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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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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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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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
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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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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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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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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.
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
-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
-------
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
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-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
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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.
-------
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
-------
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.
-------
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
-------
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
-------
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
-------
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.
-------
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
-------
Closure And Post-Closure
(Subpart G)
ATKl/1112/17sm
-------
9476 - CLOSURE AND
POST-CLOSURE
Parts 264 & 265 Subpart G
ATKl/l 104/37 kp
-------
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
-------
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
-------
.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
-------
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
-------
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.
-------
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-
-------
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
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-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.
-------
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
-------
: 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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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."
-------
"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
-------
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.
-------
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
-------
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.
-------
-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
-------
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
-------
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
-------
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.
-------
-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
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- 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.
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-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
-------
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
-------
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
-------
9480 - TSDF
TECHNICAL
REQUIREMENTS
Parts 264 & 265
ATKl/l 104/39 tcp
-------
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
-------
• 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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
Ground Water Protection Standards
(Subpart F)
ATKl/1112/19sm
-------
9481-
GROUND-WATER
PROTECTION
STANDARDS
Parts 264 & 265 Subpart F
ATKl/l 104/40 kp
-------
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.
-------
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'
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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.
-------
-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
-------
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
-------
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.
-------
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.
-------
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
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