magnitude of the problem.  I am,
therefore, asking for an overall list of the land disposal
facilities in your Region that are currently seeking an operating
permit but are not in compliance with §264.147.   Among these, you
should identify the facilities which,  in the judgment of the
Region, will not qualify for a RCRA permit due solely to their
lack of liability coverage.  This information should be submitted
to Susan Bromm no later than March 17, 1987.
        This has been retyped from the original document.

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                               -3-

     Please contact Matt Hale (FTS 382-4740) or Elizabeth
Cotsworth (FTS 382-4746) if there are questions regarding this
policy or the information being requested from each of you.

cc;:  Susan Bromm
     Jim Michael
     Kim Ogden
     Susan Absher
     Thad Juszczak
     Jackie Terusak
     Sue Gladek
     Elizabeth Cotsworth
     Matt Hale
     Permit Section Chiefs, Regions I-X
     RCRA Branch Chiefs, Regions I-X
        This has been retyped from the  original  document.

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                                                          9477.1987(03!
           UNITED STATES ENVIRONMENTAL MOTECTION AGENCY
                       WASHINGTON, O.C. 204<0

                           APR  I   (987
                                                       Of ICt OP
                                              •OLIO WATTI AND IMIftOINCV


Honorable Robert Dole
United States Senator
636 Minnesota Avenue
Kansas City, Kansas  66101

Dear Senator Dolet

     Thank you for your letter of March 6, 1967, concerning
the comments of your constituent, Mr. Gregory Shondell,
Secretary Treasurer of Heathwood Oil Company.  Mr. Shondell,
had written to you expressing concerns with hazardous waste
financial responsibility regulations under the Resource
Conservation and Recovery Act (RCRA).

     A particular concern of Mr. Shondell with respect to his
parts cleaning business, is the reluctance of his insurance
company, Federated Insurance, to provide either a Hazardous
Waste Facility Liability Endorsement or a Certificate of
Liability Insurance to the Kansas Department of Health and
Environment (KDHE).  Either of these documents, if submitted,
is sufficient to indicate Heathwood Oil Company's compliance
with RCRA liability coverage requirements.  The Endorsement
and the Certificate were developed specifically to ease
compliance with the RCRA liability coverage requirements.
Insurance companies can rely on the standard language of the
Endorsement or Certificate rather than having to assure that
the language of individual policies meet the requlatory
requirements.  At the same time, for regulatory and enforce-
ment authorities who must evaluate facility compliance with
various design, operating and performance requirements,
compliance with the liability coverage can be easily verified.
We are not aware of any insurance company's reluctance to
provide the Endorsement or Certificate when the policies
being issued fully comply with the RCRA liability coverage
requirements.

     As stated above, authority for the RCRA program currently
belongs to the State of Kansas.  Under Section 3006 of RCRA,
EPA may authorise qualified States to administer and enforce
their own hazardous waste programs.  Kansas has been authorized
since 1985.  As such, Kansas imposes regulatory requirements
that are equivalent or more stringent than those of the
Federal RCRA program.  As part of its authorized hazardous
waste program, Kansas relies on receipt of the Endorsement or
Certificate as the mechanism for indicating compliance with
its liability coverage regulations.

-------
     We understand that Mr. Shondell's situation is currently
under review by the KDHE.  A Meting was held between KDHE
official** Mr. Shondell, and Federated Insurance representatives
to review possible deficiencies in the coverage provided and
suggest changes that nay bring Heathwood Oil Company back
into compliance with Kansas regulations.  A final decision
is pending.

     There is a concern on the part of KDHE that one existing
policy for Heathwood Oil Company does not cover all its
hazardous waits operation!.  Our financial responsibility
•xpert, Mr. Mike wolfram (913-236-2800) in EPA's Region VII
office, in alto reviewing the Federated Insurance policy and
will be available to participate with KDRE officials and
Mr. Shondell's insurance company representatives to discuss
the policy in question.

     Mr. Shondell also commented on the difficulty of securing
liability insurance.  The EPA is aware of the constrained
environmental liability insurance market and is sensitive
to the problem for owners and operators of hazardous waste
management facilities seeking to comply with RCRA.  Enclosed
for Mr. Shondell's information is a list of companies that
offer Environmental Impairment Liability (EIL) Insurance-.

     There are changes taking place in the insurance market-
place that are favorable to the regulated community.  For
instance, Business Insurance, the trade publication of the
insurance industry, reported in its December 8, 1986, issue
that the two major vendors for EIL insurance are looking to
expand the volume of EIL business they write.  In addition,
risk retention groups are being formed to offer EIL coverage.
The Agency has also made efforts to offer relief to RCRA
facilities unable to secure insurance.  On July 11, 1986,
EPA promulgated a rule allowing an alternative instrument,
the parent corporate guarantee, to be used to demonstrate
financial assurance for liability coverage.  The Agency is
also developing another rule that will authorise more instruments
for providing liability coverage and will also amend current
insurance requirements that may be limiting the availability
of insurance coverage to haxardoue waste facilities.

     I hope this information on Mr. Shondell's situation and
on liability insurance is useful.  If I can be of any further
assistance* please let me know*

                              Sincerely,
                                 Winston Porter
                            V Assistant Administrator
Enclosure

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                                                           9477.1987(05,
                RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                  JUNE 87
7-   Liability Requirements  of  Subsidiaries
    EPA requires that all  hazardous waste  fims comply with the RCSA
    third party liability  requirements.  Besides insurance, compliance can
    be obtained through the use of the  financial test for  liability and
    the corporate guarantee for liability.  A hazardous waste company has
    six different subsidiary firms.  This  parent corporation has met the
    requirements of th« financial teat.  Can all six subsidiaries obtain
    a corporate guarantee  from the parent  corporation?

      Nothing in the regulation prevents the parent from using the
      corporate guarantee  for more than one sub-contractor.  But, the
      required multiples for the financial test must be based on a true
      aggregate of liability guaranteed.
    Source:     Carlo*  Lago   (202)  382-4780
    Research;   Georga  Kleevic

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                                                         9477.1987(0?
         UNITED STATES EN VIR°NMENTAL WOTECTION AGENCY
                     WASHINGTON. O.C. 20410


                         NOV -I 0 |&7
                                                         of
                                            •OLIO WA(Tf AND IMINOf NCV
Harry Shuford
Environmental Protection Insurance Company
220 E. 42nd Street, Suite 500
New York, NY  10017

Dear Mr. Shuford:

     I am writing you, at Robert F. Schiff's request, in
response to Mr. Schiff's letter of November 2, 1987 to the EPA
Office of Solid Waste.  In his inquiry, Mr. Schiff sought our
view of whether the Resource Conservation and Recovery Act
(RCRA) requirements that hazardous waste management facilities
demonstrate financial assurance for liability can be satisfied
by a policy issued by a risk retention group.

     The RCRA regulations at 40 CFR Subpart H require, in part,
that to satisfy the financial assurance requirements, an
insurance  policy must be issued by an insurer licensed to
transact business in one or more states.  (40 CFR 264.147(a)
UMii), (b)(l)(ii) and 265.l47(a)(1)(ii), 
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administer the RCRA program, therefore, state
be examined to determine whether your specific mchaMs
satisfies the RCRA financial assurance requirements^* is
otherwise consistent with state law.        *«wn« ana is
                                   Sincerely,
                                   Bruce R. Weddle
                                   Director
                                   Permits and State Division
cc:  Robert F. schiff
     RCRA Waste Management Division Directors, Region 1-x

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                                                    9477.1987 (10)


November 10, 1987

Honorable Nancy Johnson
House of Representatives
Washington, D.C.  20515

Dear Ms. Johnson:

     In my letter to you of March 19, 1987, I indicated that the
Office of Solid Waste was attempting to identify how many land
disposal facilities subject to the 1988 permitting deadline were
unable to meet the RCRA liability coverage requirements and,
among these, how many faced permit denial solely because of this
non-compliance.

     I am happy to be able to share the results of our inguiry
with you.  Information from our Regions indicates that the number
of existing land disposal facilities out of compliance with the
RCRA liability coverage requirement  (40 CFR Part 264.147) for
facilities totals no more than 19 and may, in fact,.be as few as
13.  Unfortunately, difficulties in clearly separating liability
coverage violations from non-compliance with other RCRA financial
responsibility regulations prevents me from being more precise.

     In regard to the number of land disposal facilities for
which liability coverage is the only impediment to permit
issuance, according to the best judgment of our Regional experts,
only one facility falls into this category.  The remaining 12-18
facilities are either unable to comply with other RCRA permit
requirements or else are expected to decide to close instead of
pursuing an operating RCRA permit.

     This information is good news to me and, I hope,  also to
you.  The results indicate that most land disposal facilities
actively seeking a RCRA operating permit at this time have made
concerted efforts to acquire insurance or otherwise demonstrate
their ability to provide coverage for third-party liability.
EPA's Regional offices, the States, and my own office continue to
work with the non-complying RCRA facilities to secure the
necessary liability coverage to comply with current regulations.

     In our meeting of late March, you also inquired as to the
mechanisms that facilities rely on for demonstrating liability
coverage.  Although not all of our Regions have been able to
provide us this information yet, I can share some illustrative
information.  Region I, for instance, reported that six out of
eight existing land disposal facilities seeking a RCRA permit use
the financial test to comply with §264.147 liability coverage
requirements; the remaining two facilities use insurance
policies.  In another EPA region, almost half (47%) rely upon the
        This has been retyped from the original document.

-------
                               -2-

financial test while the rest are either insurance (43%) or the
corporate guarantee (10%), which became effective as a liability
coverage instrument in September 1986.  I will forward a more
complete tabulation of this information as soon as it is
available.

     Please feel free to contact me if I can provide further
information on this issue.

                              Sincerely,
                             J. Winston Porter
                             Assistant Administrator

Enclosure
        This has Jbeen retyped from the original document.

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                                                          9477.1987(11).
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON. o.C  20460
            I r IOD"7                          S0u0 WASTE AND EMERGENCV

Richard Grain, Vice President
Ri,D Fabricating & Manufacturing, Inc.
Box 31225
Lafayette, LA  70503

Dear Mr. Grain,

   Thank you for consenting to participate in a pre-test of
a questionnaire developed by the Environmental Protection
Agency  (EPA) for the purposes of gathering information on
difficulties associated with third-party liability coverage
requirements of the Resource Conservation and Recovery Act
(RCRA).  The RCRA liability coverage requirements, contained
in 40 CFR Parts 264.147 and 265.147, are briefly described
below.

   The enclosed questionnaire is intended to nelp EPA better
understand the problems that owners and operators of
hazardous waste treatment, storage, and disposal facilities
have encountered in obtaining liability coverage, in
particular through insurance, to meet the current RCRA
requirements.  The information will provide EPA with a
factual basis for determining necessary modifications to
regulatory requirements and policies.  Responses to our
questions will not be used for enforcement purposes.   Your
participation in our pre-test, along with that of several
other hazardous waste management facilities or firms, will
enable EPA to determine whether our questions are clear and
understandable, arid also whether our instructions provide
helpful guidance.  Because of your willingness to
participate in this pre-test, you will not be required to
respond to the final questionnaire.

   Currently, RCRA financial responsibility regulations in
40 CFR Parts 264.147 and 265.147 (§§264.147 and 265.147)
require owners or operators of hazardous waste treatment,
storage, and disposal facilities to provide liability
coverage for third-party bodily injury and property damage
by sudden accidents arising from facility operations. The
RCRA regulations also require owners or operators of most
types of hazardous waste land disposal facilities to
maintain third-party liability coverage for bodily injury
and property damage due to nonsudden accidents.  The
respective coverage levels for sudden and nonsudden

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accidents must be at least Si million and S3 million per
occurrence, with annual aggregates of at least $2 million
and S6 million, exclusive of legal costs.  These
requirements apply to owners and operators of interim status
(5265.147) and permitted (§264.147) facilities or groups of
facilities.

   Financial instruments that can be used to provide
third-party liability coverage are also specified in the
264.147 and 265.147 regulations.  Insurance and a financial
test were initially included as allowable instruments for
liability coverage.  In July, 1986, in response to
difficulties that hazardous waste management facilities
experienced in obtaining liability insurance, EPA authorized
the corporate guarantee as an additional financial
instument.  We intend to further amend the regulations to
allow other instruments to be used to demonstrate compliance
with the RCRA liability coverage requirements.

   EPA has authorized most States to administer their own
hazardous waste programs in lieu of the federal RCRA
program.  While the liability coverage requirements of
authorized States may differ from the federal requirements
of §§264.147 and 265.147, they must be at least as
stringent.  Since your facility is located in an authorized
State, please base your responses to our questions on your
State's liability coverage regulations.

   You should answer all questions contained in the enclosed
questionnaire that are applicable to your facility or the
group of facilities owned or operated by your firm.   If a
response to a question requires more space than is provided
please use the back of the questionnaire or attach a
separate sheet of paper.  Please feel free to consult with
your insurance agent or broker, if necessary, to respond to
any of the questions.

   As a pre-test participant, any comments that you may have
regarding rephrasing either the questions or the
instructions for further clarity are welcome.  We encourage
you to note, on the questionnaire itself or on a separate
piece of paper, any additional instructions that might be
useful, or any particular difficulty you encountered in
answering our proposed questions.  Your estimate of the .
amount of time needed to respond, including preparation and
research time, would also be helpful to EPA in estimating
the burden that our inquiry places upon owners/operators.
At any time as you read through the questions or answer
them, you should feel free to contact Elizabeth Cotsworth at
202-382-4746 to discuss the purpose of the question, EPA's
expectations regarding the form or content of an answer, or
to provide general comments directly to us.

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   Upon completion of the questionnaire,  please return it  in
the enclosed envelope, along with any written comments,  to:

      Elizabeth cotsworth
      Office of Solid Waste, WH-563
      U.S. Environmental Protection Agency
      401 M Street, S.W.
      Washington, D.C.  20460

   We are requesting this information under authority of
Section 3007 of RCRA.  Information obtained under RCRA
Section 3007 must be made available to the public unless you
demonstrate to EPA that it is confidential.  The treatment
of confidential business information is provided for by
Section 3007(b) of RCRA and regulations contained in 40 CFR
Part 2.

   We look forward to your response to our pre-test.  We
expect it to provide EPA with useful information for
finalizing our questionnaire.
                               Sincerely,
                                 rcia Williams
                               Director
                               Office of Solid Waste
Enclosure

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                                                    9477.1987(12)
              RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                           NOVEMBER 87
3.    Financial Assurance

     Corporation A owns 100% of the voting shares of corporation
     B.  Corporation B owns over 50% of the voting shares of
     corporation C.  Can corporation A fulfill the requirements
     as a parent company of corporation C for the purpose of
     financial assurance, via corporate guarantee as required in
     Sections 264.143, 264.145, 265.143 and 265.145?

          In this situation corporation A is a "grandparent"
          corporation which indirectly owns over 50% of the
          voting shares of corporation C.  Corporation A does not
          fulfill the definition of a parent corporation stated
          in Section 264.141(d) (see April 7, 1982 Federal
          Register, 47 FR 15037) as:  "A corporation which
          directly owns at least 50% of the voting stock of the
          corporation which is the facility owner or operator;
          the latter corporation which is deemed a "subsidiary"
          of the parent corporation."

          The Agency adopted this definition to ensure that the
          connection between the two firms will be close and
          direct, and the parent company is likely to have a
          strong interest in the satisfactory performance of the
          subsidiary.

          Since corporation A is not a parent corporation, it may
          not be used to demonstrate financial assurance via a
          corporate guarantee for corporation C.

     Source:    Carlos Lago   (202)  382-4780
     Research:  Craig Cair.pbell
        This has been retyped from the original  document.

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                                                         9477.1988(01
,i° Sr
     -
      *        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      »   "                WASHINGTON. D.C. 20460
f AAlZZ

                                                            OFFICE OF

   FFR  9 5 IQAP                                       SOLID WASTE AND EMERGENCY RESPON
   I ^L/  ^- ^ Iw^x^^
  MEMORANDUM

  SUBJECT:  OSWER Directive  No.  9477.00-6  Guidance for Reviewing
            Exclusions  for Pre-Existing Condi£iy6Vs in RCRA TSDF
            Insurance Policies
  FROM:     Jeffery  D.  Denit,  Acting Dire
            Office of  Solid Waste  (WH-56~

  TO:       Robert L.  Duprey,  Director
            Hazardous  Kaste Management Division,  Region VIII


       This memorandum is  in response to your memorandum dated
  January  22,  1988 regarding OSWE* Directive No.  9477.00-6 and
  Subpart  H liability  insurance coverage.

       The guidance  i;*. -this Directive, "Reviewing Exclusions for
  Pre-Existing Conditions  in RCRA  TSDF Insurance  Policies," was
  developed because  the Regions differed in their willingness to
  accept policies  that contained pollution exclusions.   The
  guidance is  based  on the Agency's interpretation of the existing
  Subpart  H regulations.  Since the insurance certificate or
  endorsement  is a statement that  the policy fulfills the
  11 insured's obligations to demonstrate financial responsibility
  under 264/265.147" such certificates or endorsements should
  provide  evidence that the issued policies do not contain
  unacceptable exclusions.

       As  pointed  out  in the guidance, you may continue to rely
  upon the insurance certificate and the insurance endorsement
  required by  Subpart  H regulations to ensure that insurance
  mandated by  RCRA is  in place. As part of your  oversight role,
  however, the guidance suggests that you routinely review the
  pollution exclusions endorsements to policies.   Directive No.
  9477.00-6 should provide adequate guidance in reviewing these
  contract endorsements.  If problems or questions do arise,
  please do not hesitate to contact either OSW or OWPE for
  assistance.   OSW and OWPE are also currently ascertaining
  whether  the  Agency has funds to  retain a contractor to assist in
  the  review of insurance policies.  If the project is undertaken,

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                               -2-
the task for the contractor would most likely entail an analysis
of one "form" contract from each of the companies issuing
liability insuranca to RCRA TSDFs.

     In reference to your last point concerning the expansion of
liability insurance coverage for nonsudden events to all TSDFs,
there are currently no plans to revise the regulations.  In
developing the distinction between sudden and nonsudden
coverage, EPA relied on evidence contained in case histories
concerning damages associated with waste facilities.  As a
result of this analysis the Agency determined that storage and
treatment facilities were more likely to experience a sudden,
rather than nonsudden accident.  We believe that this
distinction is still appropriate; however, the regulations are
quite flexible.  If a Regional Administrator or State determines
there is a significant risk to human health and the environment
from nonsudden accidents at a treatment or storage facility,
such coverage may be required  (264/265.147(d)).

     Should your staff have further questions concerning these
issues, they may contact Mark Pollins at FTS 382-4780.

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                                                                  9477.1988(03)
               RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                 JULY  88
1. Tank Replacement

  A permitted storage facility has several above-ground  storage tanks that are
  managed in compliance with Subpart J of 40 CFR 264.  If the owner/operator
  replaces one of the tanks, would he be subject to any closure requirements?
  Would it make any difference if it were a facility with only one tank?

    Section 264.112(d) requires notification of  partial closure for surface
    impoundments, waste piles, land treatment units and landfills. This same
    section  requires notification  regarding  treatment, tank storage, container
    storage or incinerator facilities only in the case of final closure.  Replacement
    of a storage tank would not constitute final closure per Section 264.197, and
    partial closure is not applicable to a storage tank facility per Section 264.112(d).
    While not specifically required,  the owner/opera tor  should  decontaminate
    the removed equipment and notify the state or region of the  change.
    However, equipment that  is not decontaminated  must be  managed as a
    hazardous waste.

  Source:       Bill Kline         (202) 382-7924
                Chester Oszman   (202) 382-4499
  Research:      Laurie Huber

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                                                 9477.1988(1)4)
             RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                             OCTOBER 88
2. financial Assurance

Three  treatment, storage and  disposal  facilities (TSDFs) are wholly owned
subsidiaries of one company.   The three facilities need financial coverage for
nonsudden accidental occurrences: $3 million per occurrence and $6 million
annual aggregate.  Must the parent company provide the $3 million/$6 million
for each facility (a cumulative of $9 million/$18  million) or can all  of the
facilities be covered by the $3 million/$6 million?

   An  owner or operator of a hazardous waste treatment,, storage, or disposal
   fadlity, or a group of such facilities must demonstrate liability coverage in the
   amounts of $3  million per  occurrence and $6 million aggregate  (40  CFR
   Section 264.147(b)). As explained in the April 16,1982 Federal Register (47 £R
   16544), liability coverage is required on an owner or operator basis rather  than
   a facility basis. The annual aggregate coverage requirement takes into account
   the  risk of multiple occurrences among facilities owned by one company (47
   FR 16546).  Therefore, the company that owns three TSDFs as subsidiaries is
   only required to have $3 million/$6 million nonsudden accidental coverage,
   not $9 million/$!8 million.

Source:        Mark Pollins      (202)382-4780
Research:      Renee Pannebaker

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                                                 9477.1988(05)



             RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                            NOVEMBER  88



1.  Adjustment of Post-Closure Trust Funds Used for  Financial Assurance

A TSD facility has been in post-closure care for one year.  The facility owner or
operator had established a post-closure trust fund to meet  their financial
assurance obligations. Can the facility owner or operator remove from the trust
fund the amount which exceeds the remaining cost of post-closure care?

   According to Section 264.145(a)(10), during the period of post-closure care, the
   Regional Administrator (RA) may approve a release of funds if the owner or
   operator demonstrates to the RA that the value of the trust fund exceeds the
   remaining cost of post-closure care. Therefore, the facility owner or operator
   must receive approval for the release of excess funds from the RA, prior to
   removing that  amount from the trust fund.

Source:        Mark Pollins      (202) 382-6259
Research:     Kim  Jennings

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                                                        9477.1989(01)

            UNITIO STATIS IMVltONMEllTAL PtOTBCTWH ACf HOT
MEMOR^MPrtf
         ' ~~f
SUBJECT:  Acceptable Bond Ratings for Use in Subtitle c
          Financial Test

FROM:     Joseph S. Carra, Director
          Permits and state Programs Division

TO:       RCRA Branch Chiefs, Regions I - X


     we have recently received specific inquiries concerning
whether certain types of bond ratings meet the conditions
required by the bond rating alternative of the Subtitle C
financial test.  40 CFR 55264/265.143(f), 264.145(f),
265.l45(e), and 264/265.147{f).  Specifically, whether a BBB-
rating from Standard and Poor's (S&P) or a Baa3 rating from
Moody's satisfies the minimum ratings required by regulation.
In brief, these ratings can be used to satisfy the bond rating
alternative of the financial test.

     Regulations relating to the bond rating alternative of the
financial test specify that the owner or operator must have a
bond rating "of AAA, AA, A, or BBB as issued by Standard and
Poor's or Aaa, Aa, A, or Baa as issued by Moody's."  At the time
these regulations were promulgated, S&P had not yet begun the
practice of adding a "+" or "-" suffix to bond ratings, and
Moody's had not yet begun adding a "1", "2", or "3" suffix.  The
bond rating suffix indicates the relative standing of a bond
within a major rating category.  In other words, a BBB- bond has
a lower relative standing than a BBB bond or a BBB* bond, but
all three bonds fall within the major rating category of BBB
bonds.   The BBB- bond would have been rated as a BBB bond prior
to the time when S&P began adding a rating suffix.  Similarly, a
bond rated Baa3 by Moody's would have been rated Baa prior to
the time when Moody's began adding the rating suffix.
     In soMBary, pursuant to current regulations, a Moody's
rating of Baa3 or better, or a SfcP rating of BBB- or better
satisfies^the legal requirements of the financial test,  we note
that revisions to the financial test are currently being
considered.  The question of bond ratings will be fully
re-examined during this effort.

     If you have any questions, please call Mark Pollins on FTS
382-6259.

cc:  RCRA Hotline
     Regional Subpart H Contacts

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                                              PINK FILE COPY

                                                     9477.1990(01
                                                                        I
                                                                        u
 JAN  2 5 1990                                                            g
                                                                       o>
                                                                       m
                                                                       ••
MEMORANDUM                                                             j*
                                                                       CD
                                                                       o
                                                                       en
SUBJECT:  Clarification of 40 CFR § 264. 147 (a) (7) ,  (b) (7) ,             "
          and § 265.147(a)(7),  (b) (7)                                  cr
PROM:     Sylvia K. Lowrance, Director    '                             *
          Office of Solid Waste,  (OS-300)                               i
                                                                       cr>
                                                                       10
TO:       RCRA Branch Chiefs, Regions I-X                              g
                                                                       •*
                                                                       £
                                                                       O
     This memorandum clarifies the regulations at 40 CFR               5
§§264.147(a)(7), (b) (7) and 265.147(a) (7) ,  (b) (7) , which  require       •§
an owner or operator of a hazardous waste treatment, storage,  or       *
disposal facility  (TSDF) to report to the Agency claims for            £*
bodily injury or property damage  that result  from operation of        o
the facility.  We believe this clarification  is necessary because      ?
the Agency has been asked what types of information owners and        ^
operators must report to comply with those provisions.                 M-
                                                                       o
     The reporting requirement in those sections was promulgated       o
as part of a rulemaking related to liability  coverage on               H
September 1, 1988 and became effective on October 3, 1988.  Those      5
sections state that owners or operators must  notify the Regional       *
Administrator in writing within 30 days (i) whenever a claim for       M
bodily injury or property damages caused by the operation of a        z
TSDF facility is made against the owner or operator or an             o
instrument providing financial assurance  for  liability coverage        ^
under this section, and (ii) whenever the amount of financial           M
assurance for liability coverage  under this section provided by a      ^
financial instrument authorized by this rule  is reduced.  We have       *-
been asked to define the extent of the first  requirement, that        ^
is, the meaning of the language,  "whenever a  claim ... is made."        <°

     The purpose of the notification requirement is to provide
the Agency with early warning of  potential instrument failure  due
to pending claims and to provide  the Agency with data concerning
the incidence of valid third-party claims.  To achieve these

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                                2-

goeils the Agency envisions that TSDF facilities will report to
the* Regional Administrator whenever:

     1)   a claim results in a reduction in the amount of
          financial assurance for liability coverage
          provided by an authorized financial instrument, or

     2)   a certification of a valid claim for bodily injury
          or property damages caused by a sudden or non-
          sudden accidental occurrence arising from the
          operation of a hazardous waste treatment, storage,
          or disposal facility is entered into between the
          owner or operator and a third-party claimant for
          liability coverage, or

     3)   a final court order establishing a judgment for
          bodily injury or property damage caused by a
          sudden or non-sudden accidental occurrence arising
          from the operation of a hazardous waste treatment,
          storage or disposal facility is issued against the
          owner or operator or an instrument providing
          financial assurance for liability coverage.

     The regulation is not intended to require owners or
operators to report all types of claims that potentially could be
filed against a facility.  Section 264.151, a related provision
promulgated in the same rulemaking, authorizes the payment of
funds from the financial instruments only for valid third-party
claims and expressly excludes payment for certain categories of
damages or obligations such as claims under worker's compensation
la%r or resulting from automobile accidents involving vehicles
owned by the facility.  Similarly, the Agency intended to require
owners or operators to report only valid claims to the Regional
Administrator.

     The Agency did not intend that the reporting requirement
extend beyond the three situations listed above and plans to
clairify the regulatory language in the near future.  This
memorandum interprets the provision as it stands pending formal
clarification in the Federal Register.  It should be noted that
the Agency is clarifying this provision in the interim through
us« of a memorandum because of the particular circumstances of
this case.

     If you have any questions about this issue, please contact
Barbara Foster at 382-4696.

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                                                      9477.1990(02
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                                                           OFFICE OF
                                                   SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT:  Post-Closure Notic

FROM:     Sylvia K. Lowranc
          Office of Solid Was
                             J
TO:       Robert L. Duprey, Director
          Hazardous Waste Management Division  (8HWM-RM)

     This responds to your memorandum dated  26 March  1990,  in
which you requested modification of the RCRA regulations
regarding release of owners and operators  from financial
responsibility requirements.  You expressed  concern that  owners
and operators do not comply with the deed  notification
requirements of the regulations, and that  because  such a  deed
notation has a negative effect on the value  of the property,
there is a strong incentive for them not to  comply.   You
suggested that the regulations should explicitly require  such
compliance with the deed notice requirements as a  condition for
release from financial responsibility requirements.

     As you discussed in your memorandum,  sections 264.119  and
2615.119 require .owners and operators to record notations  on the
property deeds within 60 days of certifying  closure.  The deed
notification must specify that:  (a) the land has  been used to
manage hazardous waste, (b) use of the land  is restricted under
40 CFR Subpart 6 regulations, and  (c) a record of  the hazardous
wastes disposed of on the site has been submitted  to  the  local
zoning authority.  At the same time, sections 264.143(i)  and
2615.143 (h) require the Regional Administrator to release  owners
and operators from financial assurance requirements within  60
days of receiving certification that final closure has been
completed in accordance with the approved  closure  plan.   The
certifications mentioned in sections 264.143(i) and 265.143(h)
ar« those in sections 264.115 and 265.115.  Thus,  there is  no
explicit language stating that release from  financial assurance
requirements is conditioned upon a demonstration that the owner
or operator has fully complied with the requirements  of sections
264.119 and 265.119.

     We plan to amend the regulations to clarify that release of
financial assurance is conditioned on full compliance with
sections 264.119 and 265.119 in the next available rulemaking
vehicle.  Although enforcement is an available option to  obtain
compliance with sections 264.119 and 265.119, we encourage  you to
incorporate the requirements of sections 264.119 and  265.119 into

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closure plans to avoid the need for such enforcement action.
This will ensure that compliance with those sections will be
complete before the release from financial responsibility.

     If you have any questions or comments regarding this
memorandum, please feel free to contact Ed Coe at FTS 382-6259

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TSDF Technical Requirements
(Parts 264 and 265)
                               ATKl/1112/18sm

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9480 - TSDF
TECHNICAL
REQUIREMENTS
Parts 264 & 265
                  ATKl/l 104/39 tcp

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                                                                  9480.00-14


                                MAR  ' 3  V
TO THE STATES AND COMPACT REGIONS:

SUBJECT:  COMBINED NRC-EPA SITING GUIDELINES FOR DISPOSAL OF MIXED LOW-LEVEL
          RADIOACTIVE AND HAZARDOUS WASTE


As you are aware, the Low-Level Radioactive Waste Policy Amendments Act of 1985
(LLRWPAA) established milestones (and penalties for not meeting these
milestones) to ensure adeouate development of future disposal capacity for
commercial low-level radioactive waste (LLW).  The penalties are Quite severe
and the deadlines do not leave much room for slippage.

We would like to call to your attention the January 1, 1988 milestone (Section
5(e)(l)(B)) which requires that each non-sited compact or non-member state
develop a siting plan for a LLW disposal facility.  These siting plans must
include detailed procedures and a schedule for establishing a disposal facility
location and preparing a license application.  Among other things, Section
5(e)(l)(B)(111) provides that the siting plan shall:

     "... Identify, to the extent practicable, the process for (1) screening
     for broad siting areas; (2) identifying and evaluating specific candidate
     sites; and (3) characterizing the preferred site(s), ..."

This letter serves four purposes:

(1) to Inform states and compacts that, under current Federal law, the U.S.
Nuclear Regulatory Commission (NRC) and the U.S. Environmental Protection
Agency (EPA) have dual jurisdiction over mixed low-level radioactive and
hazardous waste (Mixed LLW); (2) to state that both NRC and EPA do not consider
the absence of EPA's final comprehensive location standards to be Justification
for states and compacts to not meet their obligations under the LLRWPAA; (3) to
convey that both NRC and EPA are committed to providing guidance to states and
compacts who request help In their efforts to meet the January 1988 LLRWPAA
milestone for siting plans; and (4) to jointly transmit the NRC-EPA combined
siting gulomllnts for Mixed LLW (enclosed).

Dual statutory authority exists for Mixed LLW, which 1s regulated by the NRC
under the Atomic Energy Act (AEA), as amended, and by EPA under the Resource
Conservation and Recovery Act (RCRA), as amended.  Mixed LLW is defined as
wtste that satisfies the definition of LLW in the LLRUPAA and contains
hazardous waste that either Is listed 1n 40 CFR Part 261 Subpart 0 or causes
the LLW to exhibit any of the hazardous waste characteristics Identified 1n 40
CFR Part 261 Subpart C.  Both the NRC and EPA staffs consider that Mixed LLW

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                                     • e. -
can be disposed  of  in accordance with the above statutes and NRC and EPA
regulations.

In 1982,  the  NRC promulgated regulations containing minimum site suitability
requirements  for LLW land disposal facilities under 10 CFR Part 61.  In 1981,
EPA promulgated  minimum location standards for hazardous waste treatment,
storage,  and  disposal facilities 1n 40 CFR Part 264.  Section 3004(o)(7) of
RCRA, which was  added by the Hazardous and Solid Waste Amendments of 1984
(HSWA), requires EPA to publish guidance identifying areas of vulnerable
hydrogeology; this  guidance was completed and Issued 1n July 1986.  Section
3004(o)(7) of RCRA  also requires EPA to specify criteria for the acceptable
location  of new  and existing hazardous waste treatment, storage, and disposal
facilities as necessary to protect human health and the environment.  EPA
anticipates proposing these location standards in September 1987 and
promulgating  them by September 1988.  This schedule provides affected states
and compacts  with a preview of the final standards and an opportunity to
comment on the standards before promulgation.

Because of uncertainty about the precise content of fPA's future location
standards, states and compacts may nave questions regarding the site selection
process.  Both NRC  and EPA are com Itted to providing guidance to states and
compacts  who  request help in developing their siting plans by the January 1,
1968 deadline.   Technical questions pertaining to siting a disposal facility
for Mixed LLH should be submitted in writing to either the NRC or EPA contacts
listed below, as appropriate.
For questions about the LLRUPAA
siting deadline or NRC's sit*
suitability requirements, contact:
For questions relating to
EPA's location standards
contact:
Or. Sher Bahadur
Division of Waste Management
Mall Stop 623-SS
U.S. Nucltar Regulatory Commission
Washington, O.C.  20555
Mr. Bumell Vincent
Waste Management Division
Mall Code UH-565
U.S. Environmental Protection
  Agency
Washington, D.C. 20460

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                                     -  3  -
In summary, if states and compacts  observe the  enclosed NRC-EPA combined siting
guidelines and keep abreast of the  developing EPA  location standards, tne
absence of final  RCRA location standards  should not  prevent  states and compacts
from meeting their obligations under the  LLRWPAA.

                                       Sincerely,
                                        HUM y.  Thompson, yr., ^^rector
                                        Offl$< of Nuclear MateHal
                                          Safety and Safeguards
                                        U.S. Nuclear Regulatory Commission
                                        J. Winston Porter
                                        Assistant Adnlnlstrator
                                        Cffict of Solid Waste
                                          and Emergency Response
                                        U.S. Environmental  Protection Agency
Enclosure:
As stated

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          COMBINED NRC-EPA  SITING  GUIDELINES  FOR  DISPOSAL OF COMMERCIAL
                MIXED  LOW-LEVEL  RADIOACTIVE AND HAZARDOUS WASTES
 Introduction

 The  Low-Level  Radioactive  Waste  Policy Amendments Act of  1985  (LLRWPAA)
 requires  states  and compacts  to  develop  siting plans for  low-level radioactive
 waste  (LLW) disposal  facilities  by January  1, 1988.  These disposal facilities
 my  receive commercial mixed  low-level radioactive and hazardous waste (Mixed
 LLW),  which 1s regulated hv the  U. S. Nuclear Regulatory  Commission (NRC) under
 the  Atomic Energy Act (AEA),  as  amended, and by  the U. S. Environmental
 Protection Agency (EPA) under the Resource  Conservation and Recovery Act
 (RCRA), as amended.   Mixed LLW is defined as waste that satisfies the
 definition of  LLW in  the LLRWPAA and contains hazardous waste  that either 1s
 listed in Subpart 0 of 40  CFR Part 261 or causes the LLW  to exhibit any of the
 hazardous waste  characteristics  identified  In Subpart C of 40  CFR Part-261.  To
 assist 1n applying that definition, NRC  and EPA  recently  developed joint
 guidance entitled "Guidance on the Definition and Identification of Commercial
 Mixed  Low-Level  Radioactive and  Hazardous Waste and Answers to Anticipated
 Questions" (Jan. 8, 1987).  NRC  has promulgated LLW regulations and EPA has
 promulgated hazardous waste regulations  that pertain to the siting requirements
 for  disposal facilities for Mixed LLW.   Because of uncertainty about the
 precise content  of EPA's future  location standards, states and compacts may
 have questions regarding the  site selection process.  This document provides
 combined NRC-EPA siting guidelines* to be used before EPA's new location
 standards are promulgated, to facilitate development of siting plans for
 disposal facilities that may  receive Mixed  LLW.

 Section, 5(e)(l)(B) of the  LLRWPAA requires  states and compacts to develop
 siting plans for LLW disposal  facilities by January 1, 1988.   In addition to
 other  Information, these siting  plans must  Identify, to the extent practicable,
 the  process for  (1) screening for broad  siting areas, (2) Identifying and
 evaluating specific candidate sites, and (3) characterizing the preferred
 site(s).  It ft  anticipated that this process will be based primarily on the
 site suitability requirements that apply to LLW disposal.  If  facilities also
 receive Mixed LLW, their siting  requirements will reflect additional
 requirements that apply to disposal of hazardous waste as defined by RCRA.

 In 1982, NRC promulgated regulations which  contain minimum site suitability
 requirements for LLW  land  disposal facilities In 10 CFR 61.50.  EPA has also
 promulgated minimum location  standards for  hazardous waste treatment, storage,
and disposal facilities in 40 CFR 264.18.   Considerations affecting siting art
also found in 40 CFR 270.3, 270.14(6) and (c).  Although  both  NRC and EPA have
 incorporated siting requirements 1n existing regulations  for LLW and hazardous
waste disposal,  respectively,  the 1984 Hazardous and Solid Waste Amendments
 (HiSWA) tb RCRA require EPA to publish guidance identifying areas of vulnerable

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hydrogeology.   In July 1986, EPA published this guidance in "Criteria for
Identifying Areas of Vulnerable Hydrogeology under the Resource Conservation
and Recovery Act—Statutory Interpretative Guidance, July 1986, Interim Final
(PB-86-224953),"  The 1984 HSHA also requires (1n Section 3004(o)(7)) tfiat EPA
specify criteria for the acceptable location of new and existing hazardous
waste treatment, storage, and disposal facilities.  EPA anticipates proposing
these location  standards 1n September 1987 and promulgating then in final form
by September 1988.

EPA's scheduled date for promulgating its final location standards 1s nine
months after the LLRWPAA January 1, 1988, milestone for non-sited states and
compacts to develop siting plans.  Therefore, states and compacts may require
some assistance 1n their efforts to develop siting plans for LLW disposal
facilities that may receive Mixed LIU.  The two agencies are Issuing these
combined guidelines to promote the development of siting plans by states and
compacts.  Both NRC and EPA consider that the absence of EPA's final
comprehensive location standards for hazardous waste disposal facilities Is not
an adequate basis for states and compacts to delay development of siting plans
for LLW disposal.

States and compacts should proceed at this tint to develop siting plans in
accordance with the existing NRC and EPA requirements.  The following combined
NRC-EPA guidelines are provided for use by the states and compacts, and are.
based on existing NRC regulations in 10 CFR Part 61 and EPA regulations In 40
CFR Parts 264 and 270.  As EPA continues Us development of location standards,
both agencies will strive to keep states and compacts Informed about the status
of the developing siting requirements.

Combined NRC-EPA Siting Guidelines

Site suitability requirements for land disposal of LIU are provided In 10 CFR
Section 61.50.  These requirements constitute minimum technical requirements
for geologic, hydrologlc, and demographic characteristics of LLW disposal
sites. -Several of these requirements Identify favorable site characteristics
for near-surface disposal facilities for LLW.  The majority of the site
suitability requirements, however, Identify potentially adverse site
characteristics that must not be present at LLW disposal sites.  The site
suitability requirements 1n 10 CFR Part 61 are Intended to function
collectively with the requirements for facility design and operation, site
closure, waste classification and segregation, waste form and packaging, and
institutional controls to assure Isolation of LLW for the duration of the
radiological hazard.  The NRC Technical Position entitled "Site Suitability,
Selection, and Characterization* (NURE6-0902) provides detailed guidance on
implementing the site suitability requirements In 10 CFR Part 61.

EPA has also promulgated certain minimum location standards for hazardous waste
treatjcent, storage, and disposal facilities.  These standards are provided  In

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 40  CFR  Section  264.18.  As previously noted,  the  hazardous waste regulations
 also  Include  other  location considerations as well as applicable provisions cf
 other Federal statutes.  For example, Subpart F of 4C CFR Part 264 requires
 establishment of ground-water monitoring programs capable of detecting
 contamination fro*  land disposal units.  While not a siting criterion per se,
 this  requirement cm preclude siting In locations that cannot be adequately"
 monitored or  characterized.  A further description of location-related
 standards and applicable provisions of other Federal statutes can be found in
 the "Permit Writers' Guidance Manual for Hazardous Waste Land Storage and
 Disposal Facilities:  Phase I Criteria for Location Acceptability and Existing
 Applicable Regulations' (Final Draft - February 1965).  This guidance manual
 describes five  criteria for determining location acceptability:  ability to
 characterize, exclusion of high hazard and unstable terrain, ability to
 monitor, exclusion  of protected lands, and Identification of areas of
 vulnerable hydrogeology.  The first four of these criteria have a basis in the
 regulations and are fully described In the manual.  The fifth criterion,
 vulnerable hydrogeology, 1s defined in the RCRA Interpretive guidance manual
 mentioned above (Criteria for Identifying Areas of Vulnerable Hydrogeology
 under the Resource  Conservation and Recovery Act—Statutory Interpretive
 Guidance, July  1986, Interim Final (PB-86-224953)).

 However, since  HSUA also added other requirements 1n addition to location
 standards to  prevent or Mitigate ground-water contamination, EPA recognizes
 that vulnerable hydrogeology must be considered 1n conjunction with design and
 operating practices.  Vulnerability should not be the sole determining factor
 in  RCRA siting  decisions.  Rather, this criterion provides a trigger for more
 detailed evaluation of sites that are Identified as having potentially
 vulnerable hydrogeology.  The extent of necessary site review and evaluation is
 related directly to the extent to which a location "falls" or "passes" the
 vulnerability criterion.  Sites that are determined to be extremely vulnerable
will require much closer examination than sites that are deemed non-vulnerable.
The results of  this more detailed review may then provide a basis for eventual
permit conditions or modifications in design or operating practices.

By  combiningtUt above technical requirements, standards, and guidance of both
agencies, WC and EPA have formulated the eleven guidelines Ustto below.  The
use of tern in the guidelines 1s consistent with their regulatory definitions
 In  10 CFR Part  61 and 40 CFR Parts 260 and 264.  The combined set of location
guidelines Is Intended by the agencies to apply only as guidance to states and
compacts developing siting plans for LLW disposal facilities that may receive
Mixed LLW.  These combined guidelines are not Intended to displace existing
standards and guidance.  In addition, the Independent guidance of both agencies
should be considered in any application of the combined siting guidelines.

The combined siting guidelines for a coewerclal Mixed LLW disposal facility are
as  follows:

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i.  Primary emphasis in disposal site suitability should be given to
isolation of wastes and to disposal site features that ensure that the
long-term performance objectives of 10 CFR Part 61, Subpart C are met.

2.  The disposal site shall be capable of being characterized, modeled,
analyzed, and monitored.  At a minimum, site characterization must be able
to (a) delineate ground-water flow paths, (b) estimate ground-water flow
velocities, and (c) determine geotechnkal properties sufficiently to
support facility design.  At a minimum for site ground-water monitoring,
disposal site operators must be able to (a) assess the rate and direction
of ground-water flow In the uppermost aquifer, (b) determine background
ground-water quality, and (c) promptly detect ground-water contamination.

3.  The disposal site must be generally well-drained (with respect to
surface water) and free of areas of flooding or frequent ponding.

4.  The disposal site shall not be in the 100-year floodplaln.

5.  The site must be located so that upstream drainage areas are minimized
to decrease the amount of runoff that could erode or inundate waste
disposal units.

6.  Disposal sites may not be located on lands specified In 10 CFR Section
61.50(a)(5), including wetlands (Clean Water Act) and coastal high hazard
areas (Coastal Zone Management Act).  Location of facilities on the
following lands must be consistent with requirements of applicable Federal
statutes:  archeologlcal and historic places (National Historic Places
Act); endangered or threatened habitats (Endangered Species Act); national
parks, monuments, and scenic Mvtrs (Wild and Scenic Rivers Act);
wilderness areas (Wilderness Protection Act); and wildlife refuges
(National Wildlife Refuge System Administration Act).

7.  The disposal site should provide a stable foundation for engineered
containment structures.

8.  Disposal sites must not b« located In areas where:
         ' »
(a) tectonic processes such as faulting, folding, seismic activity, or
vulcanlsm may occur with such frequency and extent to affect significantly
the ability of the disposal facility to satisfy the performance objectives
specified In Subpart C of 10 CFR Part 61, or may preclude defensible
modeling and prediction of long-term Impacts; In particular, sites must be
located more than 200 feet from a fault that has bten active during the
Holocene Epoch;

(b) surface geologic processes such as mass wasting, erosion, slumping,
lands tiding, or weathering occur with such frequency and extent  to affect

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 significantly the ability  of  the  disposal  facility to ireet the performance
 objectives  in Subpart C of 10  CFR Part  61, or may preclude defensible
 modeling and prediction of long-term  impacts;

 (c) natural resources exist that, if  exploited, would result in failure to
 meet the performance objectives  in Subpart C of 10 CFR Part 61;

 (d) projected population growth and future developments within the region
 or state where the facility 1$ to be  located are likely to affect th«
 ability of  the disposal facility  to meet the performance objectives In
 Subpart C of 10 CFR Part 61; and

 (e) nearby  facilities or activities could adversely Impact the disposal
 facility's  ability to satisfy  the performance objectives in Subpart C of
 10 CFR Part 61 or cculd significantly mask an environmental monitoring
 program.

 9.  The hydrogeologic unit beneath the  site shall not discharge ground
 water to the land surface  within  the  disposal sitt boundaries.

 10.  The water table must  be sufficiently below the disposal facility to
 prevent ground-water intrusion Into the waste, with the exception outlined
 under 10 CFP. Section 61.50(a)(7).

 11.  In general, areas with highly vulnerable hydrogeology deserve special
 attention in the suing process.   Hydrogeology is considered vulnerable
when ground-water travel time along any 100-foot flow path from the edge
of the engineered containment structure 1s less than approximately 100
years (Criteria for Identifying Areas of Vulnerable Hydrogeology Under
RCRA—Statutory Interpretive Guidance, July 1986, Interim Final •
 (PB-86-224953)).  Disposal sites  located in areas of vulnerable
hydrogeology may require extensive, site-specific Investigations which
could lead  to and provide  bases for restrictions or modifications to
design or operating practices.  However, a finding that a site is located
1n an area of vulnerable hydrogeology alone, based on the EPA criteria. 1s
not considered sufficient  to prohibit siting under RCRA.

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                                                          9480.1984(01)
                                                JUN 12
Mr. Lou A. bellone,
Eastham Unit
P.O. box 16
Lovelady, TX  75851

Dear Hr. bellonet

     Thank you for your ree«nt letter to Administrator Ruckelshaus
regarding the use of cavities produced a* a result of nuclear
weapons testing for the disposal of hazardous waste.  Hr. Ruckelsnaus
has asked me to respond to your letter*

     The major concern in the disposal of hazardous waste is in
containing the waste so that the potential for Migration of
hazardous constituents is minimized.  For this reason, EPA
generally requires the installation of a liner that will prevent
migration of hazardous constituents during the active lite of
the land disposal facility and a cover to minimize infiltration
of precipitation at facility closure.

     The deposition of hazardous wastes in deep underground rock
formations that are capable of containing the wastes without use
of liners or covers Is not currently anony the options that EPA
allow*, although we are actively developing reyulations to address
this typo of disposal.  However, severe fracturing of underground
rock formations can be expected as a result of underground nuclear
testing.  Such fracturing would likely provide conduits through
which hazardous constituents could migrate.  Furthermore, preoic-
tion of tne routes of mijration would be iia^ossibl*.  Additional
detonation where hazardous wast.es have been placed could result
in the generation of hazardous byproducts of unknown character
and contribute to the dispersal oc hazardous constituents under-
ground.  Nuclear test sites, therefore, are (>roo«My unsuitable
for hazardous waste

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              that  thi- lnf°"*tion 1. helpful to you.
                                     Sincerely yours,
                                     Itenneth A.  Shustvr
                                     Chief,  Land Disposal Branch
                                     OffiCt  Of Solid  Mtstt
WH-565E:Rich Stessel:pj»S206s382-4654:WSMi6/l2/84

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                                                    9480.1985(01)
April 1, 1985

MEMORANDUM
SUBJECT:  Applicability of the HSWA Minimum Technological
          Requirements Respecting Liners and Leachate Collection
          Systems

FROM:     John H. Skinner, Director
          Office of Solid Waste  (WH-562)

TO:       Waste Management Division Director
          Regions I - X


     We have received numerous inquiries regarding the
applicability of the HSWA-imposed minimum technological
requirements for liners and leachate collection systems at
hazardous waste landfills, surface impoundments, and waste piles.
This memorandum outlines the most critical factors for
determining the applicability of the minimum technological
requirements.  The guidance contained herein will be incorporated
into an upcoming version of the Reauthorization Statutory
Interpretation (RSI) for the minimum technological requirements.
Other important applicability issues, such as definition of the
term "replacement unit," will be addressed in the RSI.

     As you know, the new minimum technological requirements are
contained in sections 3004(o) and 3015 of RCRA.  Among other
things,, these sections require that (a) new landfill and surface
impoundment units and lateral expansions and replacements of
existing landfill and surface impoundment units must have two or
more liners and a leachate collection system above (in the case
of a landfill) and between the liners; and (b)  new interim status
waste pile units and lateral expansions and replacements of
existing interim status waste pile units must meet the current
regulations for new, permitted waste piles.  RCRA Subtitle C
permits issued after November 8,  1984, must include these
provisions, and interim status facilities must meet the
requirements with respect to waste received after May 8, 1985.
        This has been retyped from the original document.

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                               -2-

     The key term in understanding the applicability of the
minimum technological requirements is "existing unit," because
all other types of units (i.e., new units, lateral expansions,
and replacements) are required to meet the minimum technological
requirements.  (However, interim status units that do not receive
hazardous waste after May 8, 1985, are excepted.  In addition,
units permitted prior to November 8, 1984, are not addressed
under section 3004(o).)

     In order for a unit or portion of a unit to qualify as an
"existing unit" and, therefore, be exempt from the minimum
technological requirements, all of the following criteria must be
met.

     1.   The unit must have received solid or hazardous waste in
          some portion of the unit as of November 8, 1984.

     2.   The area was identified in operating records, closure
          plans,  state permits, etc., as being part of the unit
          as of November 8, 1984.

     3.   The area was "operational" as of November 8, 1984
          (i.e.,  the area was constructed by that date in
          accordance with Federal, State, and local requirements,
          including licenses and permits).

     The attached memorandum, regarding a facility in Region 7
that has recently proposed to place waste above a landfill trench
that is reaching its physical capacity, may provide you with
additional useful guidance.

Attachment
        This has been retyped from the original document.

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                                                             9480.1985(02)
                            JUL 17 1985             RE:  WIBCJ0285
MEMOIRA5DOM


SUBJECT;    Status of Sludges  in Surface  Impoundments or
            Land Treatment  Units when  Hastewater Treatment
            Sludges art  Listed in  $261.31  t  5261.32

PROMi       John H. Skinner, Director
            Office of Solid waate

TO:         James H. Scarbrough, Chief
            Residuals Management Branch, Region IV


     in your June 20, 1985  memorandum, you asked if wastewater
treatment aludge listings under S261.31 or 1261.32 would
apply in all situations  where  land disposal  or storage of
the associated wastevaters  was practiced.  YOU cited  a previove
memorandum from this office dated  November 23, 1984,  wherein
a determination vas made that  vastevaters  from wood preserving
faeilitieo treated in spray irrigation fields generated
listed K001 wastewater treatment sludges,  and that such
units are subject to the hazardous waate facility permitting
standards.

     Any pollution abatement technique such  as the land
treatment, disposal, or  storage of a vastevater will  invariably
generate A sludge.  The  mechanisms for sludge formation
involve either precipitation,  adsorption,  or accumulation
of biomasa.  These units would be  subject  to regulation
if the asoociated wastevater treatment sludges are listed in
S261.31 and 1261.32, if  the aludges exhibit  a characteristic,
or if the wastewaters themselves are listed  or exhibit a
           	          units would therefore be subject to
§264,
cei  Regional Administrators
     Regional Branch Chiefs

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                                           9480.1987(31)
          RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                             MAY  87
A tank" owner closed a tank which contained waste solvent  in  L977.
The waste solvent was an unlisted,  ignitable waste (0001) which
was punped out of the tank.  Some ignitable residues remained  in  the
tank.  The tank was sealed and has  not been used since 1977.   is
the tank a RCRA disposal facility?

   The preamble of the May 19, 1980 Federal Register (40  CFR 264  and
   265, page 33170) specifically states that the regulatory  scheme
   of Subtitle C is prospective, i.e., it applies to hazardous waste
   management which takes place after the effective date  of  the
   Subtitle C regulations.  Inactive (either closed or abandoned)
   disposal facilities could be subject to RCRA §7003 enforcement
   authorities and CERCLA.  If the tank was closed in accordance  with
   existing industry practices, it  would be an inactive disposal
   facility not subject to RCRA Subtitle C regulation unless the
   waste in the tank is subsequently managed in a manner  that  would
   constitute treatment storage or disposal.

   Source:    Chet Oszman        (202) 382-4499
   Research:  Becky Cuthbertson

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                                                      9480.1987(02)
y.r>
      1         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      ?
                           WASHINGTON, D.C. 20460

                         OCT 29 i9.?/
                                                  SOLID WASTE AND EMEPGENC" RES
 MEMORANDUM

 SUBJECT:  Union Carbide Agricultural Products Company Waiver
           Request Under §3004(o)(2) cf.>;SW

 FROM:     Marcia Williams,  Directorf/f f/M /
           Office of Solid Waste   ~ '. ;     ^

 TO:       Robert I. Greaves, Acting' Chief
           Waste Management Branch (3HW30)


      Per your memorandum of September 16, 1987 requesting our
 assistance in responding to Union Carbide Agricultural Products
 Company's (UCAPCO) application for a variance under §3004(o)'(2)
 of RCRA, our views are set forth below.

      Section 3005(j) requires the installation of double liners
 and a leachate collection system by November 8,  1983 for all
 surface impoundments that existed on November 3,  1984 and that
 qualified for interim status.  Certain exceptions from these
 requirements, however,  are authorized under §3005( j ) (2) , ( 3 ), (
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                              - 2 —


 installation of liners and a leachate collection system.   A
 fundamental premise of UCAPCO's proposal is that an evaluation
 for effectiveness occur at the edge of the waste management area
 and not at the point hazardous constituents enter the ground
water.  Whereas hazardous constituents will be allowed to
 contaminate ground water beneath the units, UCAPCO claims that
 its proposed system will not allow migration beyond the waste
management area.   In UCAPCO1s view,  "any degree of contamination
 [of the ground water] within the waste management area is authorized"
provided that the ground water outside the area is protected.
Accordingly,  UCAPCO's proposal attempts to demonstrate that the
system will control the escape of hazardous constituents from
 the ground water beneath the unit to ground water beyond the
waste management area as opposed to the escape of hazardous
constituents to the ground water beneath the unit.

     In our view,  UCAPCO's proposal fails to meet the requirements
of §3004(o)(2) on its face.   Section 3004(o)(2) authorizes a
waiver of the double liner and leachate collection system require-
ments only upon a demonstration that a proposed alternative will
"prevent the migration of any hazardous constituents into the
ground water or surface water" at least as effectively as a double
liner and leachate collection system.   UCAPCO's proposal,  however,
is specifically lesigned to allow migration of hazardous consti-
tuents into the ground water.  The term "ground water" in §3004(o)(2)
is not qualified by the phrase "beyond the waste management
area."  Mor is there any evidence of Congressional intent that
the term "ground water" means only ground water beyond the waste
management area.   Surely if Congress had intended such a test
for waivers of the double liner and leachate collection system
requirement,  it would have stated so clearly.

     To the contrary,  in amending §3004 of RCRA,  Congress devised
a threefold scheme to ensure protection of human health and the
environment from hazardous waste treatment, storage and disposal
activities.   The first "line of defense" is the requirement of a
liner and leachate collection system to prevent the escape of
hazardous constituents from landfills or surface impoundments.
The second line of defense is the requirement  for ground-water
monitoring to detect any failure of such containment device.  And,
the third line of defense is the requirement to take corrective
action to clean up any problems resulting from such failure.
Containment with collection and removal of leachate within the unit
to prevent leakage to ground water as the intended purpose of the
liner and leachate collection system requirement is supported not
only by the language of §3004(o)(2)  in authorizing waivers of such

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requirements only for methods equally effective at preventing
migration _to ground water but also by the language of §3004(o) (5) (3).
That section provides that the liner requirement of §3004(o)(1)(A)'i)
can be satisfied pending issuance of regulations by construction
of a liner system" ... to prevent the migration of any constituent
through suoTi liner. . . ."  Any system,  therefore, that only controls
constituent migration after it enters ground water cannot meet
the equivalency test  of §3004(o)(2).   The system proposed by UCAPCO
fully allows migration of hazardous constituents to the ground  water
beneath the unit and  therefore does not prevent the migration of
hazardous constituents "into the ground water."  Moreover,  because
migration of hazardous constituents freely occurs with respect
to such ground water,  UCAPCO's proposed system cannot be "as
effective as" a double liner and leachate collection system
in preventing migration to the ground water.

     UCAPCO's argument that SPA regulations express an intent
on EPA's part to "write off" ground water beneath hazardous waste
management units because they only require compliance with
ground-water standards at the edge of the waste management area
demonstrates UCAPACO's fundamental misunderstanding of SPA
regulations.  Compliance with ground-water standards is determined
at the edge of the waste management area simply because the
installation of ground-water monitoring wells directly through  a
unit was considered to put at risk the effectiveness of containment
devices underlying such unit.  As the preamble to the regulations
establishing the ground-water monitoring system stated:

          EPA does not believe that the placement of
     wells required in this regulation presents a
     significant risk that monitoring wells will
     become conduits  for leachate passing to ground
     water.... [TJhe  regulation calls for monitoring
     at the edge of the waste management area rather
     than under the solid waste itself.  This is to
     eliminate any suggestion that the wells should be
     drilled through  any natural or artificial barrier
     that may contain the waste.  The problem of
     migration of leachate will be reduced by plac[ing]
     monitoring wells outside of any containment barrier.
     ... 45 PR 33066,  33193 (May 19,  1980).

Thus,  this requirement in no way evidences an intent on EPA's part
to allow contamination of ground water beneath a unit.  Accordingly,
any reference to SPA  regulations in the legislative history of
§3004(o) cannot support the conclusion that Congress intended to
forfeit the quality of ground water beneath hazardous waste manage-
ment units.  In fact,  EPA has expressly stated its contrary views with
respect to the meaning of "ground water" in guidance addressing a

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waiver provision similar to §3004(o)(2).  Section 3005(J)(4)
authorizes a waiver from the double liner and leachate collection
system requirements upon a showing of, among other things:

     that such surface impoundment is located, designed
     and operated so as to assure that there will be no
     migration of any hazardous constituent into ground
     water or surface water at any future time.  The
     Administrator or the State shall take into account
     locational criteria established under Section 3004(o)
     (7).

EPA's guidance regarding the meaning of "ground water" states:

     EPA Interprets this provision as referring to the
     closest source of ground water or surface water,
     whether contaminated or noncontamlnated, usable or
     nonusable, as the point to which there must be no
     migration of any hazardous waste or constituents.
     As used in this provision, "ground water" includes,
     but is not limited to, all USDW's and all aquifers;
     it encompasses "all water below the land surface in
     a zone of saturation" (40 CPR 260.10).  A demonstration
     of no migration in saturated soil would not be appro-
     priate for this exemption because waste migration into
     the saturated zone is interpreted as ground-water
     contamination.  Because Section 3005(J) is concerned
     with migration that could be prevented through the
     installation of a double liner and leachate collection
     system and because the escape of hazardous wastes or
     constituents through overtopping, surface water runon
     and runoff, and/or erosion are addressed independently
     in various sections of 40 CPR Part 264, the demonstration
     of no migration to surface waters for this exemption
     should address migration In subsurface soils.  The
     demonstration of "no migration" to both ground water
     and surface water should therefore be made for the
     unsaturated soil beneath the facility.  Interim Status
     Surface Impoundments Retrofitting Variances, EPA/530-SW-
     86-017 (July 8, 1986).

     In sum, §3004(o)(2) allows for waivers of the liner and
leachate collection system requirements only for alternatives at
least as effective as the first line of defense against migration
of hazardous constituents, I.e., containment within the unit and
maximizing the collection and removal of leachate before It can
migrate out of the unit.  Congress did not authorize substitution
of a corrective action type system that is responsive only  to
the further migration of hazardous constituents as a substitute
for initial containment requirements.  See Senate Report No.
98-284 at 28.  In fact, Congress specifically amended §3004 "to
correct the deficiency in existing regulations allowing double
liners and ground-water monitoring to be alternatives." H.R.
2867, Conf. Rep. at 89.  Accordingly, substitution of UCAPCO's

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                              - 5 -
proposed system for the double liner and leachate collection systen
requirement would undermine Congress' and the Agency's carefully
crafted, tiered strategy for ensuring protection of hunan health
and the environment.

     We are''therefore unable to conclude that the proposed
alternative would be as effective as the liner and leachate collection
systen requirement in preventing migration of hazardous constituents
into the ground water.

cc:  Bruce Weddle
     Susan Bromm
     Joe Carra
     Bob Tonetti
     Suzanne Rudzinski
     Bob Kayser
     Les Otte
     Tina Kaneen
     Charles Openchowski
     Pamela Savage
     Chris Rhyne

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Ground Water Protection Standards
(Subpart F)
                                 ATKl/1112/19sm

-------
9481-
GROUND-WATER
PROTECTION
STANDARDS
Parts 264 & 265 Subpart F
                 ATKl/l 104/40 kp

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                                                         9481.1985(01)
                               CCT 15::/:


MEMORANDUM

SUBJECT!     Requirements  for  Analysis of Appendix VIII
             Constituents  in Groundwater

PROMt        Marcia Williams,  Director
             Office of Solid Waste  (v.H-562)

TOi          Stephen 3. Uassorsuq,  Director
             Hazardous Waste Management  Division  (3HWOO)


Your memorandum of September 20 relating the problems associated
with the analysis of Appendix  VIII  constituents  in ground water
raises s number of valid concerns.   The  adequacy  of  the current
!JW-846 methods for routine determinations of all  constituent* is
being evaluated, and the rational*  for requiring  a complete
Appendix VIXZ analysis in  ground water is being reexamined*

A* you know, the existing  permit regulation* (S270.14(c)(4))
irequlre the permit applicant to identify the concentration of
oach Appendix YIZX constituent in any plum* of contamination.
In response to nuoerous requests for selective waivers of the
regulatory requirements, the Office of Enforcement and Compliance
Monitoring (OECM) and OSWCK issued  a joint memo  to the Regions
(Price/Thomas, August 16,  1984).  This, memorandum, however, only
axempted a small number (21) of the 375 Appendix  VIII constituents
from monitoring requirements through enforcement  discretion,
based on the constituents* instability in water or the lack of
EPA-aecepted, standardised test procedures.  The  Agency has also
proposed to eliminate the  need to test for these  substances in
ground water in a proposed rule (4t PR 3878C, October 1,  1984).

Currently, several Agency  activities are underway that should
address many of the? concerns outlined in your memorandum.  A
workgroup. bm» been formed  to examine the need for changes in
the regulatory) requirement for the  analysis of all Appendix VIII
constituents,  m order to justify  a regulatory  amendment, the
workgroup is gathering data and considering several  options that
•ay lead to a more limited set of parameters for ground-water
analy»is*  This work and the subsequent  regulatory development
process could lead to a proposed rule by late 198 f,  and the promul-
gation of a final rule a year  later. For more details on the
progress of the Appendix VIZI  workgroup, contact Bob April, Land
Disponal Branch (382-4*84).

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                              -  2 -

 In  support of the vork'jroun effort th-j Agency  is oxamininrj which
 constituents  (beyond  those cited  in  the prica/Thoniaa ^enorancuru)
 should  be dropped frcn  the ronitcring requirement  fceca;..e2 of
 instability in water  or  lac* of  analytical methods.  .".jthOLis
 evaluation work  is also  underway  to  dup^ort  prciulya t ion of tr.w
 analytical nethoda assiqned to tha Appendix  VIII constituents  in
 the rule proposed on  October  1,  1J34.  Addicional  r^etnoUa evaluation
 is boinq conducted throuoh the Suporfund program and the Ground-
 water Monitoring Task force.  Any questions  concerning  these
 efforts, or other questions on the adequacy  of current  FPA methods,
 should  be directed to Paul Priedran, studies and Methods dranch
 (3*2-4796).
The current regulations are very specific  in  requiring  that  ^
Appendix vill constituent be <1«te rained.   Therefore,  a  strict
reading of tha regulations would not allow either of  the  alterna-
tives put forward by the Amy  to be deemed acceptable under
current EPA policy.  The Agency is aware of the  implementation
problems involved in perait issuance that  arise  from  the  current
rigid regulatory approach.  Other Region*  are also wrestling
viith the implementation questions you are  facing in Region ill.
for assistance in resolving pern it- related Appendix VZII  questions,
you nay contact Bob Kayser of  the P«ralt Assistance Team  (382-4539).

A* noted above, any regulatory changes  in  the Appendix  VXZZ
monitoring requirement would not b«cc*« sffsctlv* until tha  end
of 1987.  I realise, however,  that permitting need* are more
immediate.  As increasing numbers of facilities  are required to
submit Appendix VIII analyses, the lack of a  realistic  policy
Tiay create a slowdown in the permitting process  as well as
inconsistent compliance.
                                      «
Therefore, I have initiated efforts by OSW to expand  the  number
of Appendix VIII constituents  exempted  from ground-water  monitoring
requirements beyond those listed in the proposed rule of  October
1, 1984.  I intend to issue some form of interim guidance early
next year.  In addition, I have made the completion of  the  tasks
supporting a regulatory change a high priority.

Finally, In regard to your concern about whether the  Army facility
can certify compliance with applicable  ground-water monitoring
requirement* by November 8, I  would refer  you to the  Federal
Register notice of September 25, 198S (SO  PR  38948).  That  notice
indicate* that the applicable  requirements are those  in Part
265.  Therefore, compliance with Part 2<4  or  270 requirements
involving Appendix VZIZ should not be an issue for certification.

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                               - 3 -
cc: i-.aste ,''a nan-went,  rivision Directors, regions  I,  II,  ir.d  I.'-x
    ?ruce '.'addls
    JJCK Lehman
    Eileen Claussen
    ?eter Guerrero
    Terry Grooan
    Boo April
    Bob Kayier
    Paul Friedman
    Dave r"ri
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                                                           9431.1985(03'
                             c:r 2 8  -:"


KZVORAN'PUV.


SUBJECT:  Ground-Water Monitoring Variance Requirements
                                      Orlpinal Si?ned By
FRO.'!:     Harcia Willians, Director   u™,. -a 111111—3
          Office of Solid Waste  
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layer of containment before the end of the post-closure care oeriod
You will need to evaluate the Ponce landfill against the regulatory'
requirements.  The regulation does not appear to grant the Regional
Administrator authority to impose more stringent requirements.

     If you or your staff have any questions concerning this
natter, please telephone Bob April of my staff (FTS-382-4654).

Attachment

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                                                    9481.1985(04)
              RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                            OCTOBER 85
Definition of "Physical Compliance"

Owners or operators of land disposal facilities which have
interim status prior to November 8, 1984, will have their interim
status terminated on November 8, 1985, unless a Part B permit
application is submitted prior to that date and the
owners/operators certify that the facilities are in compliance
with all applicable ground-water monitoring and financial
responsibility requirements per §270.73(c), of the July 15, 1985,
Federal Register (50 FR 28753).  The notice of implementation and
enforcement policy for this provision in the September 25, 1985,
Federal Register (50 FR 38946), states that to certify compliance
a facility must be in "physical compliance" with the Federal or
State ground-water monitoring and financial responsibility
requirements.  What is "physical compliance" for the Federal
ground-water monitoring requirements?

     Owners or operators must certify "physical compliance" with
     applicable ground-water monitoring requirements defined in
     40 CFR Part 265, Subpart F (see Appendix A, 50 FR 38949).
     "Physical compliance" for purposes of certification under
     §3005(e) means that unless the owner/operator meets the
     waiver requirements under §265.90, the facility must have a
     ground-water monitoring system which meets all of the
     specifications of §265.91.  This system must be physically
     in place at the unit for which certification is required and
     sampling and analysis under §265.92 must be underway.

Source:   Jackie Tenuszak (202) 475-9328
        This has been retyped from the original document.

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                                                    9481. 1985(05)
             RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                           OCTOBER 85


6.    Ground-Water Monitoring Well Construction

     A bladder pump is used instead of a bailer to obtain ground-
     water samples.  What construction material is required for
     the bladder pump and the sample tubing in the well?

          When a bladder pump is used,  it is connected to a
          sample tube that runs inside the well casing to the
          surface.  The RCRA Ground-Water Monitoring Technical
          Enforcement Guidance Document (Draft) (Sections 3.2.1 &
          3.6)  dated August 1, 1985 recommends that the well
          casing, bladder pump, and sample tube be made of Teflon
          316 stainless steel.  In the case where an existing
          well is constructed of different materials, this
          guidance document recommends that the enforcement
          official decide if the well allows for the collection
          of representative ground-water samples as it is built
          or whether another well should be built with more
          inert, resistant materials (Section 3.7) adjacent to
          it.

          Source:  Ken Jennings (202)  475-9328
        This has been retyped from the original document.

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                                                    9481.1985(06)
             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                           DECEMBER 85


Compliance to Detection Groundwater Monitoring

6.   As part of his RCRA permit,  the owner/operator of a land
     disposal facility must conduct compliance monitoring in
     accordance with §264.99.   If,  after several years of
     compliance monitoring, the owner/operator can show that
     Appendix VIII constituent levels are no longer present above
     background levels, is it possible for the owner/operator to
     revert to detection monitoring levels per §264.98?

          Once the facility has been triggered into compliance
          monitoring and it becomes part of the permit, the
          owner/operator must conduct compliance monitoring for
          the number of years equal to the active life of the
          facility (including any waste management activity prior
          to permitting, and the closure period per §264.96(a)).
          Upon conclusion of the compliance period, the
          owner/operator may be able to return to detection
          monitoring for any remaining period of post-closure
          care, provided that:  (1) no corrective action is
          required (§264.99(i) or §264.100);  (2) the constituent
          levels are at or below background levels; (since the
          detection monitoring program is designed to detect
          increases over background levels, a facility which was
          meeting a ground-water protection standard set at a
          level above background would continually be required to
          switch from detection monitoring to compliance
          monitoring; hence,  the return to detection monitoring
          would not have any practical value unless constituent
          levels were at or below background levels); and (3) the
          owner/operator submits an application for a permit
          modification  (§270.41(a)(5)(v)).

          Source:   Mark Salee  (202)  382-5742
        This has been retyped from the original document.

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                                                    9481.1986(01)


May 15, 1986


MEMORANDUM


SUBJECT:  Identification of Uppermost Aquifer in Fill

FROM:     Marcia E. Williams, Director
          Office of Solid Waste  (WH-562)

TO:       Harry Seraydarian, Director
          Toxics and Waste Management Division
          Region IX

     I am writing in response to your memorandum of February 27,
1986, concerning ground-water monitoring at the IT Corporation's
Vine Hill facility.  I agree that the IT Corporation must monitor
the uppermost saturated zone regardless of whether the saturated
zone is manmade fill or natural rock.

     The intent of the regulations is to monitor the first
ground-water contamination, not to link monitoring to a
commercially productive aquifer.  The preamble to the regulations
(33192 FR. May 19, 1980) states "The monitoring program seeks to
detect contamination of the uppermost aquifer because that will
be the first ground water affected by a leaking disposal
facility."  The draft Technical Enforcement Guidance Document
(August 1985) states "The uppermost aquifer extends from the
water table to the first confining layer (or ten feet into
bedrock) and includes any overlying perched zones of saturation."
Such monitoring provides essential information on the direction
and concentration of the flow of contaminants from hazardous
waste units since formations of low permeability (e.g., aquitards
and aquicludes) may divert the flow of contaminants to surface
water, upgradient wells, or beyond downgradient wells so that the
contaminants are not discernable to lower monitoring wells at the
waste boundary.

     The arguments of the IT Corporation seem to center around
semantic arguments over the nature of a "geologic formation."
Instead, IT should focus on the saturated zone and early
detection of contaminant flow from the site.  As a policy matter,
this office supports the location of wells so as to most
efficiently detect contamination.
        This has been retyped from the original document.

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                               -2-

     If you have any further questions concerning this matter,
please telephone me (FTS-382-4627) or have your staff telephone
Arthur Day of my staff (FTS-382-4658).

cc:  Regional Waste Management Division Directors,
       Regions I-VIII, X
     John Lehman
     Bruce Weddle
     Kenneth Shuster
     Arthur Day
        This  has  been retyped from the original document.

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                                                             9481.1986;
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 204CO

                           JUL 25  B85
                                              SOUD WASTI AND IMIMGINCV
Mr. Alan McConnell, Legislative Director
Office of the Honorable Newt Gingrich, MC
House of Representatives
Washington, D.C. 20515

Dear Mr. McConnell:

     This is a follow-up to our phone conversation concerning
the issues raised by Mr. William Gardiner of Analytech in
Georgia.

     The document, 'Minimal Cost Instrumental Approaches to
Ground Water Monitoring," by Mr. William Gardiner applies  to
organic analysis for ground water monitoring as specified  in
40 CPR Part 261, Appendix VIII.  The Administrator has signed,
and will place in the Federal Register, a new ground water
monitoring requirement in 40 CFR Parts 264 and 270 Appendix IX.
This proposal will replace existing requirements with new
requirements to analyse ground water for 250 specific chemicals
derived from the Appendix VIII, plus additional chemicals
designated by Regional Administrators on a site specific
basis.

     Except for the chemical* which may be designated on a site
specific basis, the organic chemicals listed in Appendix XX may
be determined by a combination of gas chroma tographic (specific
detector) methods or a combination of gas chromat ©graphic (speci-
fic detector) and gss chroma tographic/mass spectrometric methods.
Mr. Gardiner may employ, froo the Agency's point of view,  any
combination of the above-mentioned techniques as specified In the
appropriate methods of SW-846.

     We hope) this information helps you in aiding Mr. Gardiner.
                                                y&y
                                   Paul Frfedman
                                   Chemist
                                   Technical Assessment Branch
cc:  Bob April
     David Friedman
     Peter Guerrero

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                                                                   9481.1986(04)
              RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                JULY 86
3.   Ground-Water Monitoring;   Establishing  Background Values

    According to 40 CFR 264.98(c)  the owner/ooerator (o/o) of a land
    disposal facility must establish background values  for the ground-
    water monitoring parameters specified  in  the  facility permit.  The
    o/o must establish these  background  values using the procedure
    specified in 40 CFR 264.97(g)  which  reouires  that background data be
    based on guarterly sampling of ungradient wells for one year.

    (a) Interim status facilities  may not have the necessary qround-water
    monitoring data needed for a permit  since the 40 CFR 265 ground-water
    monitoring reguirements are very general  and  not specific for
    individual constituents.   How  does an o/o of  an interim status
    facility meet the 40 CFR  264.98(c) standard?

    (b) Mew facility owner/operators must obtain  a permit prior to
    construction of the facility per 40  CFR 270.10(f)  (50 FR 23751).  Does
    drilling ground-water monitoring wells  constitute construction?  If
    so, how does the o/o meet the  40 CFR 264.9R(c) standard?

         (a) An interim status facility  may fulfill the background data
         requirement for permitting in a number of ways.  Assuminq the
         facility o/o has been conducting  an  indicator  evaluation program
         as required bv 40 CFR 265.92 and 265.93(b), the o/o may
         submit the data that have been  collected to that point with the
         permit application.   As required by  40 CFR 270.14(c)(6), the o/o must
         also submit a proposed list of  indicator parameters or hazardous
         constituents which could  reasonably  appear in  the qround-water
         at the site, and background values for each proposed constituent
         (40 CFR 264.98).  If the  o/o cannot  submit background values for every
         one of the proposed  constituents,  the o/o must submit procedures to
         calculate these values (40 CFR  270.14(c)(6)(iii) and (iv)).  The o/o
         would then generate  the background data  during the first year
         of the permit.  The  final backqround values would automatically
         become part of the permit.  (See  the July 26,  1982 Federal
         Register, 47 FR 32306.)

         (b) 40 CFR 270.14(c)(6) requires owners  and operators of new
         facilities to submit only plans for  detection networks prior to
         permit issuance.  Well installation  may  take  place after the
         permit issues.  Well construction  could  constitute facililtv
         construction.

         Source:    Vernon Myers (202) 382-4658
         Research:  Jennifer  Brock

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                                                      9481.1986(06



                              6 AUG 86
Honorable Bon Dole
United States Senator
444 S.E. Ouincy
Topeka, Kansas  66&J33

Dear Senator Dolei

     Thank you for vour June 24, 1986, letter on behalf of
Mat Sharilvn Dienst.  Ms. Dienst expressed concern about the
use of alternate concentration Units at RCRA/C^RCLA sites.
Specifically, Ms. Dienst raised questions regarding the
RCRA/CERCLA consent orders on the N.I.B.S. facility in Kansas.

     The ground-water protection standard (GWPS) under Subpart
F of 40 CPR Part 264 requires a concentration limit for each
hazardous constituent entering the qround—water from a RCRA
requlatory unit.  This concentration limit is established  in
the facility permit and serves as a concentration limit beyond
which degradation of ground-water Quality will not he allowed.
These concentration limits determine when corrective action
is required.

     There are three possible concentration levels that can be
used to establish the GWPSt

     1.  Background levels of the hazardous constituent;

     2.  Maximum concentration limits listed in Table 1
         of Section 264.94(a) of the regulations? or,

     3.  Alternate concentration limits (ACLs).

The first two levels are established in the facility permit
unless the facility owner or operator applies for an ACL.

     To obtain an ACL» a permit applicant must demonstrate
that the hazardous constituents detected in the ground-water
will not pose a substantial present or potential hazard to
human health or the environment.  The factors used to evaluate
ACL reouests are nineteen specific items related to potential
adverse effects on ground-water guality or hydraulically-
connected surface water quality.

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     An ACL demonstration is essentially a risk assessment
and risk manaqement nrocess in which a determination of
acceptable oround-water contamination is made.  If the ACL
demonstration relies on a showino that adverse effects on
human health and the environment will be delayed rather than
prevented, then the ACLs will not be nranted.  The permit
annlicant must provide evidence that the adverse impacts will
be prevented.

     The Aaency has a draft ACL Guidance which includes six
case studies; including the case study which Ms. Dienst requested.
The draft guidance is subject to chanqe and  is not EPA's official
policy.  The quidances, when finalized will serve to elaborate
on the ACL criteria and to provide examples of acceptable ACL
arquments throuqh case study examples.  We expect to finalize
the guidance by the end of October, 1986.

     EPA's Reqion VII office in Kansas City/ Kansas, has the
lead role in reviewinq the NIES facility ACL anplication and
makinn the final decision on the concentration limits.

     Reqardinq Ms. Dienst's question about appeal riqhts, I
suqqest she call *r. Lloyd Guerci, Director of EPA's RCRA
Enforcement Division.  His telephone number  is (202) 382-4808.
The process for orders under RCRA is presently under review.
However, the RCRA process is expected to operate in the same
wanner as that for CERCLA orders.  Under the CERCLA order
nrocess, oublic comment is sought by the respective EPA
Regional Office.  Once corrective action alternatives have
been aqreed upon by EPA and the responsible party, a draft
consent order is usually published for public comment.  Based
on public comments EPA may renegotiate the order.  In this
way the public's views are taken into account.  There often
are ongoing discussions, such an public meetings, with the
public involved throughout the process.

     ACLs are usually granted through the permit process.
Nationally, neither EPA nor authorized States have approved
any- ACL applications to date.  However, Region IV, with
Headquarter's concurrence, has given tentative approval for
am ACL for nickel at a facility in Alabama.  .This ACL is
awaiting permit issuance.  The CERCLA program has made ACL-
like decisions at one site: Sylvester, NH.

     I hope this letter addresses Ms. Dienst's concerns.
If I can be of anv further assistance, please let me know.

                              Sincerely,
                              3. Winston Porter
                              Assistant Administrator

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                 HATES ENVIRONMENTAL PROTECTION AGENCY
                                                     9481.1986(08)
                            SEP 2 6 1986
Honorable 'lewt Ginqrich
^ouse of Representatives
'•'ashinqton, D.C.  20515

near Mr. Cinrjrich:

     Thank you for your September 8, ISflfi, letter concerning
the State of Georgia's choice of analytical methods for qrounrt-
water -ionitori.no.  Georqia Environment*! Protection Division'«»
renuirement that only qas chromatoqraphy/ma«a soectrometry
(ac/ms) be used for organic analysis is not inconsistent
with the Federal oroaram.

     \a Mr. Friedman explained  in his July 25 letter to which
you referred, the Environmental Protection Agency (EPA) has
approved both methods:  gc and  gc/ms.  It is possible to"
perform Appendix VTII (40 CPR Part 261) organic analysis
usino only qc.  However, EPA• a  <~,round-water Task Force chose
to use gc/ms, as the State of Georgia has*  In many cases
conventional qc detectors cannot discriminate between the
compounds of interest and the interfering compounds that are
oresent.  we nrefer nc/ms because it nrovides certain struc-
tural information that can minimize interferences.  Using
qc only, it nay be possible for a laboratory to demonstrate
the ability to overcome the problem by employing a second
column containing a different stationary phase.  However, in
the case of analyzing complex samples for a number of oollu-
tants, this technique would be  quite expensive.  The qc/ms
allows for the simultaneous or  raoid sequential measurement
of large numbers of different organic oollutants.  This
method is especially useful in  the Appendix vill analyses to
which you referred*  Thus, it is BPA's preference to use
qc/ms.

     Undeor Section 3006 of the  Resource Conservation and
Recovery Act* EPA has granted authorization to the State of
Georgia.  Therefore, it is Georgia's, rather than EPA's,
analytical requirements that apply.  Consistent with its
authorization, Georgia may require use of the qc/ms method.
Please contact Georgia's Department of Natural Resources
Commissioner, Leonard Ledbetter, for further information on
Georgia's requirements.  He can be reached on  (404) 656-4713.

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     I hop« I have clarified this situation for vou.   If  I
can be-of any further assistance, olease let me know.
                              Sincerely,

                                   Lee M. IhooaS

                              Lee  M. Thomas
WH-562/GARMAN/T.MCMANUS - 475-8613/sld/9-l8-B6/Control
No: AL602860/Due Datet 9-22-R6/CONTROLLED CORRESPONDENCE

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                                                                    9481. 1986(10)
                  RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                   OCTOBER 86
7.  Corrective Action for New Facilities

    Is an owner/operator seeking a pre-construction  permit  for a new RCRA treatment,
    storage,  or disposal facility subject  to corrective action under Section 3004(u)
    of RCRA?

         Yes, Section 3004(u) states  that  corrective action  is required "for all
         releases of hazardous waste  or constituents from any solid waste management
         unit at a treatment, storage,  or  disposal facility  seeking a permit..."
         under Subtitle C of RCRA,  "... regardless of the time at which waste
         was  placed in such unit..."  Therefore, any solid waste management
         unit located on a site which is involved in a permit application is
         subject to corrective action ($264.101) even if there has never
         been any previous authorization for hazardous waste activity at the
         site.  Examples of units which could be included in corrective
         action under these circumstances  are sanitary landfills, dumps, and
         units in which waste which is  normally exempt from  RCRA regulation
         have been stored or disposed.  Releases of  hazardous waste would
         include releases of listed ($261.31-33) or  characteristic hazardous
         wastes.   Releases of hazardous constitueuts from both hazardous and
         solid wastes are also covered.  This would  include  any of the
         hazardous constituents listed  in  40 CFR Part 261, Appendix VIII.

         Source:    Dave Pagan  (202)  382-4740
         Research: Betty Wilson

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                                                    9481.1987(01)


February 25, 1987


MEMORANDUM

SUBJECT:  Applicability of Vulnerability Guidance

FROM:     Arthur Day, Chief
          Technical Guidance Section

TO:       Doug McCurry
          Residuals Management Branch, Region IV


     During the question and answer period at the recent seminar
on Land Disposal Technology, you asked whether the guidance on
ground-water vulnerability was applicable to the RCRA permitting
standards.  I took you questions to refer to whether a permit
should be denied solely because the facility is located in a
vulnerable setting.  My reply stated that the guidance was not
intended to be a national siting policy, and that it was,  in this
sense, not applicable to the RCRA permitting standards.  I
believe that this response failed to fully convey the purpose of
the guidance.

     The intended use of the guidance by the RCRA permit writer
is stated in Section 1.2 of the guidance (attached).  You should
carefully note that the guidance is applicable to the RCRA
program in at least the following ways:

     •    It provides the permit writer with a standardized
          method for assessing the adequacy of hydrogeologic
          aspects of a Part B application.  An adequate site
          characterization is a permit application requirement,
          as explained in the so-called Phase I Location Guidance
          (note attached copy, see section 2.1).  Adequate site
          characterization is needed for ensuring that ground-
          water monitoring wells are properly located.

     •    Permit writers should consider requiring a contingent
          corrective action plan in permits issued to facilities
          in vulnerable settings, when such facilities are not
          already conducting corrective action.  This is meant to
          reduce the time between plume detection and response
          that is associated with permit modification.  The TOT
          method also provides a trigger for more detailed review
          and evaluation by the permit writer.  The results of
          this review may provide a basis for changes in design
          or operating practices.
        This has been retyped from the original document.

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                               -2-

     •    The vulnerability definition can be used by a Region to
          prioritize site analyses, although the existing
          Facility Management Plan system would take precedent.
          It is also referenced in the guidance on Interim Status
          Impoundment Retrofitting Variances, under the "no
          migration" exemption.

     •    It provides a framework for assessing leachate
          migration potential and impact along each of the three
          pathways of concern  (i.e., water well, discharge to
          surface water, basement seepage).   The last pathway has
          often been overshadowed by concern for water well
          protection.

     Let me elaborate on these points.  First, I recommend that
your permit writers ensure that data on hydraulic conductivity
are collected in accordance with the methods presented in
Appendix A.  This is important, because such information
influences monitor well placement and corrective action plan
design.  These methods are about to also appear in SW-846.  I
also think that permit writers should approach their reviews of
site characterization/monitorability using the flow net methods
presented in Appendix B.  Please note that the TEGD also
recognizes the role of flow net analysis for this purpose.  The
vulnerability guidance recommends  (pages 1-6) that an objective
method that can reduce the number of negotiations with an
applicant's site characterization be tested by installing
additional piezometers  (in order to verify a flow net), this is
an applicant to reach closure on the adequacy of site
characterization.  Finally, the flow net methods will also help
reveal to permit applicants and permit writers whether
significant migration pathways exist beyond the aquifer
contamination route; this can be particularly important where
above-grade or shallow trench landfills are constructed in low-
permeability sediments or rocks, such as in parts of the Atlantic
and Gulf Coastal Plan.

     I recognize that the analytical methods presented in the
Guidance (such as flow nets) may be unfamiliar to many permit
writers.  I do not maintain that permit writers should evaluate
flow nets for all of their projects.  The method might be most
immediately useful where site characterizations are in dispute.
However, I think that you will find that a one-time effort made
by your staff in applying these tools will be productive in the
longer term.  I am pleased to note that one member of the EPA
Science Advisory Board particularly praised Appendix B (flow
nets)  as the best discussion on this common geotechnical tool
that he had seen for hazardous waste facility analysis.

     As I mentioned in response to another question, OSW is
developing additional location standards for TSDs, which we plan
        This has been retyped from the original document.

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                               -3-

to propose by 9/87.  We are considering whether a "degree of
vulnerability" concept should be incorporated into these
standards.  We are also considering incorporating the flow net
verification concept described above as a site characterization
performance requirement.

     I hope that these comments clarify our earlier discussion.
Please contact me at FTS-382-4680 if I can provide further
information.
Attachments

cc:  James Scarbrough
     Bob Tonetti
     Terry Grogan
     Suzanne Rudzinski
     Matt Hale
        This has been retyped from the original document.

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                                                    9481.1987(02)


March  10,  1987


MEMORANDUM

SUBJECT:   International Paper Company, Wiggins, Mississippi

FROM:      Susan Bromm, Acting Director
           Permits and State Programs Division

TO:        Patrick Tobin, Director
           Waste Management Division


     I am  writing in response to your January 29, 1987 memo to
Marcia Williams concerning "alternate concentration limits"
(ACLs) in  a draft HSWA permit for International Paper Co.  (IP),
Wiggins, MS.  The materials you sent were reviewed by Mark Salee,
Janette Hansen, and Bob Kayser of the Land Disposal Permit
Assistance Team (PAT).  The PAT also consulted with the
corrective action work group.  The comments below are based on
the PAT's  recommendations for approaches to corrective action for
continuing releases to ground water at solid waste management
units.  Final Agency regulations and guidance may be different on
some issues.

     The draft HSWA permit contains ground-water cleanup
standards  (concentration limits) for 15 hazardous constituents.
Seven of the concentration limits are based on an ACL-type
demonstration, set at human health criteria levels.  These
concentration limits are consistent with currently available EPA
Verified Reference Doses and proposed recommended maximum
contaminant levels.

     Your  memo highlighted two issues of concern in the draft
permit.  The first issue dealt with the use of human health
criteria versus taste and odor criteria as the basis for the
concentration limit for pentachlorophenol.  This issue has been
analyzed by the Region IV Ground-water Technology and Management
Section.   Their conclusions were summarized in a November  5, 1986
memo from  B. Stallings Howell to Doug McCurry.  Their rationale
for the use of taste and odor thresholds is consistent with the
most recent draft ACL guidance and policy.  However, their
application of the rationale does not appear to be fully
consistent with the ACL guidance and policy.  For example, the
memo states,

     ... ACLs based on human health criteria be adopted for
     phenol and pentachlorophenol at International Paper for the
     following reasons:
        This has Jbeen retyped from the original document.

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      1.   The probability that concentrations above the taste and
          odor threshold will reach a drinking water well is low
          at the  site...

Although not explicitly addressed in the draft ACL policy and
guidance, we believe that concentration limits can be set at
human health criteria  levels that are above taste and odor
thresholds  if the resource value of the ground water is not
degraded.   In this case, it must be shown, to a reasonable degree
of certainty, that attenuation of the contaminant plume between
the point of compliance and the property boundary will result in
contaminant concentrations at the property boundary equal to or
below the taste and odor thresholds.  This type of evaluation
should be performed for the IP site to ensure the protection of
the ground  water  for future use in the area.

     The second issue  identified in your January 29, 1987 memo
concerned the use of the minimum detection limit (MDL)  to
establish background as a ground-water protection standard.  This
is a valid  approach to establishing background.  However, to
ensure that the permittee follows a method acceptable to EPA, the
permit should contain  a specified method to determine the MDLs,
or specify  criteria to follow when choosing a method.  A method
that could  be used is presented in Section 1.3 of the latest
version of  Test Methods for Evaluating Solid Waste. SW-846.
Copies of this document will be available for distribution in
late March.  The permit should include a reference to this SW-846
method or a more appropriate method for establishing MDLs.

     During our review of the draft permit, we identified an area
of concern  in addition to the issues highlighted in your memo to
Marcia Williams.  The comments below focus on Section II.C.,
Corrective  Action Procedures of the permit, specifically, the
concentration limit for creosote, the identification of
additional  Appendix VIII constituents, the lack of any
requirements for the treatment of the contaminated ground water,
and the termination of monitoring at a well upon reaching the
concentration limit at the well.

     The concentration limit for creosote in Section II.C.I. is
defined by  an analysis for phenanthrene and carbazole.   Another
definition  may be more appropriate for two reasons.  First,
carbazole is not listed on Appendix VIII of Part 261 or on the
proposed Appendix IX to Part 264 (51 FR 26632) for ground-water
monitoring, and there is no standard method for analyzing
carbazole in SW-846.  Second, creosote was not included on the
proposed Appendix IX list.  Instead, a list of polynuclear
aromatic hydrocarbons  (PAHs) representative of the major
components  of creosote was included in Appendix IX.  A more
appropriate analysis for creosote would be to analyze for a list
of PAHs.   Such a list should include chrysene, fluoranthene,
        This has been retyped from the original document.

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                               -3-

naphthalene, acenaphthene, phenanthrene, fluorene, and pyrene.
The permit should include concentration limits for all of these
PAHs.

     Section II.C.I.e. of the draft permit lists requirements to
be performed by the permittee if additional Appendix VIII
constituents are identified.  However, the permit lacks a
specific condition requiring the permittee to identify any
additional Appendix VIII constituents.  The draft permit only
requires quarterly monitoring for the 15 hazardous constituents
listed in Section II.C.l.  Assuming that an initial Appendix vm
(or proposed Appendix IX) scan was performed to identify these 15
constituents, we recommend that the permit include explicit
language requiring periodic (i.e., annually or less) monitoring
for a comprehensive list of hazardous constituents from Appendix
VIII (or proposed Appendix IX) reasonably expected to be in or
derived from waste in the solid waste management units.

     The permit does not address any treatment standards or
methods for contaminated ground water that has been pumped from
the. subsurface.  While ground water in itself is not a hazardous
waste, ground water that contains hazardous waste must be handled
as if it were hazardous waste because the contaminants in it are
subject to regulation under Subtitle C.  Once the hazardous waste
is removed from the water, the water is no longer subject to
Subtitle C regulation (see memo from Marcia Williams to you,
dated November 13, 1986).  The permit should, at a minimum,
contain a schedule of compliance for the submittal of plans for
the handling and/or treatment of the contaminated ground water.
(The Agency's authority to stipulate treatment standards as part
of a corrective action permit condition comes from §264.101 and
Sec. 3005(c)(3) of HSWA).  As was stated in the permit, the
permittee should comply with all other State and Federal laws
regarding treatment and discharge of the water.  You should also
be aware that "source control" can be an important aspect of RCRA
corrective action.  You may also want to consider directing the
permittee to study source control options.

     Part II.C.5. of the permit states that:  "Upon reaching the
concentration limits at any monitoring well further monitoring of
that well may be terminated...."  This condition may not be fully
protective of human health and the environment, as contaminants
in the ground water do not necessarily occur in one continuous
plume.   There may actually be several plumes of varying
compositions.  A ground-water sample which indicates allowable
concentrations of contaminants may just represent an area between
two plumes.   I suggest that the permit require some type of less
frequent,  short-term verification monitoring (i.e., three
consecutive years as discussed in §264.100(f))  before monitoring
and/or corrective action is terminated.
        This has been retyped from the original document.

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                               -4-

     If you or your staff have any questions or concerns about
any of the comments or recommendations presented in this memo,
feel free to call Mark Salee of my staff at (FTS) 382-4692.

cc:  Marcia Williams               Doug McCurry, Region IV
     Suzanne Rudzinski             Beverly Spagg, Region IV
     Matt Hale                     Vernon Myers
     Terry Grogan                  Mark Salee
     James Scarbrough, Region IV   Janette Hansen
     Lloyd Guerci
        This has  been  retyped from the original  document.

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y *°
                                                             9431. 1987(0;
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                          WASHINGTON, D.C. 20460
                                    3 1967
                                                 SOLID WASTE AND EMERGENCY OE

    Mr.  Richard J.  Gimello
    Executive Director
    Hazardous Waste Facilities Siting Commission
    State of Mew Jersey
    CN 406,  Trenton,  New Jersey 08625

    Dear Mr. Gimello:

         This is in response to your letter dated April 27,  1987,
    requesting the  Environmental Protection Agency's (EPA)  opinion
    on the applicability of EPA's vulnerable hydrogeology guidance
    criteria to the Millstone,  New Jersey proposed incinerator
    site.

         I must first  point out that the document referred to in
    your letter titled,  "Criteria for Identifying Areas of  Vulner-
    able Hydrogeology  Under RCRA - Statutory Interpretive Guidance"
    (issued  in July,  1986), is simply an Agency guidance.   It
    does not have the  force and effect of law that would require
    full compliance with the stated criteria.  Further, the
    guidance is applicable only to landfills, surface  impoundments,
    and  waste piles (i.e., land-based units) and does  not  apply
    to incinerators.   It is the Agency's opinion that  the potential
    for  ground-water  contamination resulting from an incinerator
    is typically not  a concern due to the manner that  waste is
    contained during  incineration.  It is unclear from your
    letter,  however,  whether other waste management units associated
    with the incinerator will be present.  The vulnerability
    guidance might  be  relevant to the facility if one  of these
    additional units were land-based.

         Your letter  contained questions on the extent of site-
    specific investigations and types of restrictions  or modifica-
    tions to design oc operating practices that would  result in
    response to a finding that the hydrogeology of a site was
    considered "vulnerable".  If a site were found "vulnerable"
    using the Agency  guidance,  further site-specific investigations
    may  be appropriate.   For example,  a site owner or  operator
    may  be requested  to install additional groundwater piezometers
    in order to verify hydrogeologic information provided in the
    permit application or to construct a groundwater flow net for
    the  site in order  to more fully document flow patterns.  These
    investigations  would aid in verifying plans for ground-water
    monitoring.  Similarly, the owner oc operator might be directed

-------
to establish a contingent corrective action plan prior to any
actuaj. release to ground water, in order to more quic'
-------
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY       9431.1937(34)
                      JUN 1919*7
MEMORANDUM


SUBJECT:  Review of Alternate Concentration Limits Proposed
          by Union Carbide Corp., Institute, West Virginia

FKOM:     Bob Kayser, Acting Chief
          Land Disposal Permit Assistance Section (WH-563)

TO:       Robert E. Greaves, Acting Chief
          Waste Management Branch, Region III


     As requested, the Land Disposal Permit Assistance Team (PAT)
has reviewed the ACL proposal submitted by Union Carbide Corp. (UCC!
in September, 1984.  The review was performed by Mark Salee of
the PAT.  The following comments and recommendations have been
developed based upon the PAT's interpretation of the current
draft ACL guidance and policy.

     The ACL Guidance document has gone through the Agency's Red
Border review and is currently being reviewed by the Office of
Management and Budget.  A number of issues were raised during Red
Border review of the ACL Guidance document.  Decisions on these
issues have been made and the document has been revised to reflect
the recent decisions.  An issue that impacts the Union Carbide
ACL proposal pertains to ACLs based on discharge of contaminated
ground water to surface water bodies.  Part of the ACL policy
is that contaminant plumes in usable ground water will not be
allowed to increase in size.  This applies to the areal extent
of the contamination and contaminants at concentrations above
allowable health or environmental exposure levels within the plume.
Contaminants at concentration levels below allowable health or
environmental exposure levels at the point of compliance could
have ACLs established at the allowable health or environmental
exposure levels.

     ACLs based on contaminant discharge into a surface body can
be set at current contaminant concentrations that are above
allowable health or environmental exposure levels at the point
of compliance if the following conditions are met: 1) the facility
property boundary is immediately adjacent to the surface water
body, 2) the contaminant plume must have already reached the
surface water body, and 3) the hazardous constituents are not
causing a statistically significant increase in constituent
concentrations over the background concentrations in the surface
water body.

-------
     The  following discussion assumes that all of the contaminant
plume  is  discharging  into the Kanawha River.  However, from the
information submitted in the proposal, it appears that the contami-
nant plume may be migrating off-site along the eastern property
boundary, near well 6 (Well 6 has shown bis(2-chloroethyl) ethpr
levels between 26 and 59 ppb).  The proposal does not contain
any information on the ownership, land use, or ground-water use
off-site  in this area*  A more detailed investigation into the
extent of migration of the plume in this area, and the land-.and
water uses ta this area is needed to fully evaluate the impacts
from the  ground-water contamination.

     The  ACL* proposed by UCC have been evaluated based on the
above policy.  After a comparison of the highest constituent
concentration^ detected in the monitoring wells, the allowable
health or environmental exposure levels for those constituents,
and the proposed ACLs (see Table I), the PAT concludes that the
proposed  ACLs for the three constituents are unacceptable.  The
proposed  ACLs are greater than the highest detected concentrations
of the constituents in the monitoring wells.  Also, the highest
detected  concentrations of bis(2-chloroethyl) ether and antimony
are greater than the allowable exposure levels for these constituents

     The  concentration limits for these constituents could be set
at the highest concentrations detected in the ground water if the
constituents are not causing a statistically significant increase
in their  concentrations over their background concentrations in
the Kanawha River.  The reviewed proposal does not contain adequate
surface water quality data to make this determination, nor does the
proposal  contain sufficient information to verify that all of the
contaminated ground water is discharging into the Kar.awha River.

     Union Carbide states that,

     "no  information exists within the wastewater treatment plant
      area concerning the piezometric surface in the underlying
      bedrock.  However, the Kanawha River valley is known to be
      a major ground-water discharge area.  Consequently, ground
      water in the bedrock flows vertically upward, enterinq the
      alluvium and ultimately the Kanawha River."

Additional information concerning the horizontal and vertical
migration of t&e contamination is needed to verify this claim.
Additional surface water quality data is also needed to determine
if 'the discharge of contamination into the Kanawha River  is causing
a statistically significant increase Over background concentrations
in the surfaces' water.  Samples should be collected within the
discharge zone* of the contaminant plume during a period in which
stream flow JM near average conditions for the specific season.
These samples should  include water samples taken at mid-depth
and sediment samples.

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                                                    9481.1987(05)
June 17, 1987

MEMORANDUM

SUBJECT:  Ground-Water Monitoring at Regulated Units Near SWMUs
          That Have Impacted Ground-Water

FROM:     Marcia E. Williams, Director
          Office of Solid Waste (WH-562)

          Gene A. Lucero, Director
          Office of Waste Programs Enforcement (WH-527)

TO:       Robert Duprey, Director
          Waste Management Division
          Region VIII


     We are responding to your memorandum of March 19, 1987, on
the above subject.  Your inquiry has raised several good
questions.  Situations in which either the background ground-
water quality at a regulated unit is highly contaminated or the
regulated unit is constructed on an old solid waste management
unit (SWMU) that has affected ground water are common.  Your
memorandum contained a series of questions but did not include
sufficient detail for us to specifically respond to each question
for each site.  Instead, we offer a general approach for each
site, to which you may apply site-specific considerations.

     In the case of the refinery which has an interim status land
treatment area downgradient of an unlined, non-regulated surface
impoundment, you may issue a permit, if the following conditions
are satisfied:

     •    The land treatment unit is in compliance with
          applicable land treatment requirements, including those
          involving unsaturated zone monitoring  (especially soil
          care monitoring);

     •    The unsaturated zone monitoring indicates that there
          has been no migration of hazardous constituents from
          the treatment zone;

     •    Upgradient ground-water monitoring well(s) are not
          affected by the land treatment unit (a showing by soil
          core monitoring that there has been no migration would
          be an important indication that the upgradient well(s)
          are unaffected by the regulated unit); and

     •    Ground-water contamination is being addressed through
          HSWA corrective action provisions (either §3004(u) or
          §3008(h)).
        This has been retyped from the original document.

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                               -2-

     In the case where the regulated unit is an interim status
landfill that is constructed on a SWMU, you may issue a permit,
if the following conditions are satisfied:

     •    Upgradient ground-water monitoring well(s) are not
          affected by the regulated landfill (this will probably
          require use of background wells upgradient of the SWMU,
          because of the apparent stability to determine whether
          contamination is from the landfill or the SWMU);

     •    Downgradient ground-water monitoring wells represent
          the guality of ground water passing the point of
          compliance (this approach assumes for regulatory
          purposes that all releases are from the regulated
          unit); and

     •    Ground-water contamination is being addressed through
          HSWA corrective action provisions and §264.100 (the
          permit could include a reopener clause to modify the
          ground-water standard if corrective action is able to
          clean up the contamination).

     In both of these cases, we would like to emphasize the
importance of dealing with the ground-water contamination problem
at the sites.  Corrective action for these releases is the
critical element of any site strategy.

     For further guidance on the subject of various regulatory
requirements of ground-water monitoring, we would refer you to
the RCRA Ground-Water Monitoring Compliance Order Guidance (Final
- August 1985).

     We appreciate the opportunity to be of assistance to you.
If you have any further questions, please contact Suzanne
Rudzinski at (FTS) 382-4206 or Ken Jennings at (FTS) 475-9874.

cc:  Bruce Weddle
     Joe Carra
     Elaine Stanley
     Amy Svoboda
     John Haggard, Region VIII
     Jean Bolinske, Region VIII
     Debbie Sherer, Region VIII
        This has been retyped from the original document.

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                                                            9481.1987(06)
             RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                               JUNE 87
Groundwater Monitoring For Radionuclides

How are radionuclides, which are present, in mixed low-level  radioactive
waste, monitored in the groundwater at an interim status disposal
facility?

   When the facility is in interim status,  the initial background
   monitoring required by 40 CFR 265.92(b)  and (c) consists  of monitoring
   for drinking water parameters specified in §265.92(b)(l)-(3) Appendix III
   and 265.92(b)(l) references.  One of the parameters specified in Appeixlix
   in is gross Alpha radiation.  Tne regulations require quarterly monitoring
   for these constituents for one year.  Part 265 does not address the
   requirement to monitor the groundwater for radiation beyond the original
   four background measurements.


Source:    Burnell Vincent  (202) 382-4658
Research:  Becky Cuthbertson

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                          WASHINGTON. D.C. 20460
% ,-n'».;X
                                                            9481.1987(07)

                           ENVIRONMENTAL PROTECTION AGENCY
                               || 11  0  .' iC  I          SOLlO WASTE ANO


  MEMORANDUM


  SUBJECT:   Alternate Concentration  Limit (ACL) Policy
            for HSWA Provisions

                                         M
  FROM:      Marcia E. Williams, Director /  Vt,\
            Office of Solid Waste (WH-562)

  TC:        Robert E. Greaves,  Acting Chief
            Waste Management Branch  (3HW30)
            Region III


      This  is  in response to your June 19, 1987,  memorandum
  concerning the applicability of alternate concentration limits
  (ACLs)  to  the surface impoundment  retrofitting provision under
  §  3005{j)(3).  The facility in question is located in West
  Virginia,  which has a ground-water nondegradation policy under a
  delegated  RCRA program (pre-HSWA).

      The  retrofitting exemption in § 3005(j)(3)  for aggressive
  biological treatment surface impoundments requires that the interim
  status  impoundment be in compliance with ground-water monitoring
  requirements  that are generally applicable to permitted facilities.
  For  facilities that have not been  issued a final Part B permit,
  we have interpreted this requirement,  in the July 1986 guidance
  entitled  "Interim Status Surface Impoundments Retrofitting
  Variances,"  to mean compliance with 40 CFR Parts 264 and 270.

      Facility permits must include either a detection, compliance,
  or corrective action monitoring program.   Facilities that have
  detected  leakage of contaminants to the .ground water must propose
  concentration limits, which could  include ACLs,  for each hazardous
  constituent detected in the ground water.  The ACLs, like the
  other concentration limits, are used to determine which ground-
  water monitoring program (i.e., compliance or corrective action)
  should  be  included in the facility permit.  Therefore, ACLs should
  be considered part of the ground-water monitoring requirements
  that are generally applicable to permitted facilities.

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                                -2-


     Section 3005(j)(7)(c) states that if a qualified waste-water
treatment impoundment  is found to be leaking, the impoundment
must retrofit unless EPA determines retrofitting is not necessary
to protect human health and the environment.  One way for an
owner/operator of a  leaking surface impoundment to demonstrate
protection of human health and the environment is to obtain an
ACL.  Generally, ACLs  are applicable and should be reviewed to
determine compliance with § 3005(j)(7)(C).

     For a facility  in a State authorized for RCRA,  the
applicability of ACLs  in EPA's evaluation of an exemption request
under §§ 3005(j)(3) and (j)(7)(C) is governed by State law and
regulations.  As previously stated, the statutory language under
§ 3005(j)(3) states that to qualify for this exemption the facility
must be "in compliance with generally applicable ground-water
monitoring requirements for facilities with permits ..."  The
retrofitting exemption should be reviewed based on West Virginia's
ground-water monitoring permit requirements, which include a
nondegradation standard (i.e., they do not provide for the setting
of ACLs).  As a result, ACLs would not be applicable under the
§§ 3005(j)(3) and (j)(7)(C) provisions for this specific case.

     Should you have any questions on this matter please contact
either Paul Cassidy of the Land Disposal Branch at 8-382-4682 or
Mark Salee of the Technical Assistance Branch at 8-382-4755.

cc: Joseph Carra
    Bruce Weddle
    3ob Tonetti
    Suzanne Rudzinski
    Art Day
    Mar< Salee
    Paul Cassidy

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                                                           9481.1988(01)
            UNITED STATES ENVIRONMCNTAL PROTECTION AGENCY

                        W ASHING 1 • JN D.C  20160
                                                       OFFICE )r

                                              SOLID WASTE AND EMEr C,ENCY RESPONSE
MEMORANDUM

SUBJECT:  New Jersey Zinc Company
                  '' /f LVfK^ v.d'.. '• •••
FROM-     Marc i a E". °wi 11 iams , E.I rector
          Office of Snlid Waste (WH-562)

TO:       Robert E. .'Jreaves, Chi 2f
          Waste Management Brancr   (3HW30)
    This is in response to your- ruBnio dated November  3,  1987.  in
which you requested that the Off 
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oxide is both a solid and a hazardous waste.   However,  as is
discussed below in the context of the Waelz Kiln residue, i: Uew
Jersey Zinc were to change their process so that the only
hazardous waste they were to burn in the kiln was K061, the
residues from that kiln may then not be hazardous waste.

Regulatory Status of Waelz Kiln Residue

    The regulatory status of the kiln residue (and the partially
reclaimed zinc oxide) depends or the type of feed to the kjIn.
As I understand the process currently employed at New Jersey
Zinc. I concur with Sam Rotenberg's assessment that the residue
is a hazardous waste via the derived-from rule, and further,
that the residue has been a hazardous waste since 1980.  Ths
following are the factors upon which this determination is
based.

    o    The kiln residue is not exempt under RCRA Section
         3001(b) (3) (A) (ii) because the K061 feedstock is a v,-iste
         from the primary stee.lmaking industry,  steelmakino
         constitutes an alloying process, which the Agency ) ;.'S
         determined not to bo "processing of ores or minera"'o."
         Waste produced by recl.air.ution of other minerals from
         non-Bevill waste is noc itself a Beviii Waste.

    o    The "indigenous secondary material" discussions that
         have appeared in the Federal Register over the  last 3
         years  (see 50 ER 630-1, January 4, 1985; 50 Ffi  49167,
         November 29, 1985; and 52 £B 16989-91, May 6, 1987) are
         not applicable to this unit because I understand  that
         F006 and F019 are introduced to the furnace —  these
         wastes are certainly not indigenous to a zinc smelting
         process.^/
I/  Your letter also stated that K062  is added to the  furnace.
We would not view K062 as  indigenous to zinc smelting  either,
but as I understand it, what  is actually introduced to the
furnace is sludge from lime stabilization  from waste pickle
liquor that is exempt from the derived-from rule under Section
261.3(c)(2)(ii) .  Therefore,  introducing this exempt sludge  into
the furnace does not affect the regulatory status of the  kiln
residue.

-------
    You should note that New Jersey Zinc might be able to change
the status of the kiln dust by ceasing to add any hazardous
waste but K061 to the kiln.  Under the May 6, 1987 proposal ;52
FR 16990), K061 would be considered indigenous to a zinc
smelting operation because K051 ir generated in furnaces use''; -in
primary steel production (i.e.. totn are forms of metal smelt-
ing).  If this rule is finalized as proposed, then the derived-
from rula will no longer apply to residue from smelting of
K061.  Of course, if New Jersey Line continues to add F006 and
E'0l9 to the kiln, the kiln residue would continue to be hazard-
ous no matter what is decided concerning K061.  In fact, as a
final point, the introduction of F006 and F019 to the kiln calls
into question the kiln's status ?? a reclamation device.  (li-is
50 FR 630-1, January 4, 1985.)  That is, the F006 and F019
wastewater treatment sludges are not ordinarily associated with
zinc smelting, and these wastes may contain Appendix VIII
constituents different than normal zinc smelter feed materials.
(Id.)  The kiln, as it is currently operated, may be more
properly classified as a hazardous waste incinerator as opposed
to a reclamation furnace.

    Regulating Exempted Waste Undor RCRA corrective Action

    Your second set of questions concerned the applicability of
RCRA Section 3004(u) corrective action authority to releases
from exempt units.  The units you asked about are:

    1.   Bevill exempt;
    2.   Pre-RCRA inactive units, and
    3.   AMC opinion exemptions.

     (1) The question about units containing Bevill wastes wc..:
    settled recently when EPA  issued the second HSWA Codificc.-
    tion Rule, signed by the Administrator on November  16,
    1987.  EPA determined that the RCRA Section 3001(b)(3)
    exemptions (i.e. . those established for  "Bevill wastes")  do
    not extend to Section 3004(u).  This decision  is explained
    fully in the preamble of the second Codification Rule.   (See
    FR 45790, December 3, 1987.)

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    (2.)  Releases from pre-RCRA inactive units are certainiy
    within the authority of RCRA Section 3004(u).  40 CFR
    Section 264.101 provides that an owner or operator of a
    facility seeking a RCRA permit must institute correction
    action for releases from units at the facility,
    "...regardless of the time at which waste was placed in such
    unit."

    (3)  Releases from units excluded from RCRA jurisdiction
    under the ANC opinion, should there be such exclusions,
    vould be handled the same as other product or process
    releases.  That is, the unit holding the product is not a
    SWMU, but areas contaminated by "routine and systematic
    discharges" from the unit are SWMUs.

    if you have further questions in these areas, contact
Michael Petruska of my staff at FTS 475-9868.

Attachment

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               RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY         9481.1988(02)

                                 APRIL 88
7.  Ground-Water Monitoring—Assessment Monitoring/Corrective Action
   at Closed Facilities

   An interim status landfill must comply with the requirements in Part 265, Subpart F,
   Ground-Water Monitoring, during the post-closure care period  (see 40 CFR Section
   265.90(b)).  Section 265.93(d)(7)(i) states that  the owner or operator conducting an
   assessment monitoring program must determine the nature and extent of contamination
   in the uppermost aquifer below the facility "on a quarterly basis until final closure of the
   facility (emphasis added).. .if such a program was implemented prior to final closure of
   the facility." Section 265.93(d)(7)(ii) states that the owner or operator may cease to make
   regular analyses of the ground-water  quality if the assessment plan is implemented
   during the post-closure care period. An interim status landfill stopped receiving waste
   before July 26,1982, and certified closure closed prior to January 26,1983. The facility is
   now performing post-closure care activities. The facility recently "triggered into" an
   assessment monitoring mode. With what ground-water monitoring requirements must
   he comply? What authority may be used to institute corrective measures?

     After the owner/opera tor implements the specific assessment plan detailed in Section
     265.93(d)(l)-(5) no further monitoring would be required.  According to EPA, if the
     confirmed detection of hazardous constituents in the ground-water first occurs during
     the post-closure care period, "the sources of contamination are expected to be relatively
     stable [as no additional wastes are currently being placed in the unit] such that repeated
     assessments would only confirm the initial determination of contamination. For this
     reason only one ground-water quality assessment which demonstrates contamination
     is required during the post-closure care period" (see May 19,1980 Federal Register. 45
     FR 33195). The post-closure monitoring requirements referred to in Section 265.90(c)
     would therefore include only any detection monitoring and this one-time assessment
    of the ground-water quality. A facility who stopped receiving waste on or before July
    26,1982, and who closed on or before January 26,1983, would not be required to obtain
    a post-closure permit (see December 1,1987 Federal Register. 52 FR 45798). This being
    the case, EPA could not require additional ground-water monitoring under these
    regulations alone.

    EPA may compel the owner or operator of such a facility to perform ground-water (or
    other media) monitoring via a RCRA Section 3013 order. A Section 3013 order may be
    issued when the Administrator gains knowledge of the presence of a hazardous waste
    at a facility, or knowledge of the release of any waste from a facility. The corrective
    action authority applicable to interim status facilities (RCRA Section 300800) may also
    be applied if any remedial activities are desired. This order may be issued when the
    Administrator has information that there has been a release of hazardous waste into the
    environment from an interim status facility.

   Source:       Kirsten Engle            (202) 382-7706
                Vernon Myers           (202) 382-4685
   Research:     Deborah McKie
                AndyCTHare

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                                                   9481.1988(03)
               RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                APRIL 88


 8. Ground-Water Monitoring—Compliance Period /Post-Closure Care Period

    The "compliance period" is defined in 40 CFR Section 264.96(a) as "the number of years
    equal to the active life of the waste management area (including any waste manage-
    ment activity prior to permitting, and the closure period)." The compliance period
    begins when a compliance monitoring program is initiated (40 CFR Section 264.96(b)).
    Section 270.1 (c) states that the regulations in Part 264, Subpart F apply during the post-
    closure care period if the land disposal facility received wastes after July 26,1982, or
    certified closure after January 26,1983 (see December 1,1987 Federal Register. 52 FR
    45798). The post-closure care period "must begin after completion of closure of the unit
    and continue for 30 years after that date" (emphasis added). (See 40 CFR Section
    264.117(a).) If the compliance period ends before the post-closure care period ends, do
    the requirements to perform ground-water monitoring also cease at the facility?

     No. The July 26,1982 Federal Register. (47 FR 32287) discusses the concept behind
     the establishment of the compliance period.  EPA views the active life of a land unit
     as the "time period during which the release of leachate to the [ground-water] is
     likely to be greatest."  Therefore the timerrame  for the ground-water compliance
     period must be at least equal to the active life of the facility to allow sufficient time
     to track the plume of contamination.



              Compliance Period/Post-Closure Care Period
                 COMPLIANCE PERIOD
                ACTIVE LIFE
                     CLOSURE
         POST-CLOSURE CARE
   BEGIN
HAZARDOUS
  WASTE
 ACTIVITIES
COMPLIANCE PERIOD
             BEGIN
         COMPLIANCE
         MONITORING
                  End
                Hazardoua
                  Wast*
                 Adivitna
  Begin
Poal-Ctosum    End
   Care    CompTianc*
           Period;
           Begin
           Cyda
           Again
          END
POST-CLOSURE
         CARE

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            RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                              APRIL 88
  The July 26,1982 Federal Register (47 FR 32294) also states that when the compliance
  period ends before the dose of the post-closure care period, a detection monitoring
  program must be reinstated.  Section 264.90(c)(2) infers that a detection monitoring
  program (Section 264.98) should be conducted during the post-closure care period
  when the facility is not implementing a compliance or corrective action program.
  Once the detection monitoring program is reinstated, the facility could conceivably
  proceed to a compliance or corrective action program. If a statistically significant
  increase over background values for the parameters and constituents of concern is
  identified, a compliance program or a corrective program must be initiated (see 40
  CFR Section 264.98(h)). If, after the compliance period ends, there are still "hazard-
  ous constituents under Section 264.93.. .at the compliance point under Section 264.93,
  the owner or operator must institute a compliance monitoring program under Section
  264.99" (Section 264.91 (a)(D). Once the post-closure compliance monitoring program
  recommences, the compliance period "dock" would begin anew. (See 40 CFR Section
  264.960)).)

Source:       Kirsten Engle      (202) 382-7706
             Vernon Myers     (202) 382-4685
Research:     Deborah McKie
             Steve Campbell

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                                                                    9481.1991(01)
                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             WASHINGTON. D.C. 20460
                                                                  OFFICE 0»
                                                       SOLID WASTE ANO EMERGENCY RESPONSE
                                October 16,1991

Glen D. Johnson
Commonwealth of Pennsylvania
Dept of Environmental Resources
P.O. 130x2063
Harrisburg, Pennsylvania  17105-2063

Dear Mr. Johnson,

      Four questions were raised in your letter of August 21.  Hopefully our responses
will be satisfactory. If you still have any concerns please feel free to contact us again.

      First, concerning the "Analysis of Retesting Procedures" paper, we have re-
examined our simulation code used to generate the power results given in that paper and
have examined the code you provided as well It seems that the discrepancy between
our results can be traced to the method by which you generate future values for
comparison to the simulated prediction limits.

      The  theory behind prediction intervals assumes that not only are the background
measurements drawn at random from a (Normal) distribution, but that the future values
to be compared against the prediction limits are also randomly drawn from the same
population. That is, two sources of variability are built into the equation used to
calibrate the width of a prediction interval: variability in the background measurements
(accounted  for by the quantity 1M^ and by 1/n under the root symbol) and variability in
the future values (accounted for by adding 1 to 1/n under the root symbol).

      In your SAS code,  the future values for a given effect size are always fixed at the
expected mean level of the downgradient well  No variation is built into these numbers;
consequently our power results differ.  We have made an additional run of our
simulations (based again on 10,000 iterations) to give you approximate power levels in
the table below for each of the effect sizes you used. These results make sense from the
standpoint that if the alternative mean is dose to the background mean, adding variation'
to the future values should increase how often these numbers fall above the prediction
limit and hence increase the power over what you derived. The reverse situation should
he true when the background and alternative means are far apart, as seen in the table,
for then the alternative mean wfll generally be above the prediction limit, and variability
in the future values will tend to lower the power somewhat
                                                                      Printtd on Rtcyctfd Ptptr

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EFFECT   YOUR POWER    OUR POWER

0.0          0.0000             0.0100
0.5          0.0008             0.02S7
1.0          0.0051             0.0613
1.5          0.0301             0.1189
2.0          0.1116             02073
15          02698             03319
3.0          0.4756             0.4802
3.5          0.6946             0.6256
4.0          0.8473             0.7570
4.5          0.9386             0.8568
5.0          0.9801             0.9223
      With regard to the article by Robert Gibbons in Ground Water (Vol. 29, No. 4,
1991), our basic reaction to the method Gibbons proposes for monitoring large networks
of downgradient wells is not wholly unfavorable. There do seem to be advantages to
employing some type of retesting strategy in order to verify results from wells that show
possible contamination.  EPA has in fact already approved a proposal from the State of
California that adopts a retesting strategy. However, the specific strategy put forward by
Gibbons, that is, an initial tolerance interval followed by a prediction interval on any
resampled wells, may or may not be the best retesting strategy.  The approved California
proposal, for instance, consists only of prediction intervals with double resampling of
downgradient wells that initially exceed the prediction limit  Both resamples must be
immediately collected from the monitoring well, and both must pass the retest to verify
that the initial failure was a false positive.

      In addition, Gibbons' article raises a few questions concerning the statistical logic
used. First, Gibbons' basic example hypothesizes a network of 20 downgradient wells,
each being monitored quarterly for five constituents. As Gibbons notes, this results in
100 sample measurements per quarter that must be tested statistically. It is not true,
however, that all 100 values would be compared to single tolerance (or prediction) limit
calculated from the background data. Rather, each constituent would have to be tested
separately, leading to five separate tolerance (or prediction) limits each used to test 20
measurements.  Clearly, it would not be the case that all five constituents would have
similar distributions of concentration values. This point is not crucial to Gibbons case,
but it is worth emphasizing that his hypothetical framework should actually lead to more
conservative prediction limits than he describes.

      Another point is that Gibbons' discussion of Type I error rates when comparing
the performance of tolerance and prediction limits without resampling, particularly in

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regard to Figure 1 on p. 568, is somewhat misleading. Gibbons argues for instance that
"the 95% prediction limit for the next 1000 measurements achieves its nominal error rate
of 5%.  However, the false positive rate for the 95% confidence 95% coverage tolerance
limit is over 70%. Even 99% coverage produces a false positive rate of approximately
17%."  What Gibbons means by false positive rate here is not the traditional Type I
error probability; rather, it represents the frequency with which any of the 100 sample
measurements falls above the prediction or tolerance limit.

      For prediction limits these two definitions of error are the same, since the
prediction limit is designed to contain all of the 100 samples. For  tolerance limits,
however, Gibbons' definition of the false positive rate is not correct, because a tolerance
limit is designed to "miss" a certain fraction of the tested measurements. Under 95%
coverage, a tolerance limit is expected to miss approximately 5 out of every 100 new
samples. The tolerance limit only fails in the Type I error sense, if the actual coverage
of the limit is less than expected amount (e.g., 10 out of 100 samples fall above the limit
instead of the expected 5 or less).  It is true enough that some measurements in a large
enough sample will fall above the tolerance limit; however, this does not indicate a
failure of the tolerance limit to do its job.  If 100 new measurements were collected from
a single downgradient well, and at least 95  of those values fell below the tolerance limit,
there would be no need to designate the well as possibly contaminated.

      Granting the above comments, Gibbons does recognize a basic problem in
applying a tolerance limit approach to a set of measurements taken one per
downgradient well That is, measurements which fall above the tolerance limit may
indeed indicate contamination at particular wells, because distinct wells may have
different distributions of the constituent being tested. If data from many downgradient
wells are pooled together, the tolerance limit approach  assumes that each well has the
same distribution of sample values and that values fall above the tolerance limit only
because a large enough sample from any (normal) distribution will have a few extreme
measurements.  This assumption may not be true if just one or two downgradient wells
have been contaminated, so that some of the extreme values are the result of
contamination rather than just random variation in a large set of measurements.  In
other words, by allowing a certain fraction of the values to be above the tolerance limit
(typically 1% or 5% of the concentrations), actual contamination at a very few wells
could be missed.

      One solution to this problem is as Gibbons suggests to retest each well for which
the sample measurement falls above the tolerance limit. A more practical alternative
not discussed in the article relates to the likely nature of contaminated wells for many
constituents. Experience with monitoring data suggests that an actual spill or leak from
a monitored facility results in  concentration levels elevated typically by one or more
factors, of magnitude above background levels. Samples from wells contaminated in this
way should be much greater in concentration than even extreme values from
uncontaminated wells. Consequently, it may be easy to identify contaminated wells by

-------
comparing the relative magnitudes of those samples which fall above the tolerance limit,
even in the absence of any retesting strategy.

      Your inclination concerning ground-water sample independence with respect to
quarterly measurements is consistent with our experience in evaluating ground-water
monitoring data. Keep in mind, however, that the 40 CFR Part 264, Subpart F
regulations require at least semiannual sampling, which may improve the likelihood of
sample independence in^slow moving ground water. Further, well purging procedures
that are implemented prior to sample collection also improve sample independence.

      EPA is in the process of developing software for assisting Regional and State
personnel in evaluating ground-water monitoring data. The system (GRTFS-ground-
water research information system) is an enhancement to an EPA Region Vn data base
that uses Lotus files for data input and will perform all of the Subpart F statistical
procedures. We plan to provide training on the system and the included statistical
procedures throughout the late summer and fall of 1992 (Philadelphia or a nearby
metropolitan area will be a host training site).

      ][ hope that these comments have been useful.  Please contact me at (202) 260-
3240 if I can be of further assistance.

                                                       Sincerely,	

                                                      ~d(m/*>
                                                       James R. Brown

cc.    Denise Keehner
      Vernon Myers

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Containers (Subpart I)
                                    ATKl/1112/20sm

-------
9482 - USE AND
MANAGEMENT OF
CONTAINERS
Parts 264 & 265 Subpart I
                   ATKl/l 104/41 tp

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               UMTfct) i' * TEi CNVlRQNMENTAL PROIfc-  . , A'  c.w.

                                                              9482.1985(C
                            NOV 2 6 1985
 Honorable  Bill  Alexander
 Member,  United  States
   House  of  representatives
 Gathinas Building,  Room 211-A
 615  South  Main
 Jonesboro,  Arkansas  72401

 Dear Mr. Alexander:

     This  is  in response  to your  letter of  October  21,  1965,
 requesting  assistance  for your  constituent, Mr.  Jack  Rendricka,
 President of  Crown  Rotational Molded  Products  Inc., regarding the
 development of  a container for  the  safe and economical  storage,
 transport,  and  disposal of hazardous  waste.

     While  EPA  does not directly  regulate the manufacturing of
 containers, we  do regulate the  storage of hazardous waste in con-
 tainers  (40 CPR, Part  264, Subpart  I).  A copy of these standards
 is enclosed.  These performance standards reguire that hazardous
 waste not be  stored in containers that leak or are  incompatible
 with the wastes.  Anyone  who stores hazardous waste in containers
 must obtain a RCPA permit and comply  with these  standards.

     In many  cases hazardous wastes are stored in containers made
 to meet  Department of  Transportation  (DOT)  standards.  For waste
 handling and  safety reasons, it is  freauently cost effective for
 a Generator to  store his  hazardous waste in the  same  container
 in which it will be transported and,  often, ultimately disposed.
 As a result, most containers storino  hazardous waste  are ulti-
 rately slated for transfer to a disposal or treatment facility
 (e.Q., landfill, incinerator).  EPA has concluded that containers
 that neet HOT standards for the transportation of containerized
materials (49 CFP, Part 173) are  also acceptable from an environ-
me'ntal protection perspective for the storane of hazardous waste.

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      If  Mr.  Hendricks  is  interested  in  pursuing  EPA  assistance
 with  his research  project,  his  first  step  in  the process of
 seeking  a grant  is to  submit  an  application for  Federal assistance.
 Mr. Hendricks can  obtain  the  necessary  forms  from:

                     Grants  Operations Branch  (PM-216)
                     Grants  Administration  Division
                     Environmental  Protection  Aqency
                     401 M Street,  S.w.
                     Washington,  D.C.    20460

      However, it may be to  Mr.  Hendricks benefit to  discuss  the
 technical  aspects  of his research  project  with EPA's Office  of
 Research and Development prior  to- submitting  any paperwork to the
 Grants Administration  Division.  rSuch a discussion would ensure
 that  the salient technical  points  are addressed  In Mr. Hendrick's
 application  and roicht  also  give  him an  indication of the merits of
 his proposal. If  Mr.  Hendricks  is interested, he should contact:

                     Mr. Don Carey  (RD-675)
                     Office  of Exploratory  Research
                     Office  of Research  and Development
                     Environmental  Protection  Agency
                     401 M Street,  S.W.
                     Washington,  D.C.  20460
                     Phone:' 202/382-7899

 Since regulations  addressing container  design specification are
primarily  within the realm  of DOT, Mr.  Hendricks may also want to
 contact  DOT  regarding  his proposal for  hazardous waste containers.
 If you need  further  information  on this topic from EPA, please call
Mr. William  Kline  in the Office  of Solid Waste at (202) 382-7917.

                                   Sincerely,
                                  J. V7inston Porter
                                  Assistant Administrator
Fnclcsures


   :  Don Carey

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              UNITED   'TES ENVIRONMENTAL PROTECTION /   NCY      9432.1986i011
 Mr. Joseph J.  Tonahue,  President
 Connelly Containers,  Inc.
 Gala-  Cynwyd,  Pennsylvania  150C4

 Dear Mr. Donabuci

     At the request of  Mr. Irvin A. Lavine of Paeon, FenwicV and
 Lawrence law office*, I an writing t.o you to explain the role of
 the Environmental Protection Agency (EPA) with regard to approving
 containers for the storage of hazardous waste, particularly with
 respect to t.he design of such.  EPA promulgated interim status
 and permitting standards for the storage of hazardous waste in
 containers on May 19, I960, and January 12, 1981, respectively.
 A copy of these standards is enclosed.

     These standards are simply performance ctandards that
 require containers used to store hazardous vastt^ana to be com-
 patible with the hazardous waste stored.  In the process of
 developing these regulations, EPA considered promulgating design
 standards for containers.  Since irost containers storing hazardous
waste  are ultimately slated for transfer to a disposal or treat-
 ment facility  (e.g., landfill, incinerator), however, it is post
 cost effective for the generator to store his hazardous waste in
 the same container in which it will be transported.
                                   ^
     EPA has concluded that containers that neet Depart.rent of
Transportation (COT) standards for the transportation of contain-
erized materials (49  C7R, Part 173) are also acceptable from an
environmental protection perspective.

     As part of the permit application, the owner or operator
must indicate1 that the container he plans to use will be com-
patible with the waste to be stored, as required in $264.172.
 If compliance with this and the other Subtitle C requirements is
demonstrated, EPA can then approve the permit to store hazardous
waste  in containers.

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      To confirr. the point trade Jn your letter, a manufacturer of
 container* cannot, apply for a storace permit in lieu of the actual
 owner or operator of the facility seeking the permit.  it vcule*
 however,  be advisable that the owner or operator obtain confirma-
 tion from the container manufacturer that the container, beina
 purchased will be compatible with the wa.t, to be store*.     9

      I  hope that  we have satisfactorily addres.ed your concern

                                                           "
                                   Sincerely,
                                    I
                                  John P.  Lehman
                                  Director
                                  Waste Management and
                                    Econorrics Division
Encloaures

-------