United States       Solid Waste and     EPA/530-SW-91-062I
Environmental Protection Emergency Response      August 1991
Agency          (OS-343)

RCRA Permit Policy

Compendium
Volume 9
9490.1980-9521.1990

Standards for Managing Specific Hazardous
Wastes (Part 266)
• Recyclable Materials
• Waste Burned for Energy Recovery
Permitting Policies
• Priorities
• Corrective Action
• Special Permitting
• Compliance & Enforcement
• Public Participation
Permitting Procedures (Parts 124 & 270)
• General
                                 ATI.' i n KMT «,>..:

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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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Standards For Managing Specific
Hazardous Wastes And Specific
Types Of Facilities (Part 266)
                                ATKl/1112/28sm

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9490 - STANDARDS FOR
MANAGING SPECIFIC
HAZARDOUS WASTES AND
SPECIFIC TYPES OF FACILITIES
Part 266
                         ATKl/lUWttkp

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9493 - RECYCLABLE MATERIALS
USED IN A MANNER
CONSTITUTING DISPOSAL
Part 266 Subpart C
                         ATKl/l 10M49 kp

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY


                                                     9493.00-1A
Vr. Pill Poss
Commissioner
Alaska Perartment of
  Fnvironmental Conservation
Pouch "0"
Juneau , Alaska  99811

Pear Mr, Ross:

     Thank you for your correspondence of May 7, 1985.  As I
understand the matter, you are concerned that the dust suppression
regulations Alaska has promulgated may conflict with the Hazardous
and Solid Waste Amendments (HSVJA) of 1984.  i do not think there
is a conflict.  The HSV'A prohibits the use of hazardous waste as
a dust suppressant.  EPA's reaulations in 40 CFP Part 261 define
what materials are solid and hazardous wastes.  Alaska is free to
impose its own regulations on dust suppressants that are not
hazardous wastes,  with respect  to used oil, probably the most
common dust suppressant, the HSWA prohibition only applies to
those used oils that are themselves hazardous waste or mixed with
other hazardous waste identified or listed under the current
Part 261 definition.

     In response to the four specific Questions you asked:

     (1)  Federal law does not presently set a maximum lead level
for used oils , waste oils . or any other dust suppressant.  As
described above, the HSWA prohibits the use of. hazardous waste as
a dust suppressant.  One way that a solid waste may be identified
as a hazardous waste is if it exhibits the characteristic of FP
toxuity. defined by $2*1.24 (and Appendix II of Part 261).  When
the extract from a solid waste,  obtained throuah the FP  toxicity
procedure* contains lead at a concentration greater than 5 ppm,
it then is a hazardous waste and therefore is subject to the HSWA
prohibition.  Used oil, because  of its often viscous nature, does
not always exhibit FP toxicity even if relatively  hiah concentra-
tions of lead are present.

     (2)  If a guestion arises as to whether a person is violating
the HSWA prohibition, analyzing  the extract fron a sample of  the
road oil using the FP toxicity procedure would be  necessary  to
determine compliance with federal law.  However, neither EPA
regulations nor the HSWA reouire a State  to set up an analysis
program for road oilers.

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     (3)  EPA need not issue any formal rules to enact the HSWA
prohibition? it became effective when the President signed the
HSWA (November 8, 1984).  EPA will, in the very near future,
issue rules codifying and explaining certain HSWA requirements ,
including the dust suppressant ban.

     (4)  with respect to "guidance and expertise ," fPA is plan-
ning to regulate used oil management under special standards to
be proposed later this year.

     Later this year, FPA will also propose to list all used oils
as hazardous waste.  A final listing determination will not be
promulgated until the fall of 1986.  If you need more information
on the status of the proposals, contact David Sussman (202-382-7927)
of my office.  FPA Peaion X can. of course assist you if necessary
in interpreting current EPA regulations.

                                  Sincerely ,
                                  John H. Skinner
                                  Mrector
                                  Office of Solid waste (WH-562)
cc:  Lisa Friedman, Associate General Counsel, EPA
     Kenneth Feigner « EPA Region X

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                  5TATE5 ENVIRONMENTAL PROTECTION

                        WASHINGTON. D.C. 2046C
                                       /•^ O C. . '
                                                     9493.00-1A
                                                     Attachment
                            MAR 2 0 1935
MEMORANDUM
SUBJECT:  Interpretation of Section 3004(1), the
          Dust Suppression Prohibition
FROM:     John H. Skinner, Director
          Office of Solid Waste (WH-562)
TO:       Kenneth D. Feigner, Chief
          Waste Management Branch (M/S 530)
          Region X
     The
mandated
following is OSW's position
by Section 3004(1) of PCPA,
on
as
the dust
amended.
suppression ban
     (1}  Used oil (or any other material) that has been mixed
with a listed hazardous waste, includinq wastes generated by
small quantity generators, must not be used as a dust suppressant.
However, the mere presence of hazardous constituents (for example,
trichloroethylene or toluene) is not sufficient proof that the
material has been mixed with hazardous waste.  EPA bears the
burden of proof to show that mixing has occurred.1

     (2)  Used oil that exhibits a characteristic (other than
iqnitability) must not be used as a dust suppressant.2  You should
know that althouah OGC feels this is a strono position, it is not
a direct reading of Section 3004(1) (which speaks of "mixtures").
In the soon-to-be-proposed Federal Register notice codifying parts
of the Hazardous and Solid Waste Amendments of 198* , EPA will
propose the interpretation that the prohibition applies to all
hazardous waste (except those hazardous only due to ignitability) ,
not just mixtures.
  As a point of information, we have proposed  [50 FP 1691-1692,
  January 11, 19R5] that for used oil used as_  fuel , a total
  chlorine content exceeding 4000 ppm is presumptive evidence of
  mixing with hazardous waste.

  This does not necessarily conflict with Alaska's 300 ppm lead
  limit.  Due to the properties of used oil, a given quantity of
  used oil may be high in lead, and yet not exhibit EP toxicity.

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     (3)  The prohibition does not apply to mixtures of charac-
teristic hazardous waste and non-hazardous materials where the
resultant mixture no longer exhibits a characteristic.  This
interpretation is based on the following logic:

     0    Section 3004 applies only to .hazardous waste; and

     0    Paragraphs (c) and (d) of 40 CFP $261.3 provide that
          a mixture of characteristic waste and other material
          is hazardous waste only if the resultant mixture
          exhibits a characteristic.

     Finally, you should be aware that OSW is working on a proposal
to list used oil as a hazardous waste.  That rulemaking , following
the logic that the prohibition is meant to apply to all hazardous
wastes, would also propose to prohibit the use of used oil as a
dust suppressant.  When the EPA rule is promulgated, any rule by
Alaska allowing up to 300 ppm lead in used oil used as road oil
would be superseded by the Federal prohibition.  However, Alaska
could still regulate other "waste oils" besides used oil using a
lead limit.
cc:  Mark Greenwood, OGC
     Regional Hazardous Waste Division
       Directors, Regions I-X

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        U.S.   ENVIRONMENTAL  PROTECTION  AGENCY

                              REGION  X                 9493.00-1A
                          1300 SIXTH  A V § N U               A"L CciCrifflGnt

                     s 8 ATTL e, WASHINGTON  * a i o i
                                     -3  1 1985
     M/S 530

MEMORANDUM
SUBJECT:  Interpretation of .-Waste 01] Regulations
FROM:     Kenneth  ."    gner7~Ch
          Waste Management Branch (M/S 533)

TO:       John H. Skinner, Director
          Office of Solid Waste (WH-562)
     Currently, the Alaska Department of Environmental Conservation 1s
proposing to amend their regulations to prohibit the use of oil for
surface oiling or as a dust suppressant 1f that oil contains lead 1n     •
concentrations of 300ppro by weight or greater.

     The state has requested EPA comments, particularly regarding whether
their proposal Is consistent with existing or emerging Federal
requirements, Including the new statuatory provision reguardlng dust
suppressants. A copy of their letter and proposal Is attached.

Section 3004 (1), the ban on dust suppression states:
          "The use of waste or used oil or other material which is
     contaminated or mixed with any other hazardous waste Identified or
     listed under Section 3001 (other than waste Identified solely on
     1gn1tabil1ty), for dust suppression or road treatment Is prohibited".

     We are interpreting this to mean that the 40 CFR 26>.3 mixture rule
does not apply in this case. That Is, a waste oil which has been mixed
with a characteristic wasters prohibited for use as a dust suppressant
regardless of whether or not the resultant mixture exhibits a"
cliaractensitlc.  Also, the us'e of a waste oil as a dust suppressant is
prohibited if It exhibits a characteristic but has not been mixed with
other hazardous waste.  And furthermore, it is prohibited if  1t contains
listed hazardous waste constituents (e.g., chlorinated solvents), unless
the owner/operator can UeniuiistrTfe" that the source of the constituents did
not come from hazardous waste.

     We are requesting OSW's position on the  application of this  provision
and ask for your response as soon as possible given  that the  comment
period on the state's proposal closes March 1.

Attachment

ccMichael Petruska  (WH565A)
    Keith Kelton, AOEC

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DEPT. OF ENVIRONMENTAL CONSERVATION        T.>.0»o~.:/907>
                     -      -Sc
    OFFICE OF THE COMMISSIONER'                         9493.00-1A
    POUCH 0,  JUNEAU,  ALASKA  99811                     Attachment

                     -~     ~F~r
                            -^     May 7, 1985
    Mr.  John H.  Skinner, Director
    Office of Solid Waste . —- -
    WH-562, Room M2804    — -- —
    U.S.  Environmental Protection Agency
    401  M Street, S.W.
    Washington,  D.C.  20460

    Dear Mr. Skinner:

    As you know, the new road oiling regulations of the Alaska
    Department of Environmental  Conservation (ADEC) became
    effective on May 2, 1985.   These regulations allow waste oil
    to be used as a dust suppressant if it contains lead concen-
    trations less than 300 ppm.   The State does not require the
    E: ^-.oxicity method of testing in the required waste oil
    c  -a.'.jsis,.

    In your March 20 memorandum to EPA, Region X, you stated
    several propositions which" left us uncertain about how to
    proceed with the implementation of our regulations.  You
    referenced the 1984 amendments to the Resource Conservation
    and  Recovery Act as the basis for your positions.  However,
    ycni.>weht on to say that this did not mean ADEC's new regula-
    tions were inconsistent with the amendments.  Hence, I am
    having trouble interpreting your memorandum.

    Since we received your memo on April 24, EPA has given ADEC
    differing and conflicting verbal positions on the applica-
    bility of the 1984 amendments to Alaska's road ciling permit
    program and the methods of'analysis for deierrdning lead
    content in waste oil.  J. would like clarification on several
    issues:


          Does federal law prohibit the use of  waste oil
          on roads as  a  dust  suppressant if it contains
          lead levels equal to or greater than 5 ppm?

          If so, is it mandatory that the State use the
          EP toxicity  testing method to determine  if  a
          liquid road  oil  meets the federal 5  ppm lead
          standard?

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      Also, if the 1984 Amendments do indeed prohibit
      the use of  waste oil with lead concentrations
      of  greater  than  5  ppm,  does  EPA  need  to
      promulgate  formal  rulemaking  in  order  to
      implement this prohibition?

      If waste oil cannot be  used on the roads as a
      dust  suppressant and the majority  of states
      allow road oiling,  what guidance  and  expertise
      will EPA offer  the  States to manage  this  new
      potential hazardous waste management problem?

I would appreciate receiving your response to these questions
as soon as possible.   I want to resolve these differences
quickly so that we can determine if the State or road oilers
are potentially liable under federal law  for damages result-
ing from road oiling operations in the State .conducted after
this date.  Please contact me if you would like to discuss
this matter further.
                               Sincerely,
                               Bill Ross
                               Commissioner
BR:PO:mt
cc:  Lisa Friedman, Associate General Counsel, EPA,
     Kenneth Feigner, EPA, Region X
     Ronald Kreizenbeck, EPA, Alaska Operations Office

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON. O.C. 20460             „  Q ^     . ,
                                                       y ^ J 3 • U U ~ J_ /A
                                 , «  .,„-                  Attachment
                             JUL  12 ;33b
                                               SOLID WASTE AIMO EMERGENC*
MEMORANDUM
SUBJECT:   Prohibition on Use of  Hazardous Waste  for  Dust
           Suppression or Road Treatment  (Your memo dated  6-25-85)

FROM:   A>John H. Skinner, Director Ijl/
        f  Off ice of Solid Waste  (WH-«5

TO:    : '  Charles E. Findley, Director
           Hazardous Waste Division (M/S  529)
           Region X


     Based on the legislative history to Section  3004(1), and
on the structure of the statute  and EPA's current regulatory
policy, we believe that the ban  in Section 3004(1) applies only
to materials that are themselves hazardous wastes.   The provision
will be codified in Part 266, a  subpart  reserved  for hazardous
waste uses constituting disposal.

     The language of Section 3004(1) does not specify whether
the mixture of used oil and hazardous waste must, itself/ be a
hazardous  waste in order for the ban to  apply.   However,  the
conference report to the Hazardous and Solid Waste Amendments
of 1984 explains that Congress intended  for the  ban  to apply to
the use of "dioxin contaminated  wastes or any other  hazardous
waste as a dust suppressant" (H.R. Rep.  No. 1133, 98th Cong.,
2d Sess. 88 (1984)).  [Emphasis  added.]

     In addition, Congress placed the prohibition on dust
suppression in Section 3004 of RCRA, where regulatory juris-
diction is generally limited to  hazardous wastes  identified or
listed under Section 3001.  Congress,  if so inclined, could
have expressly extended the prohibition  to used  oils or other
materials  that are not hazardous wastes.  For example,  the
prohibition could have been placed in Section 3014 (a) of  RCRA,
which applies to all used oils that are  recycled, whether or
not the used oils are hazardous  waste.

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     In Section 3001 of RCRA, Congress gave EPA the authority to
define in regulations the hazardous wastes subject to regulation
under Subtitle C.  Section 261.3(a)(2)(iii) provides that if a
mixture of a solid waste and a characteristic waste no longer
exhibits any of the characteristics, it is not a hazardous waste
and is no longer subject to Section 3004.  This is not an exemp-
tion but rather is part of EPA's definition of hazardous waste.
Absent a clear indicationi in the statutory language or legislative
history that Congress intended to override EPA's current regulatory
policy relating to the definition of hazardous wastes, we believe
that the policy should apply in this case.

     Based on the above rationale, our positidn remains as stated
in the June 6 memorandum.
cc:  Waste Management Division Directors, Regions I - IX
     Mark Greenwood, OGC

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  »
  i        UNITED STATES ENVIRONMENTAL PROTECT	•-«

  /                    WASHINGTON. D.C. 20480              9493.00-1A
  f                                                     Attachment
                            JUN 6   1985
                                                        Of *ICE OF
                                               SOLID WASTt AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT:   Prohibition on  Use of  Hazardous Waste  for
           Dust Suppression or Road Treatment

FROM:      John H.  Skinner , Director
           Office of  Solid Waste   (WH-562)

TO:        Waste Management•Division Directors
           Regions  I  - X


     The Hazardous and Solid Waste Amendments of 1984  (HSWA) ban
the use of hazardous waste and materials mixed with hazardous
waste as a dust suppressant.  This memorandum explains how EPA
interprets the new provision.


THE HSWA

    Section 213(1) of the HSWA amended Section 3004 of RCRA by
adding a new paragraph (1) to read as follows:

    "(1J Ban on dust suppression.  The use of waste or used oil
or other material which is contaminated or mixed with dioxin or
any other  hazardous waste identified or listed under Section 3001
(other than a waste  identified solely on the basis of  ignitability)
for dust suppression or road treatment is prohibited."

    EPA recently amended  (in the  Codification Rule, signed by  the
Administrator April  20, to be published in the next two weeks)
5266.23, the standards for persons using hazardous waste  in a
manner constituting disposal, to  include verbatim the  prohibition.
In addition, $261.33 (setting out requirements for discarded com-
mercial chemical products) has been amended  to provide that the
materials and items listed in $261.33 are hazardous wastes when
they are mixed with waste oil or  used oil or other material and
applied to the land  for dust suppression or  road treatment.   In
effect, this conforming change provides that the requirements  of
Section 3004(1) will apply to any $261.33 product that is mixed
with waste oil or used oil or other material and used  for dust
suppression or road  treatment.

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 STATUTORY  INTERPRETATIONS

      Several  questions may arise as you implement this prohibition.
 EPA  interprets  Section 3004(1) to impose the following requirements

      e   Any  material used as a dust suppressant is at least
         potentially subject  to the prohibition.  Although
         "used" or "waste" oil is the most common material
         used for dust suppression, the Act's language
         includes the term "...or other material..."

      0   The  prohibition applies when a material is mixed with
         any  listed hazardous waste including a waste listed
         for  ignitability.*   This means a mixture containing
         hazardous waste from small quantity generators,
         otherwise exempt under $261.5, is subject to the
         prohibition nonetheless.2

      0   The  Agency interprets the prohibition to apply to
         hazardous waste (whether or not it is part of a mix-
         ture).  Under this interpretation used oil exhibiting
         EP toxicity, for example, must not be used as a dust
         suppressant.3

      •   For  the prohibition  to apply, the naterial being used
         for  dust suppression must actually be a hazardous waste.
         For  example , a characteristic waste that is blended
         with petroleum so that the resultant mixture no longer
         exhibits any of the characteristics would not be subject
         to the prohibition.
2.X The statutory language makes it clear that the provision
   exempts from the prohibition any material that is mixed with
   a waste hazardous solely because it exhibits the iqnitability
   characteristic.  Materials mixed with any listed wastes are
   subject to the ban.

2/ The mere presence of constituents identified in Appendix VIII
~~  of Part 261 is not alone sufficient proof that any mixing has
   occurred.  EPA continues to bear the burden of proof in any
   individual case to show that mixing has occurred.  As a point
   of information , EPA proposed on January 11 , 1985 , that used
   oil used as fuel with a chlorine content exceeding 4000 ppm
   total chlorine would be presumed to be mixed with hazardous
   waste. [See 50 PR 1691-1692.]

V In contrast, used oil that contains hazardous constituents but
   has not been mixed with hazardous waste and does not exhibit a
   characteristic may be used as a dust suppressant.  This is
   because used oil is not presently listed as a hazardous waste.

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         Because the ban applies to hazardous waste and
         materials mixed with hazardous waste, a mixture
         containing dioxin is subject to the prohibition
         only when the dioxin comes from a hazardous waste
         or when the material is otherwise a hazardous
         waste.  (As stated in footnote 2, the presence of
         a hazardous constituent is not alone sufficient
         proof that mixing has occurred.)
USED OIL LISTING

     The HSWA requires EPA to propose a listing determination for
used car and truck crankcase oil by November 8, 1985, and to make
a final listing determination on all used oils riy November 8, 1986.
[Section !3014(b) of the amended RCRA.]  Under the interpretations
discussed above, any used oils eventually listed as hazardous waste
would be prohibited from use as a dust suppressant.


cc:   Mark Greenwood , OGC

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ATTN 0»:

MEMORANDUM


SUBJECT:



FROM:



TO:
             UNITED STATES ENVIRONMENTAL PRO!
                                    REGION 10
                             Seattle,  Washington  98101

             M/S  533              JM 2 5 1985
                                                                  9493.00-1A
 •
-
                   Prohibition on  Use of Hazardous Waste for
                   Dust  Suppression or Road Treatment ^
                   Charles  E. Findley, Director
                   Hazardous Uaste Division   (M/S

                   John  H.  Skinner, Director
                   Office of Solid Waste   (UH-562)
           One of the interpretations in your June 6, 1985. subject memorandum
      is of concern.  Specifically, the concern is that the interpretation may
      encourage the mixing of characteristic hazardous waste to be "disposed"
      through use as a dust suppressant.  We fail  to understand the basis  for
      the  interpretation listed as the fourth bullet on paoe 2 of the subject
      memorandum.  The statutory language clearly states that any waste, used
      oil, or other material which is contaminated or mixed with any hazardous
      waste Identified or 11s1 r: under Section 3001 cannot be used for dust
      suppression or read tre. *r.jnt.

        ;   Any solid waste exhibiting a characteristic is a hazardous waste
      under Section 3001.  If waste, used oil, or any other material is
      contaminated (i.e. contains) or is mixed with such characteristic
      hazardous waste (unless the only characteristic exhibited is ignitahility)
      then that waste, used oil, or material cdnnot be used for dust suppression
      or road treatment—irrespective of whether 1t exhibits the
      characteristic.  We fall  to understand how any other interpretation of the
      statutory language can be made.

           The interpretation in your memo, :1n fact, would tend to encourage
      mixing of characteristic hazardous waste with waste, used oil, or other
      material and hence avoid regulation if the resulting n1xt;ire no longer
      e>hibits the characteristic.  The mixture rule under §261.3 allows  such  an
     ."exemption" with respect to the Subtitle C regulations.  ",>.3 statutory
      amendment does not provide such an exemption for such mixt'jrss with
      rerpect to the ban as a dust suppressant.

           The Interpretation (fourth bullet) in your memo concludes that
      "...the material being used for dust  suppression must actually he a_
      hazardous wasteJL That conclusion appears  to 136 contradictory to the
      statutory language.  We assume the Interpretation  in your memo is based on
      first applying the mixture rule of §261.3,  then  determining  If the
      resultant mixture Is a hazardous waste.  The statutory  language would not
      appear to allow the regulatory mixture rule  to  be  applied  as  a means  to
      avoid the ban.

           We strongly urge reconsideration of the  interpretation.
       cc;    Waste Management Division Directors, Regions 1-9
             Mark Greenwood, CGC

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                                                            9493.1985(01)
                          JUL
2 i98E
                                                                         tr
                                                                         f
                                                                         te
                                                                       S ?
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                                                                       I  «
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                                                                       9> ••
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                                                                       \ (9
HBHOEAHDUM                                                             3 3
          •                                                             * o
                                                                       i  <
                                                                       5*
SUBJECT i  Prohibition  on  OM>  of  Rasardoua Most* for Dost              3.
          Suppression  or  Road Treatment (Tour M»O dated 6-25-85)      i»
                                                                       3 r»
PRO»«i     John  R.  Skinner,  Director                                   3c
          Office of  Solid WftBte  (WII-5C2)                              £g
                                                                       g »
TO i       Charles  E. Find ley r Director                                i r
          Hasardoua Waste DiTiaion (K/S 529)                           M-
                 x                                                    »-
                                                                       *- c
                                                                       x, m
      Baaed on  the  legialative hiatory to Section 3004(1), and         ="|
on the atrvicture of  the  atatute and EPA 'a current regulatory          a a
policy, ve believe that  the  ban in Section 3004(1) appliea only       2^
to aateriala that  are  themaelvea haaardoua wee tea.  The proriaioa     WV
will  be codified in  Part 2tf, a aubpart reserved for hasardous        OD»
vaate uaea constituting  diapoea.1.                                     VK
                                                                       •w r
                                                                        ••
                                                                         o
      In aaWition,  Congreas placed the prohibition on duat               '
auppreaaian in section 3004  of RC9A, where regulatory juris-            «
diction ia generally limited to hasardoua waatea identified or          "
liated under Section 3001.   Congreaa, if ao inclined, could
have expressly extended  the  prohibition to uaed oila or other
•ateriala that are not hasardoua waatea.   Por exanple, the
prohibition could  have been  placed in Section 3014 (a) of *C*A,
which appliea to all uaed oila that are recycled, whether or
not the uaod oila  are  haxardoua waate.

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     In Secrtio* 3001 of  RCltA,  Congress  gave  EPA the  authority  to
define in Kvcjulations  the hazardous wastes subject to regulation
under Subtitle C.  Section  261.3(») ( 2) ( ill)  providea that  if a
mixture of a solid waste and a  characteristic  waste  no longer
exhibits any of the characteristics,  it is not a hazardous waste
and is no longer subject to Section 3004.  This is not an  exemp-
tion but rather is part  of  EPA's definition  of hazardous waste.
Absent • clear indication in the statutory language  or legislative
history that Congress  intended  to override EPA's current regulatory
policy relating to the definition of  hazardous wastes, we  believe
that the policy should apply in this  case.

     Based on the above  rationale, our  poeition remain* as stated
in the June 6 memorandum.


cct  Waste Management  Division  Directors, Regions I  - IX
     Hark Greenwood, OCC

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                                                          9493.1985(02]
                           MDV  M 885
Cverette ttyatt
Wire Division Engineer
Leggett i Platt, Inc.
P.O. Box 695
No. 1 - teggett Road
Carthage, Missouri  64836

D«ar Hr. wyatt:

     Our office has received your Isttsr datad July 29, 1905,
requesting a decision frost the Agency in regard to the proper
classification of the liquid micronutrient fertiliser (•Ferrous
Green*) produced by Leggett 4 Platt from your spent sulfuric acid
pickle liguors.  Based on the Agency's recent amendment to the
definition of solid waste published in the federal Keqister on
January 4, 198$, the fertiliser produced frosi your pickl* liquor
is not presently subject to regulation (although the Material is
still a solid and hasardous waste).

     The raw material for the fertiliser production/ waste pickle
liquor, is both a solid waste (since it is a soent material; see
the Pedoral Register, January 4, 1985 - $261.2) and a hasardous
waste (EPA Rasardous Waste No. K062).  If a fertiliser is produced
from this waste, the fertiliser (if hasardous) is normally regulated
under Subpart C of Part 266 (see 50 PR 666r January 4, 19*5).
If the fertiliser is produced for use by the general public, how-
ever, this product is exempt frost regulation (see S266.20(b)).

     As you know, Leggett 4 Platt originally received a temporary
exclusion for their spent pickle liauor on December 16, 1981.
This exclusion was for treated K062 waste/ and was based on the
Agency*« propoaal to change the CP toxicity characteristic fro*
total chrosiiisi to hexavalent chromium.  This proposal has not
been made fioal by the Agency/ nor do we expect to make that
proposal final.  After treatment, the pickle liquor has pR values
ranging frosi 2.5-3.5, and hexavalent chromium  levels are low
«0.005 mq/1).  The treated liquor/ however/ contains 16-19 mg/1
total chromium/ which exceeds the EP toxicity  limit for chromium
(5 mg/1).  Leggett i Platt's treated pickle liauor is, therefore,
classified as hasardous due to the characteristic of P.P toxicity,
and so it cannot be dellsted under f§260.20 and 260.22 of the
RCRA regulations.

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     The chroaium levels in the untreated liquor (28-63 mg/1)
also exceed the BP toxicity Halt for chromium.  Due to its
exceptionally low pH level (0.3-1.7), the untreated liquor it
alto claiisified •• a corrosive vaate.  Such a characteristically
corrosive and BP toxic waste is likewise not delistable under
$5260.20 and 240.22.  Leggett & Platt's untreated pickle liquor
is also considered a hazardous waste, and Bust be handled and
stored in accordance with 40 CFt Parts 262 to 265 and the
permitting requirements of 40 CPR Part 270? that is, the spent
pickle liquor is subject to regulation before it is used to
produce a fertiliser.  Since the pickle liquor, when treated,
becomes a commercially available fertiliser product, the treated
pickle liquor is exempted from requlation, although the treated
liouor la still a hazardous waste.  Should any portion of Leqqett
& Platt's pickle liquor not be handled in this manner, that
portion would be subject to regulation under RCRA.

     As mentioned above, the Agency has not acted on the proposal
to alter the CP toxicity characteristic frost total chroaiua to
hexavalent chromium, and your treated waste is, therefore, not
delistable due to the hiqh levels of total chroaiua.  Due to this
findinq, the Agency will recommend to the Assistant Administrator
for Solid Waste and emergency Response that the temporary exclusion
granted for your treated waste on December 16, 1911 be withdrawn
and that vour petition be denied.  This action does not have any
bearing on the regulatory status of your fertiliser product, but
indicates that because of the characteristics that the treated
waste exhibits, the waste is not eligible to he removed from the
Agency's list of hasardous wastes (4261.32).

     At this time, we would like to close our files.  The Agency
is required to publish all delisting decisions in the federal
Register, so our office will recommend to the Assistant
Administrator that a denial notice be published in the near
future,  we, however, have been offering petitioners the option
of withdrawing their petitions rather than having the Agency
publish a denial in the federal Register.  If you would like to
exercise this option, we require that a letter be sent to us
retracting your petition and stating that the waste  is hasardous
and will be managed appropriately,  we would appreciate that if
such a letter is sent* it be forwarded to our office within one
month from the date of today'a correspondence.

     As indicated] above, the Agency  is not currently regulating
comaereial, hasardous waste-derived  fertilisers.  As more  infor-
mation becomes available about these products, the Agency may
propose to regulate their use.  we will keep you advised of  any
further developments in this area.

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     l£ you hav« any qu«atlona, plaaa* contact Scott Maid, of my
ataff, at (2tl) 312-4783.

                              Slnearaly your*,
                              Eilaan Clauaaan
                              Oir«ctor
                              Charactariiation and Aaa«ssn«nt
                                   nlvision (WR-562B)
cct  Jo« Davia, Miaaourl ONR
     Ch«t -cLaughlin, EPA Paqlon VIZ

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                                                       9493.19 8 5(03!
                             NOV 25 1985
Ms. G. Mahoney
Environmental Engineer
Bridgeport Braes Corporation
P.O. Box 51519
Indianapolis, Indiana  46251

Dear MS. Mahoney:

     This letter is in response to your request for an
interpretation of the January 4, 1985 hazardous waste regulations,
concerning the regulatory status of two characteristically
hazardous sludges that are recycled.  (The specific examples
you are interested in are described in your letter dated
August 14, 1985, and in our telephone conversation.)  in
your letter, you indicate that both of these Materials are
recycled in such a manner that you believe they are not
solid wastes and therefore not subject to the hazardous waste
regulations under RCRA.  However, based on the January 4
rules, one of the materials—the zinc oxide dust—would be
oetined as a solid waste and would be regulated under the
hazardous waste regulations.  The remainder of the letter
will describe how these materials are covered under these
rules.

     first, I would like to apologize to you for my delay in
getting back to you.  My schedule has been very busy and hope
my delay has not caused you any problems.  With respect to
your specific examples:

     • A zinc oxide dust (a characteristic hazardous sludge)  is
       sold to a facility where it is processed into zinc sulfatt;
       the resulting cine sulfate is then sold to bulk tertinzer
       blenders who use the zinc sulfate as an ingredient in
       fertilisers.  The fertilizer is then sold to smaller
       distributors.

            Under the example, the zinc oxide  is processed
       to produce zinc sulfate (as this is described in
       the attachment to your letter),  under  the rules,
       such activities do not normally constitute solid waste
       management.  However, when the material (that is, the
       zinc oxide dust) is to be incorporated  into a product
       that is placed on the land, we would detine the entire
       recycling activity as "use constituting disposal."

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       Under the January 4 rules, all sludges that are hazardous
       (whether or not they are listed) are defined as wastes
       if they are placed directly on the land for benefical
       use or incorporated into a product that is placed on
       the land for benfical use.  (See 40 CPR Part 261.2(c)(l)
       and Part 266 Subpart C; see also preamble discussion
       at 50 PR 627 and 646.)  Therefore, the zinc oxide
       dust is subject to the hazardous waste regulations
       (i.e., the generator of the zinc oxide dust is subject
       to the requirements of Part 262, transporters of this
       dust are subject to the requirements of Part 263, and
       the facility that processes the zinc sulfate would be
       subject to the storage requireaents of Parts 264 and
       265).  You should also be aware that if the zinc
       sulfate is hazardous (i^e^, exhibits any of the charac-
       teristics of hazardous waste), it would also be subject
       to the hazardous waste regulations.

     • A characteristic hazardous sludge is generated froai an
       air pollution control device.  This sludge can be reclaimed
       to recover its copper content; in addition, any lead
       recovered can be produced into a low grade lead solder.  •

            Under this scenairo, the hazardous sludge would not
       be defined as a waste (and thus not be subject to the
       hazardous waste rules) as you have correctly indicated  in
       your letter.  In particular, under tne January 4 rules,
       sludges that are reclaimed are only detined as solid and
       hazardous wastes if they are specifically listed;
       since the sludge is not listed (but is hazardous solely
       because it exhibits the characteristic of EP toxicity),
       the material is not detined as a solid waste.  See 40
       CPR Part 261.2(0(3) > see also preamble discussion at
       50 PR 633.  (This material stay still be subject to
       regulation it it is accumulated speculatively.)

     I hope this letter responds to your request.  Please
feel free to give me a call if you have any questions or
comments.  My telephone nuaber is (202) 475-8551.

                       Sincerely yours,
                   Matthew A. Straus,  Chief
                   waste Identification  Branch

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                                                       9493.1985(04)
                  RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                   NOVEMBER  85
3.   'Jse Constituting Disposal

    The January  4,  1985  (50-H* 614)  redefinition of Solid Waste brought into regulation
    certain  hazardous waste management activities that were previously exenpt  from
    regulation because these activities were deemed to be beneficial use,  reuse,  or
    reclamation  under $261.6(a)(l).  On this date, EPA added a new section (Part  266
    Subpart  C) which outlines the  regulations on the use of hazardous waste in a
    manner constituting  disposal.  This section now regulates beneficial use or
    reuse of hazardous wastes via  placement or application of the hazardous waste
    (recyclable  material) on the land.

    For training purposes, a fire  department sprays virgin diesel fuel on  the  ground.
    The fuel  is  set ablaze and then extinguished.  The resultant residues  are  collects
    and properly disposed of as RCPA hazardous wastes.

    Does the  act of spraying the virgin diesel fuel meet the use constituting  disposal
    classification?

        No;  spraying virgin fuel on  the ground for firefighting practice does  not meet
        the use  constituting disposal classification.  In this case, the fuel  is  a
        primary  material and not a waste.  Had the fuel been spent or a secondary
        material, such usage could be considered use constituting disposal.

        Source:    Stew Silverman (202) 382-7706
                  Matt Straus     (202) 475-8551

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                                             9493.1985(05)
                                DEC  I 3 BB5
Mr. Michael D. Boruch
P.O. Box 236
Bast Setauket, New York  11733

Dear Mr. Boruch>

     This letter is In response to your inouiry of October 25,
1985, regarding the de-characteriiation and disposal of hatardoua
wastes that have undergone chemical solidification.  Per our
discussion, the waste treatment scenario you have described
would result in a waste which the Agency classifies as a
•recycled Material to be used in a manner that constitutes
disposal.'  The latest regulations addressing such a waste
product can be found, in full, in 50 F*_ (14-6(8, dated
January 4, 1985 and 40 CPU, Part 26(, revised date of July 1,
1985.  To briefly sun a rise,, the Agency's jurisdlcation over
waste products extends to all hasardous secondary materials,
when they are applied to land or used in water as fill or
support material.  This jurisdiction extends to all such
material, whether or not the waste has been mixed with other
materials or chemically altered before disposal.  The tyoe of
processing or treatment of the waste may be relevant in determining
what regulatory scheme to adopt for the waste or in deciding  if
the derived product is still hasardous, however, the act of
processing, in and of itself, does not deprive the Agency of
RCRA Subtitle C jurisdiction when the waste containing product
will be disposed of.  Thus, such products an fertilisers,
asphalt, and building foundation materials that use hazardous
wastes as ingredient* are subject to RCRA jurisdiction.

     In essence, the Agency maintains that if a waste oroduct
is fully or partially composed of a hazardous material, then  it
is under RCItA jurisdiction and must be managed accordingly
unless and until an exclusion is petitioned for and granted
pursuant to 40 CPR ff260.20 and 260.22.  It should be noted
however, that the Agency, while having jurisdiction over  these
waste*, has decided not to regulate these materials when  they
are formulated into fertilisers that we sold to the general
public.  (See 5266.20(b))

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     I hope this letter and the referenced regulations will
provide you more insight into the Agency's responsibilities
for haiardoua waste tanaqewent, and in particular, for wastes
that have been cheaically treated.  Should you have any further
Questions regarding this, or any other subject, please do not
hesitate to contact me.

                              Sincerely,
                              Jawes A. Poppiti
                              Manager
                              Waste Identification Branch

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                                                   9493.1985(36)
               RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                DECEMBER 85
Used Oil as Dust Suppressant

5.   Can EP-toxic waste oil wnich has not been mixed with hazardous  waste oe used
    for dust suppression purposes?

         Yes;  261.6(a)(3)(iii)  currently exempts waste oil  exhibiting a charact-
         eristic from regulation under Parts 262-266,  124,  and  270  when the used oil
         is being recycled.   Therefore,  waste oil which  exhiDits  a  characteristic
         and which has not been mixed with hazardous waste  can  be used as a dust
         suppressant.

         This ban, mandated by  the Hazardous and Solid Waste  Amendments of 1984
         (HSWA)  and codified in S266.23(b),  prohibits used  or waste oil which has
         been mixed witn dioxins or other hazardous wastes  from being used as a
         dust suppressant.   Discussion in the preamble of the codification rule
         (50 FR  28718) indicate that this ban would also apply  to unmixed hazardous
         waste.   Therefore,  in  the future  when EBfc lists waste oil as a hazardous
         waste,  road oiling and other dust suppression methods  involving used oil
         would be prohibited.

         source:     Matt Straus (202)  475-8551

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                     ,ATES ENVIRONMENTAL PROTg   ON -GENCY        9493.1986(01!
               JAM 2 2
Mr. Randall P. Andrews
Industrial and Agricultural Chemicals, Inc.
Route 2
Box 521-C
Red Springs, M.C.  28377

Dear Mr. Andrews:

     This is in response to your letter of December 27, 1985,
concerning the regulatory status of the copper plating solution
that you receive at your plant site.  As I understand your
situation, you obtain from a copper plating operation a copper
sulfate bath (which exhibits the characteristic of corrosivity)
at your plant site and react it with a chelating agent to
produce a material that is registered with the North Carolina
Department of Agriculture as a commercial fertilizer.  This
material no longer exhibits the corrosivity characteristic.
This material is then sold to farmers for use as a fertilizer
or is sold to fertilizer companies for inclusion into fertilizer
for resale.

     Under this scenario, the copper sulfate bath that you
receive at your plant site is a solid and hazardous waste and
is subject to the transportation and storage requirements
under the hazardous waste regulations.  The material that is
produced at your plant site (i.e., the commercial fertilizer),
however, is no longer subject to regulation under the hazardous
waste rules and may be managed as such.  The basis for this
decision is as follows*  on January 4, 1985, EPA promulgated
its final rules which deal with the question of which materials
are solid and hazardous wastes when they are recycled.  Among
other things, these rules state that all hazardous secondary
materials that are placed on the land for benefical use or
incorporated into products (referred to as waste-derived
products) that are placed on the land for benefical use are
solid and hazardous wastes.  (See enclosed copy of regulations.)
In the Agency's view, these practices are virually the equivalent
of unsupervised land disposal, a situation RCRA is designed
to prevent.  The many damage incidents resulting from wastes
being placed on the land for benefical use bear out the
Agency's concern.  This type of recycling activity has also

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been a particular concern of Congress.  In particular, in a
number or Congressional reports, they describe various damage
incidents involving wastt-s that arc placed on the land for
benc-tical use.  These reports reflect riot only Congress1
concern but its intent that EPA regulate this type of activity.
Therefore, we believe that this type of recycling activity
constitutes waste management and need be subject to regulatory
control.

     by asserting jurisdiction over waste-derived products
that are placed on the land, we are also asserting jurisdication
(and regulating) the materials that go into these products,
provided these materials are hazardous (i.e., exhibit one or
nore of the- hazardous waste characteristics or are specifically
listed).  Therefore, since the copper plating solution is
corrosive, it is subject to-regulation.  More specifically,
the generator and transporter of this material is subject to
the appropriate generator arid transporter standards, including
the hazardous waste manifest, while you (being the recycler)
would be subject to the appropriate storage standaras.   (See
40 CtR 261.6(b) and (c) for specific regulatory requirements.)
As indicated earlier, however, the material that is produced
at your facility — the conunerical fertilizer — is no longer
subject to regulation since this material is no longer'defined
as hazardous.

     Since this regulation has gone through formal rulematcing,
your only altentative (at this time) is to submit a rulenaking
Petition under 40 Cf'R Part 260.20 (See enclosure for specific
information requirements).  Please feel free to give me  a
call if I cart be of any further assistance; my telephone
number is (202) 475-13551.

                              Sincerely yours,
                              Matthew A.  Straus
                              Chief
                              waste  Identification  Branch  (V.H-562B)

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                                                                    9493.1986(02)
            guidelines or regulations have been issued under RCKA
       Procurement of recovered materials?

           The "Federal Procurement" provision in Section 6002 of
           the Resource Conservation and Recovery Act is one of the few
           provisions of the statute that directly mandates resource
           recovery.   In establishing this provision, Congress recognized
           that the Federal Government is an enormous consumer of certain
           materials.  Hence, procurement practices of Federal agencies
           can encourage the develocment of private sector companies which
           use recovered materials to manufacture products for both the
           Federal and private sectors.

           The provisions of §6002 apply to procuring agencies that purchase
           designated items when the price of such designated item exceeds
           310,000 or when the cost of such an item purchased during the
           preceding  year exceeded 310,000.  The statute incorporates two
           mechanisms to accomplish the goal of establishing Federal recyclirn
           practices.  First, §6002(d) states that all Federal procuring
           agencies responsible for drafting or reviewing specifications
           must review and revise their specifications in order to eliminate
           any unfair discrimination against the use of recovered materials.
           Second, §6002(e) reouires the EPA to designate items that are or
           can be produced with recovered materials and to set forth reccm-rended
           procurement practices for such items ("procurement guidelines''^.
           Section 6002(c) requires all procuring agencies which use approorUted
           Federal funds to procure designated items containing the highest
j          percentage of recovered materials, practicable, provided that
S          reasonable levels of competition, cost, availability and technical
z          performance are maintained.  Section 6002(i) reouires procurina
2          agencies to adopt an affirmative procurement program to ensure
    ^      that designated items containing recovered materials are purchase!
z          to the maximum extent practicable.
M   X
J   U
g   2      EPA finalized guidelines for cement and concrete containing
as   X      fly ash on January 28, 1983 (48 n* 4230).  Paper and paper product
Q          guidelines were proposed on April 9, 1985  (50 PR 14076).  Guidelines
*          for Federal procurement of asphalt materials containing ground  *-. ir<>
b,          rubber for construction and rehabilitation of paved surfaces were
           proposed on February 20, 1986 (51 PR 6202).  The EPA has
£•         criteria for selecting additional Items for which procurement .-juM^l lies
en         will be prepared (48 FR 4231).  The criteria are:

2         1)  The waste material must constitute a significant solid waste
«             management problem due to volume, degree of hazard or
               difficulties in disposal;

           2)  Economic methods of separation and recovery must exist;

           3)  The material must have technically proven uses; and

           4)  Federal purchasing power for the final product must be sub*?1- r-- : \\ .

           Source:    William Sanjour  (202) 382-4502
           Research:  Kevin Weiss

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              ITED :   TES ENVIRONMENTAL PROTL.TION A  HCY
                                                         9493.1986(03)
Mr. Gary D. Meyers
Thfi Fertilizer Institute
1015 18tM Street, N.W.
Washington, D.C.  20036
                                    ^- n'\
                                  wfi I »
Dear Mr. Meyers;                  **^

     This is in response to your letter of May 9, 1986,
regarding the regulatory status of commercial fertilizers
that contain emission control dust/sludge from the primary
production of steel in electric furnaces (EPA Hazardous Waste
No. KUG1) under the Federal hazardous waste rules.  In your
letter, you question an interpretation I have taken regarding
the applicability of the hazardous waste rules to fertilizers
produced usimj zinc flue dust as an ingredient.  In particular,
you disagree with my statement that such fertilizers are not
exempt from regulation pursuant to 40 CFR S26G.20(b) until
they are in the physical form in which they were sold to the
ultimate consumer.  Rather, you believe that once the zinc
tluc- dust has been incorporated into the product and has
been properly processed, the material, while subject to our
authority, is currently exempt from regulation because it is
a "commercial fertilizer.I/  (He both agree that the
transportation and storage ot zinc flue dust prior to is use
in the production of fertilizer is regulated.)
I/  You also believe that the zinc flue dust would not be
    regulated after it is reacted with sulfuric acid, the
    first step in producing zinc micronutrient fertilizers,
    since it has undergone a chemical reaction making it
    inseparable from the product by physical means (see
    $266.20(b)).  This would only be true if the material can
    be used as a fertilizer (and such fertilizer is produced
    tor the general public's use) after the zinc flue dust
    is reacted with sulfuric acid.  As you state in your
    letter, however, the zinc flue dust does not become a
    commercial fertilizer (i.e.,, a fertilizer that can be
    used by the general public) until it is reacted with
    sulfuric acid, granulated,  and sized.  I, therefore,
    believe this provision is not appropriate in this case.

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     In reviewing your letter as WG!! as the information
enclosed, I have reconsidered my interpretation and believe
that your reading of the rulus is correct; that is, once a
zinc micronutrient commercial tertilizer is produced,  it is
exempt trom regulation, provided it is being produced  for the
general public's use.  Therefore, zinc flue dust that  has
been reacted with sulfuric acid, granulated, and sized^/ would
be exempt trom regulation, except as described below,  whether
it is sold directly to the public for their use or to  a third
party who blends the zinc micronutrient fertilizer with other
nutrients prior to their being sold to the general public.

     The only exception to this is if the material is  not handled
in a manner commensurate with the management of zinc micronutrient
fertilizers.  In particular, in your letter you state  "...the
fertilizer is stored in bags or in bulk, awaiting shipment
to customers.  Because excessive moisture must not be  allowed
to contact the fertilizer until it is applied, the fertilizer
is stored indoors and transported in covered (hard top or
tarpaulin) trucks" (see page 4 of your letter).  Therefore,
if a person were to handle the "zinc fertilizer" in open
piles outside of buildings or in ways that would not be
typical for managing commercial fertilizers and such management
is causing this material to escape into the environment, we
believe the material would not be a commercial fertilizer
and that the operation could be viewed as a sham situation
where recycling is not in fact occuring.
2/  As stated in your letter, zinc micronutrient fertilizers
    do not become commercial fertilizers until they are
    reacted with sulfuric acid* granulated, and sized.
    Therefore, if a person were to just react the zinc flue
    dust with sulfuric acid or perform this step and the
    granulation step and then ship the material off-site to
    be granulated and sized or just sized, the material would
    be subject to the transportation and storage standards
    since the material is not yet a "commercial fertilizer"
    produced for the general public's use.  In addition, any
    wastes from the tertilizer production process—such as
    filter cake left after reacting the vase flue dust—would
    be RCRA wastes, and would automatically be deemed to be
    listed wastes if they derive trom treating a listed waste
    (such as wate K061).

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     Please teol free to give me a call it you have any
further questions; my telephone number is (202) 475-8551.
                              Sincerely,
                              Matthew A. Straus
                              Chief
                              Waste Characterization Branch


cc:  Regional Branch Chiefs (Regions I-X)
     Karl Johnson, TFI
     Carl L. Schauble, Frit Inaustriec
     Michael Steffensmeier, Neb. Dept. of Environmental Control

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY  9493'19 86( °41

                    "    WASHINGTON. O C. 20460
                             SEP 3  !987

                                               SCuiO WASTE ANO EV6»GESC» "ESPONS
MEMORANDUM
SUBJECT:   Regulatory Requirements  tor Agricultural  Jse
           of Spent Acias

                                    "^
FROM:      Matthew A. Straus, Cniet
           waste cnaracterization  drancn

TO:        Bill Taylor, Cnief
           Entorcement section  (bh-CE)
           region VI
     I am writing in response to your  memo of August 1«,
The term "commercial fertilizer," as used in »266.20, has  che
same meaning as normally usea in agriculture, i.e., a material
added to soil to supply certain elements essential to tne
growth of plants.

     Materials addea to soil to alter  soil propercies,  i.e.,
pH ad]ustment, are called soil amendments, not fertilisers.
Partner, tne exemption in »2b6.20(o) is meant to  include
fertilizer products tnat contain hazardous waste, not hazardous
waste placed directly on tne ground.   On ootn counts, che
spent acids you descrioe £ail to meet  the conditions of
*266.20(b), and tnererore are suo^ect  to 95266.21-266.2J.

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             UNITED SI   ES ENVIRONMENTAL PROTECTION AGc.«CY      9493.1986(05)
          1956
Mr. Carl E. Schauble
Executive Vice-President
Frit Industries,  Inc.
P.O. Box 850     £G5X>
Ozark, Alabama   4M-08SO

Dear Mr. Schauble:

     Thank you for your letter of May  12,  1986, regarding the
regulatory status of commercial fertilizers that contain
emission control dust/sludge  from the  primary production of steel
in electric furnaces (EPA Hazardous Waste  No. K0661) under the
Federal hazardous waste rules.

     As you are aware, the Aqency received a similar request
from The fertilizer Institute  (TFI).   In response to that
request,  a letter was sent to Mr. Gary Meyer (a copy ot which
is enclosed) which indicates  that zinc micronutrient fertilizers
(i.e^, thoso in which the zinc tlue dust has been reacted
with sulfuric acid, granulated, and sized) are exempt from
regulation under the Federal  hazardous waste provided they
are being produced for the general public's use and provided
this material is handled in a manner commensurate with the
management of zinc fertilizers (see enclosure for specifics).
Therefor*:, ir the tertilizer  you produce is reacted with the
sulfuric acid, granulated, and sized,  and  it it is produced
for the general public's u»e,  it is exempt from the federal
hazardous waste ragulationu.

     Please feel free to call Matt Straus, ot my staft, if
you have any further questions; Mr. Straus can be reached at
(202) 475-8551.


                                   Sincerely/
                                    iarcia  E. Williams
                                    Director
                                    Office  of Solid  Waste

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                                                     9493.1991(01)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. O.C. 20460
  JAN   8 199!
                                                      OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
 Frank Dixon
 President
 Thermal Waste Management
 237 Royal Street
 New Orleans,  Louisiana  70130

 Dear  Mr.  Dixon:

      This letter responds to your August 9, 1990, letter to
 Mr. Bob Holloway,  as well as to phone conversations between
 Mr. George Lane  of Thermal Waste Management (TWM) and Mr. Mitch
 Kidwell,  of my staff.  Your principal intent in writing to EPA is
 to seek confirmation of your assessment that the fuels TWM
 produces are  exempt from hazardous waste labeling requirements.
 You also ask  for clarification of the regulatory provisions that
 govern the production of fuels from oily hazardous petroleum
 refinery wastes  (i.e., 40 CFR 261.6(a)(3))  and the impact of
 various court opinions on these regulations.

      As I understand your letter, TWM has a process that produces
 marketable liquid and solid fossil fuel products from oily
 hazardous petroleum refinery wastes.  The liquid portion is
 reinserted into  the petroleum refining process and the solid
 portion is marketed as a fuel.  You assert that the TWM process
 is unique because it leaves no residues that would require
 subsequent treatment or disposal (aside from the wastewater,
 which is further managed in the refinery's wastewater treatment
 system) and use  this as a basis for drawing a "significant
 difference" between the TWM process and typical oil reclamation
"processes that recover a liquid component,  yet leave a solid
 residue requiring disposal.

      Regulatory  determinations such as the one you seek  (i.e.,
 specific to your process or products) are made by the appropriate  .
 State regulatory agency or EPA Regional 'Offices.  I am able to
 respond to your  questions regarding which Federal regulations may
 be applicable, clarifying the intent and meaning of various terms
 used  in the regulations, and provide some of the pertinent
 factors to consider in determining the regulatory status of the
 TWM process and  the fuels produced; however, the determination
 must  be made  on  a case-specific basis by the regulating agency.

      Under the Federal regulations, there is no regulatory basis
 to draw a distinction between secondary materials processed by an
 oil recovery  process that does not generate a residue and
 secondary materials processed by an oil recovery process that
                                      »
                                                          fri*ud o* RtcycUd Poptr

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 does  generate a  residue.   The  emphasis  you apply to the phrase
 "no element of discard"  as it  describes the TWM process suggests
 a misunderstanding of the Agency's  use  of the phrase in its
 January 8,  1988  proposal (see  53  FR 525)  on the. definition of
 solid waste.   (This definition is used  to determine whether a
 secondary material is subject  to  hazardous waste regulations
 promulgated under the Resource Conservation and Recovery Act
 (RCRA).)
                   *>
      In the January 8, 1988 preamble discussion,  the phrase "no
 element of  discard" is used to indicate that where there is an
 element of  discard evidenced in the management of a hazardous
 petroleum secondary material (e.g.,  placement in a surface
 impoundment)  prior to reinsertion into  the petroleum refining
 process,  the very element of discard indicates that the secondary
 material is a solid waste subject to RCRA regulation.
 Conversely,  if a secondary material is  managed prior to
 reinsertion into the petroleum refinery process that generated it
 such  that there  is no element  of  discard (e.g., by managing the
 materials solely in tanks), the secondary material is considered
 to be part  of an ongoing continuous production process, and thus,
 outside the scope of RCRA regulation.   Whether or not the
 processing  of the secondary material (in this example,  by
 reinsertion into the petroleum refining process)  results in a
 residue that must be disposed  of  is irrelevant to determining
 whether the secondary material, prior to reinsertion,  is a solid ,
 waste subject to regulation.

      The January 8, 1988 preamble discussion, as well as the
 exclusion proposed for oil-bearing  hazardous secondary materials
 that  are reinserted into the petroleum  refinery process (proposed
 40 CFR 261.4(a)(10)), is neither  relevant nor applicable to such
 materials that are inserted into  an oil recovery process other
 than  the petroleum refinery process that generated the secondary
 material (regardless of  whether the recovery process generates a
 residue).  Rather, fuel  that is produced (and oil that is
"reclaimed and used as a  fuel)  from  hazardous wastes resulting
 from  normal petroleum refining, production, and transportation by
 processes other  than normal petroleum refining operations are
 eligible for an  exemption from hazardous waste regulation under
 40 CFR 261.6(a)(3)(viii).
                                      s
      Your first  four questions indicate a concern regarding
 whether the ownership of the unit,  the  operator of the unit, the
 characterization of the  unit's operation as intermittent (i.e.,
 batch)  rather than continuous, or the unit's characterization as
 mobile rather than stationary  has an impact on whether the
 products produced are exempt from regulation.  In general, under
 Federal regulations such aspects  of a process have little impact
 on the regulatory status of the products produced or the residues
 generated.

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      The applicable regulatory provisions (40 CFR 261.6(a)(3))
 explicitly state the conditions which must be met for fuels
 produced from hazardous secondary materials from petroleum
 refining to be exempt from regulation.  (For example,  in
 261.6(a)(3)(v),  "refining of oil-bearing hazardous wastes along
 with normal process streams"; and in 261.6(a)(3)(viii)(A),
 "reintroduced into a process that does not use distillation or
 does not produce products from crude oil so long as the resulting
 fuel meets the used oil specifications under § 266.40(e).")

      In another question, you refer to the proposed 40 CFR
 261.4(a)(10)  (53 FR 529,  January 8,  1988)  which excludes:

      "Oil-bearing hazardous secondary materials from petroleum
      refining that are generated onsite and reinserted into the
      petroleum refining process along with normal process
      streams,  provided that the materials are not stored in a
      manner involving placement on the land,  or accumulated
      speculatively, before being so-recycled.   (Fuels produced
      from such recycling activities are not solid wastes.)"

 You ask for EPA's concurrence that TWM fuels are not solid
 wastes,  since the feed materials meet all of the above
 requirements.   Such an evaluation would need to be made on a
 case-specific basis by the regulating agency.

      It should be clear from the January 8, 1988 proposal
 preamble discussion regarding RCRA jurisdiction that the
 exclusion applies only to those secondary materials that are
 reinserted into the petroleum refining process (rather than being
 "inserted" into an onsite "recovery" process), thereby being part
 of an ongoing,  continuous production process.   (This language is
 taken from the statutory provision in section 3004(r).)
 Materials that are processed by processes other than "the
 petroleum refining process" would not be excluded under this
 proposed provision (although, as stated above, there is an
'existing rule that exempts fuels produced by such other
 processes, provided the fuels meet the used oil specifications).
 Please keep in mind that the Agency has not finalized the 1988
 proposal, nor has any State, to our knowledge, adopted such a
 provision in a final regulation.  Conditions for meeting the
 exclusion could change at promulgation.

      A number of your questions refer to the January 8,  1988
 preamble discussion and make an assumption that the TWM process
 is a "petroleum refining process."  EPA described what it means
 by a petroleum refinery process (i.e., petroleum refining
 facility) in a November 29, 1985 rulemaking that promulgated the
 exemptions for fuels derived from petroleum refinery wastes (see
 50 FR 49169).  (This description was reiterated in the January  8,
 1988 proposal preamble discussion, and is consistent with the
 statutory language in section 3004(r).)  As Footnote Mo. 11 in
 the November 29, 1985 FEDERAL REGISTER notice states, the Agency

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 does not consider used oil-based processes that produce fuel to
 be refining operations "(in spite of the use of distillation)
 because they do not produce fuels from crude oil."   This footnote
 further explains that if such processes use "...  oilbearing
 petroleum refining hazardous waste as a feed material,  the
 resulting fuels would be exempt if they Beet the used oil
 •pacification . .  ." (emphasis added).   By requiring that such
 fuels meet the used oil specifications of 266.40(e)  to  be exempt
 from regulation as *a hazardous waste fuel (assuming that the
 fuels are derived from listed hazardous wastes or exhibit a
 hazardous characteristic),  the Agency clearly did not intend for
 used oil distillation processes (and,  by extension,  other oil
 recovery processes)  to be considered petroleum refining
 processes,  even when oil-bearing petroleum refining hazardous
 wastes are used as a feedstock in the used oil distillation
 process.

      The TWM process does not appear to meet the Agency's
 definition of a petroleum refining operation because it:  1)  does
 not use crude oil as a feedstock,  2)  recovers a liquid  fraction
 that must be rerefined in the petroleum refining process (and
 therefore,-is not itself a  refined hydrocarbon product), and
 3)  exhibits no evidence that the solid fuel produced is a typical
 petroleum refining product  rather than a hazardous  waste fuel
 (i.e., if there is no removal of contaminants in the processing -
 - as would be the assumption if such fuel meets the used oil
 specifications found at 40  CFR 266.40(e)  — then there  is no
 basis on which to conclude  that such fuel is a refined  petroleum
 product rather than a petroleum refining waste recovery residue
 with recoverable energy (BTU)  value,  or rather, a hazardous waste
 fuel).  Since it does not appear that the TWM process is a
 petroleum refining operation,  many of your questions are moot or
 are otherwise unanswerable  because there is insufficient
 information on which to base a response.

      In two questions you ask whether the January 8, 1988
^proposal has been finalized and whether the Agency  has  considered
 recent court opinions regarding the jurisdiction of RCRA in
 responding to your questions regarding the status of the fuels
 produced by the TWM process.  EPA has not yet finalized the
 January 8,  1988 proposal; however, insofar as the proposal and
 relevant court opinions address the -scope of RCRA,  particularly
 in relation to secondary materials that are part of an  ongoing
 continuous petroleum refining processes,  these considerations
 were taken into account in  responding to your questions.

      In another question, you cite the Standard Industrial
 Classification (SIC) 2911 for petroleum refining and ask whether
 the TWM process is the "redistillation of unfinished petroleum
 derivatives."  While the TWM process does appear to be  the
 redistillation of an "unfinished petroleum derivative," the main
 focus of the SIC classification seems to be the actual  production
 of petroleum products.  Because the SIC description includes the

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phrase  "other processes,"  the  emphasis  does  not  appear to  be  on
2he  type  of process  involved,  but rather  on  the  feed materials
and  the products produced.   The TWM process  is best characterized
as a recovery process  that processes hazardous petroleum refining
wastes  to recover  a  liquid component which is reinserted into the
petroleum recovery and a solid component  which,  assuming it meets
the  used  oil  specifications of 266.40(e),  is a hazardous waste
fuel that is  exempt  from regulation.  If  the solid  fuel produced
by the  TWM process-does not meet  the used oil specifications  at
266.40(e), it is subject to regulation  as a  hazardous  waste fuel.

      In describing a petroleum refining process,  EPA sought to
distinguish between  actual petroleum production  processes  and
ancillary recovery processes.   However, exemptions  were also
promulgated to  address fuels produced by  recovery operations
where the contaminants were removed from  the fuels,  thus ensuring
that the  use  of the  fuels  would not pose  an  increase in risk  to
human health  and the environment  over the use of normal petroleum
refining  fuel products. You have provided no data  indicating
whether the solid  fuel produced by the  TWM process  meets the
266.40(e)  used  oil specifications; therefore we  are unable to
determine the regulatory status of the  solid fuel.

      You  specifically  asked whether the Agency agrees  that the
TWM  process is  a refining  process. For the  purpose of the
regulatory exemptions  found at 40 CFR 261.6(a)(3),  the TWM
process does  not appear to be  a refining  process in the same  way
that a  used oil distillation process is not  a refining process.
Rather, the TWM process appears to be a recovery process.

      In summary, I reiterate that EPA Headquarters  is  not  the
appropriate entity to  make a determination on the regulatory
status  of the TWM  process  as it operates  at  a particular facility
or on the products it  produces.  There  is no basis  on  which to
conclude  that the  TWM  process  is  a petroleum refining  process,
and  no  information was supplied to make a regulatory
''determination on the status of either the liquid or solid
portions  recovered (i.e,,  no data on whether the fossil products
meet the  used oil  specifications). If  the liquid portion  is  sold
for  direct use  as  a  fuel,  the  fuel would  be  exempt  from
regulation as a hazardous  waste fuel only if it  meets  the  used
oil  specifications of  40 CFR 266.4O(e).   If  the  liquid portion
 (i.e.,  oil) is  reinserted  into the petroleum refining  process
along with normal  process  streams, it would  be exempt  from
hazardous waste regulation under  261.6(a)(3)(vi).  If  the  solid
portion is marketed  as a fuel, or further used to produce  a fuel,
it would  likewise  not  be regulated as a hazardous waste fuel  only
provided  that it meets the used oil specifications  (assuming  that
it meets  other  relevant criteria  for a  hazardous waste fuel). If
the  recovered portions that are marketed  as  fuel do not meet  the
used oil  specifications, such  fuels are hazardous waste fuels
 (assuming that  they  are derived from listed  hazardous  petroleum

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wastes or are themselves hazardous by exhibiting a characteristic
of a hazardous waste) .

     Zf you have further generic questions regarding the
regulatory status of recovery processes or fuel products derived
from hazardous petroleum wastes, you should contact Mr. Mitch
Kidvell, of my staff, at (202) 475-8551.  For specific questions
regarding the application of RCRA regulation to the TWM process
or TWM fuel produdts, you should contact the appropriate State
regulatory agency or EPA Regional Office.

                              Sincerely,
                              David Bussard
                              Director
                              Characterization and Assessment
                                Division
bcc: Allyn Davis, Director
     Waste ' Management Division, Region VI

     Bob Holloway, Chief
     Combustion Section

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                                                       9493.1991(02)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C.  20460
                          JUN20I99I
                                                      OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
                 *.•
SUBJECT:  Regulatory Determination Regarding the Use of
          Petroleum-Contaminated Soils as an Ingredient  in
          Asphalt Batch:

FROM:     Sylvia K.
          Office of SoT

TO:       Merrill S. Homman. Director
          Waste Management Division
          Region I

     This responds to your March 11, 1991, memorandum requesting
a regulatory interpretation regarding the use of petroleum-
contaminated soils -as an ingredient in asphalt batching.  This
use of petroleum-contaminated soils has become an  issue  because
the recently promulgated Toxicity Characteristic  (TC)  rule may
result in such soils being hazardous wastes  subject  to
regulation, while the majority of such asphalt batching
operations have failed to apply for interim  status.   Thus, the
two main issues are:  (1) determining the regulatory status  of
the asphalt batching processes, and (2) the  appropriate
enforcement approach to address those regulated facilities that
failed to apply for interim status, or were  late in  applying.
For the latter issue, I refer you to the April 10, 1991,
memorandum from Bruce Diamond.

     In determining the regulatory status of the asphalt batching
operation, there are four different points of consideration:
1) whether the petroleum-contaminated soils  are hazardous solid
wastes when used as an ingredient in a product used  in a manner
constituting disposal, 2) whether the batching process itself is
legitimate recycling or treatment, 3) whether the  asphalt product
meets the waste-derived product exemption found at 40 CFR
266.20 (b), and 4) whether the storage of petroleum-contaminated
soils is subject to regulation.

1. Determining whether petroleum contaminated soils  are  solid
   wastes.

     In determining whether the contaminated soils are hazardous
wastes when used as ingredients in asphalt,  the term "petroleum-
contaminated" may be too generic to enable a definitive
regulatory determination because this term could encompass too
                                                          friaud en Kteyeltd faptr

-------
broad a variation of contaminants.  A more case-specific approach
may be necessary because certain "petroleum-contaminated" soils
may be subject to RCRA regulation while others may not.

     In general, a hazardous secondary material (and soils
contaminated with a hazardous secondary material)  used to produce
a product used in a manner constituting disposal is a solid
waste, unless it is a commercial chemical product that is
normally used IB this manner, such as a petroleum product
normally used as an ingredient in asphalt batching (see 40 CFR
261.2(c)(1)(ii) ~ although the commercial product may not be
listed in section 261.33, the same regulatory approach applies).
The regulatory status of soils contaminated with crude oil would
be determined by using the same approach.  The crude oil, while
not a secondary material, would be a solid waste because it is
being discarded by use in a manner constituting disposal, unless
crude oil is a normal ingredient in asphalt batching.  We expect
that most petroleum-contaminated soils are not contaminated
with the petroleum product that normally is used in asphalt
production and would, therefore, be solid wastes.   (For example,
if gasoline is not normally used in asphalt production, then
gasoline-contaminated soil is a solid waste when used in asphalt
production.)  However, there may be specific cases where the soil
is contaminated with a petroleum product normally used to make
asphalt, in which case the contaminated soil would not be a solid
waste when used in asphalt batching.

     Also, you should note that any media (including soil) or
debris resulting from remediation of an underground storage tank
cleanup under Part 280 is excluded from regulation as hazardous
waste (for the D018-D043 constituents) regardless of the intended
disposition, so these soils could be used in asphalt production.
(You should also note that we are presently reviewing a petition
from New York State that requests that the Agency exclude all
petroleum contaminated media and debris from regulation under the
TC.  A rulemaking may be initiated to address issues raised by
this petition, but the remainder of this memo is based on the
current rules.)

     In summary, with the exceptions of soils contaminated with
petroleum materials normally used in asphalt production and
soils resulting from underground storage tank cleanups, soils
contaminated with petroleum materials that are listed waste or
exhibit one of the characteristics would be hazardous and solid
waste.  The remainder of this memo discusses the issues relevant
for these soils.

2. Determining whether asphalt batchinj is legitimate recycling.

     The act of mixing petroleum contaminated soils into the
asphalt production process may be a form of treatment, subject
to permitting under Part 270, or may»instead be recycling,

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exempt from permitting under section 261.6(c).  The main question
is whether the'batching is "legitimate" recycling, as opposed
to treatment in the guise of-recycling ("sham" recycling).

     In determining whether the asphalt batching is legitimate
recycling, the Agency compares the contaminated soil with the
analogous raw materials normally used in asphalt batching.  To
the extent that thjs contaminated soils contain hazardous
constituents not found in the analogous raw materials, or contain
hazardous constituents in significantly higher concentrations
than in the analogous raw materials, the batching process would
be considered "sham1* recycling, unless such hazardous
constituents can be demonstrated to be useful in the production
of the product or in the product itself.  Another factor
indicating whether the batching process is sham recycling is
whether the contaminated soils are legitimately replacing a raw
material or ingredient normally used in the process.  For
example, if the contaminated soils are being used in excess of
the amount of raw materials that would otherwise be used, sham
recycling would be indicated.  Where sham recycling is indicated
(i.e., where contaminants in the soils are actually being treated
or disposed of by incorporation into a product), a treatment
permit may be required.

3. Determining the-status of the asphalt product.

     Whether the batching process is considered legitimate
recycling or not, the resulting waste-derived asphalt product is
a solid waste because it is placed on the land.  Assuming that
the resulting product is a legitimate asphalt product, the
applicable regulations are found at 40 CFR 266 Subpart C.  Doubts
regarding the legitimacy of the waste-derived product are
resolved by a comparison of the constituents found in the waste-
derived product to the constituents found in an analogous product
that is not produced using contaminated soils as an ingredient.

     If the asphalt product is produced using soils contaminated
with a listed hazardous waste  (e.g., K048-52), it would be
subject to hazardous waste regulations as a waste-derived
product.  If the product meets the conditions of the exemption
found at 40 CFR 266.20(b), which include meeting the applicable
Land Disposal Restriction (LDR) treatment standard(s), the
asphalt product is exempt from further regulation as a hazardous
waste.  If the product does not meet the terms of that exemption,
then it remains subject to regulation as hazardous waste, which
would amount to a de facto ban on the product's use.  Also, if
the asphalt product does not meet the conditions of the exemption
until further processing, then the asphalt is subject to
regulation as a hazardous waste until the conditions have been
met.

     If the asphalt product is produced using soil contaminated

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with vaste hazardous only because it exhibits a characteristic
(e.g., the TC), then the above discussion applies for as long
as the material continues to exhibit the characteristic. Further,
there are currently no LDR treatment standards for TC waste.

     You should note that over the next 1-2 years we will be
developing regulations that will address various issues
associated with waste-derived products.  We expect those
regulations to further clarify the distinction between legitimate
and "sham" recycling.

4. Determining the status of stored materials.

     With the exception of the materials described above in
number 1 (i.e., soils contaminated with petroleum normally used
in asphalt production or from underground storage tank
remediations), — and the exception discussed below — the
storage of contaminated soil that either contains a listed waste
or exhibits a characteristic is regulated under Parts 262, 264,
265, 268, and is potentially subject to permitting under Part
270.

     In the case of asphalt product that meets the conditions
of section 266.20(b), no storage requirements apply once the
conditions are met.

     I hope this has helped to resolve your issues.  If you have
any questions regarding the late notifier guidance document sent
to you earlier by the Office of Waste Programs Enforcement, your
staff should contact Hugh Davis at FTS 475-9867.  If you have any
questions regarding the regulatory status of recycling processes,
your staff should contact Mitch Kidwell at FTS 475-8551.  For
information regarding the New York petition, your staff should
contact Denise Keehner at FTS 382-4740.

Attachment

cc: Waste Management Division Directors
    EPA Regions ZI-X

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^osr^                                                      9493.1991(03)

 A\
      I       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                            JUN 2 I 1991
                                                         E OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
Kevin Young, Esq.
Whiteman, Osterman & Hanna
One Commerce Plaza
Albany, New York  12660

Dear Mr. Young:

     This letter responds to your letters of June 19, 1990 and
December 21, 1990 to Mr. Randolph Hill of EPA's Office of General
Counsel regarding the RCRA regulatory status of air pollution
control dusts  (i.e., baghouse dusts) generated at facilities
owned by Norlite.  These facilities burn hazardous waste fuels
and the baghouse dust will either be recycled to produce the
aggregate product or be directly used as aggregate.
Specifically, you have asked for a determination that the
baghouse dust, when recycled, meets the exemption from RCRA
regulation for waste-derived products used in a manner
constituting disposal found at 40 CFR 266.20(b).  You have also
requested a determination that baghouse dust used as an
ingredient in the manufacture of concrete masonry is not solid
waste under 40 CFR 261.2(e)(1)(i).

     There appear to be four different scenarios for recycling
the baghouse dust that you outline in your letters, two in which
the material is used directly as a product, and two in which the
material is used as an ingredient to produce a product.  More
specifically, the scenarios are when the baghouse dust is used:
1) as a product used in a manner constituting disposal  (e.g.,
when used as an aggregate material for asphalt production),2) as
a product not used in a manner constituting disposal, 3) as an
ingredient in a process that produces a product used in a manner
constituting disposal, and 4) as an ingredient in a process that
produces a product that is not used in a manner constituting
disposal (e.g., when used as an ingredient of "block mix1*  for the
manufacture of concrete masonry that is not, in turn, used in a
manner constituting disposal).  Although the uses of the baghouse
dust presented in these four scenarios may seem very similar, the
regulatory determinations differ based on the ultimate
destination of the baghouse dusts or products into which they are
incorporated.  We have considered two issues raised by your
request:  1) whether the process or activity involving the
baghouse dust  is legitimate recycling  (i.e., not treatment or
disposal), and 2) whether the baghouse dust itself  is a  solid
waste or is excluded from being a solid waste because  it is  a
legitimate substitute for a commercial product or raw  ingredient.
                                                           Printed on R~ .

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     We should note at the outset that a final determination on
these questions must be made by the authorized State regulatory
agency or appropriate EPA Regional office.  As we understand it,
your request relates to the Norlite facility in New York; thus,
the regulatory determination must be made by the State of New
York.  We provide below a discussion of the factors that EPA
would use to evaluate whether the recycling of the baghouse dust
generated by the burning of listed hazardous waste fuels is
legitimate under Federal regulations; however, this discussion
does not constitute a site-specific regulatory determination for
the Norlite facility.

Scenario 1 — Use as a product in a manner constituting disposal

     The baghouse dust would be considered a waste-derived
product and, when used in a manner constituting disposal, subject
to the conditions placed on such products in the exemption
provided at 40 CFR 266.20(b).  It appears from the data you
supplied that the baghouse dust meets the applicable treatment
standards.  Thus the waste-derived product would be exempt from
further regulation, assuming it is otherwise determined to be a
legitimate product, which we discuss further in Scenario 2.

     In section E of your letter, you suggest that the "contained
in" rule is not applicable to the baghouse dust, and thus that
the baghouse dust is not derived from the listed wastes burned as
fuel in the aggregate kiln and thus is not a listed waste.  You
cite the Land Disposal Restrictions for First Third Wastes final
rule preamble discussion that presented the Agency's position
regarding the regulatory status of products produced using
hazardous waste fuels.  The Agency stated that such products are
not deemed to be used in a manner constituting disposal because
hazardous wastes were not used as ingredients to produce them.
The hazardous waste burned as fuel does not contribute to the
product as an ingredient, but rather fires the production
process.  53 FR 31198.  This preamble discussion is clearly not
applicable to the baghouse dust itself.  The baghouse dust is the
residue from burning the hazardous waste fuel; it is not the
product.  Thus, the baghouse dust itself would be a "derived-
from" waste.  However, since the dust itself appears to meet the
section 266.20(b) waste-derived product exemption, this rule
would not affect the status of the dust used as a product.

     In section D of your letter you also raise the issue of how
the Bevill rule affects "derived-from" wastes from mineral
processing.  As you note, EPA has stated that mineral processing
wastes removed from the Bevill exemption are considered "newly
identified" for the purposes of the land disposal restrictions.
While the preamble discussion states that characteristic wastes
from mineral processing which were removed from the Bevill
exclusion are not subject to treatment standards pending further

-------
rulemaking, it is silent on how and whether listed wastes used in
the process, either as a fuel or as an ingredient, affect the
wastes newly removed from the exclusion, including residues
derived from listed wastes.  We wish to clarify that the
aggregate kiln generates a residue, the baghouse dust, from the
treatment of listed hazardous wastes — wastes that are not newly
identified and for which treatment standards are applicable.  So,
the baghouse dust is subject to the land disposal restrictions
treatment standards^applicable to the listed wastes burned in the
aggregate kiln.  Nonetheless, since the data indicate that the
treatment standards are met, this issue is also moot.

Scenario 2 — Use mm m product in a Banner that does net
constitute disposal

     The baghouse dust would be considered a waste-derived
product, although there are no regulatory requirements for use in
a manner that does not constitute disposal (e.g., the land
disposal restrictions treatment standards do not apply).  We
believe that the State of New York should, however, evaluate the
baghouse dust to determine whether it is a legitimate product by
comparison with the aggregate that would normally be used.  Based
on your letter, we assume the "normal aggregate" would be the
multiclone dust (i.e., the typical fines product).  The data you
submitted indicate that the lead and cadmium concentrations in
the baghouse dust are double the concentrations found in the
multiclone dust.  The State should determine whether this is a
significant difference and, therefore, determine whether the
baghouse dust is not a legitimate product.

Scenario 3 — Use as an ingredient to make a product used in a
manner constituting disposal

     Use as an ingredient to make a product that is used in a
manner constituting disposal would not exclude the baghouse dust
from the definition of solid waste (see 40 CFR 261.2(e)(2)(i)).
The aggregate (as a product that is to be placed on the ground)
continues to be a derived-from waste and would be required to
meet the treatment standard.  Further, an evaluation of the
actual processing would be in order, i.e., a determination as to
whether the process would be considered legitimate exempt
recycling vs. fully regulated treatment or disposal by
incorporating the hazardous constituents into the product.  To
the extent that there are hazardous constituents found  in the
baghouse dust that are not found in the analogous raw material,
or that are found in the baghouse dust in significantly greater
concentrations, the process would be determined to be treatment,
unless a demonstration is made that the hazardous constituents
are necessary or beneficial to the process or product.  In  other
words, the hazardous constituents are being treated  rather  than
being used as ingredients, unless demonstrated otherwise using
the criteria mentioned above.  We should note that EPA would

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 generally use a  total  concentration analysis rather than a
 leachate analysis  to make  this  determination since we are
 comparing the waste  against  the raw material rather than their
 respective leachates.   A demonstration of  legitimate recycling
 would also need  to show that the baghouse  dust actually replaces
 a raw material (e.g.,  for  every ton of baghouse dust used, there
 is a roughly equivalent reduction of shale or other raw
 materials).   We  note that  your  letter asserts that the baghouse
 dust would be used as  a direct  substitute  for additional raw
 material consumption.

      In section  F, you cite  EPA's "indigenous principle" to
 suggest that the baghouse  dust  may not be  a hazardous waste when
 returned to the  kiln.   However,  absent such a policy EPA
 evaluates the baghouse dust  as  it would any secondary material
 being used as an ingredient.  The "indigenous principle" most
 closely captured in  the current regulatory language at 40 CFR
 261.2(e)(1)(iii)  (the  closed-loop exclusion) is not applicable in
 any instance where the product  is to be used in a manner
 constituting disposal  (see 40 CFR 261.2(e)(2)(i)).

 Scenario 4 r- Use  as an ingredient to make a product not used in*
 a manner constituting  disposal

      As in Scenario  2  above,  there are no  regulatory requirements
 for a waste-derived  product  that is not used in a manner that
 constitutes disposal (or burned for energy recovery).  If the
 baghouse dust will be  legitimately used as an ingredient to
 produce a product  that is  not used in a manner constituting
 disposal,  it would be  excluded  from the definition of solid
 waste.   The determining consideration, however, is whether the
 baghouse dust is a legitimate substitute for a raw material  (as
 discussed in Scenario  3).  If the baghouse dust is determined to
 not be a legitimate  substitute,  the production process would be
 considered treatment,  and  thus  would subject the aggregate kiln
 to RCRA regulation as  a treatment process  for the hazardous waste
'burned as an ingredient.

      Under Federal regulations,  regardless of the scenario, since
 the baghouse dust  appears  to meet the applicable treatment
 standards,  it could  be used  as  a waste-derived product or
 ingredient,  assuming that  it is marketed commercially and  is  a
 legitimate product.  When  the baghouse dust  is used  as an
 ingredient in the  manufacturing process, the State of New  York
 must determine:  1)  whether  the baghouse dust is a solid waste
 (i.e.,  whether the product will be used in a manner  constituting
 disposal)  and 2) whether the process  is legitimate recycling
 (i.e.,  whether the baghouse  dust is a legitimate substitute).

      We must again emphasize that the New  York Department  of
 Environmental Conservation must make  the determinations  regarding
 the status of baghouse dust  under each  of  these  scenarios  for the

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facilities operating in New York.  The role of EPA Headquarters
is to provide technical and policy support to the Regional
offices (or to the States through the Regional offices).  We have
provided you the factors that we would use to evaluate whether
the recycling of the derived-from baghouse dust is legitimate
under Federal regulations.  The key considerations are whether
the lead and cadmium concentrations are considered to be
significantly greater in the baghouse dust than in the raw
material and whethezv the process that uses the baghouse dust as
an ingredient would be considered treatment.

     If you have any further questions regarding the factors to
consider in evaluating the regulatory status of a secondary
material when recycled, please contact Mitch Kidwell at (202)
475-8551.   For a specific determination regarding the regulatory
status of the baghouse dust when recycled at Norlite's New York
facility,  you must contact the State regulatory agency.

                              Sincerely,
                              David Bussard, Director
                              Characterization and
                                  Assessment Division

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            UNITED STATES ENVIRONMENTAL PROTFCTION AGENCY     9493.1991 (04)
                             OCT  | |  |99I
David Wisch
RCRA Unit Supervisor
Hazardous Waste Section
Land Quality Division
Department of Environmental Control
State of Nebraska
301 Centennial Mall South
P.O. BOX 98922
Lincoln, Nebraska  68509-8922

Dear Mr. Wisch:                                                *

     Thank you for your letter of June 26,  1991 commenting  on  a
May 3, 1991 letter we received from Mike Bates of the  State of
Arkansas requesting clarification of the federal Resource
Conservation and Recovery Act (RCRA) Subtitle C regulations
governing the management of certain materials used  as  ingredients
in the production of fertilizers.

     Mr. Batebfetletter requested clarification of how  materials
and activities would be regulated under the federal regulations
in a situation involving the facts listed below.  In addition,
you request clarification on how such materials and activities
would be regulated if lead values were,recovered from  the
baghouse dust prior to its use as an ingredient in  fertilizer
production.
          •& generator in your ctat ^generates a baghouse  dust
          that is not a listed waste identified in  40  CFR 261.32
          or 261.33  (or, we assume, 40 CFR 261.31);

          The baghouse dust, which has a high concentration of
          zinc, fails the Toxicity Characteristic for  lead;

          The dust is a "sludge," as defined in 40  CFR 260.10
          because it is generated in an air pollution  control
          facility;  and

          The generator would like to send the baghouse dust to a
          producer that could use the dust as an ingredient in
          fertilizer for the zinc content.

                                                           ---
apply +»r> •m««ary«n.«»T%«- ^f  «ny pAWtfy^yCgfr^  f Jr-t I*"* E miinat 1 ! fl thgljt
Wist" be dade is whether the] material) in  ouestton is a solid    I

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         '    UNITED |TATK ENVIRONMENTAL PROTECTION AGEKOf.  .. .   '
waste,  since by  definition a Hazardous waste must Tirst be a
solid waste (40  CFR 261.3).   For materials that are recycled, 40
CFR 261.2(c)  defines those materials that are solid wastes.  If
the material is  both a solid waste and a hazardous waste,  the
waste management activities must then be evaluated to identify
applicable requirements.

      In the situation described by Mr. Bates,  the baghouse dust
would be a solid waste because it is a sludge exhibiting a
characteristic of hazardous waste which is to be used to produce
a product  that is applied to or placed on the land (i.e.,  used in
a manner constituting disposal).   (See 40 CFR 261.2(c)(1)(i)(B).)
Since the  dust exhibits the Toxicity Characteristic, it is also a
hazardous  waste  (40 CFR 261.3(a)(2(i)).

      Similarly,  if the baghouse dust were sent to a facility  at
which lead was recovered from the dust prior to shipment to the
fertilizer producer, the baghouse dust would also be a solid
waste under 40 CFR 261.2(c)(1)(i)(B)  because it continues  to  be a
characteristic sludge which is to be used to produce a
fertilizer.  The regulatory determination does not change  because
some portion of  the dust is to be used in a manner constituting
disposal,  even though another portion (the recovered lead)  will
not.  In other words,  the solid waste determination for a
recycled material is made at the point of generation of the
waste,  and .takes into account the entire waste recycling process,
not just the first step in a waste recycling train.  Any step
which involves use in a manner constituting disposal (or burning
for energy recovery) causes the waste to be a solid waste  from
the point  of generation on.   Any portions of the waste that are
separated  from the waste and recycled in ways that do not  involve
use constituting disposal (or burning for energy recovery)  may no
longer  be  solid  wastes (depending on applicable regulations).

      For completeness it should also be noted that the regulatory
status  of  the dust after the lead recovery step would depend  on
whether the dust exhibited any hazardous waste characteristics.
Thus, if the dust exhibited a characteristic it would continue to
be a solid and hazardous waste, again because it would be  a
characteristic sludge to be used in a manner constituting
"disposal.   On the other hand, if the dust did not exhibit  any
characteristics  after the lead recovery step,  it would not be a
hazardous  waste  at that point.

      Once  the regulatory status of a recycled material is
determined, the  applicable management requirements are specified
in 40 CFR  261.6.  For the characteristic sludge which is to be
used in a  manner constituting disposal,  the generator and  any
transporters would be subject to the applicable requirements  of
40 CFR  Parts 262, 263, and 268 (including use of the manifest),
and the recycling facility (storer)  to the applicable
requirements of  Subparts A through L of 40 CFR Parts 264 and  265

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                                3
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
268, 270, and 124.   (See 40 CFR §§ 261.6(a)(2)(i), 266.21, and
266.22.)  The recycling process itself (lead recovery and/or         s
fertilizer production), assuming it is legitimate^ would not be    
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                                4
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
overall approach to regulation of hazardous waste recycling
activities and to make changes to ensure that the regulations
encourage environmentally beneficial recycling while at the same
time ensuring protection of human health and the environment.
I understand your concern that the hazardous waste regulations
may, as in the case discussed, discourage recycling activities.
We expect to publish an Advanced Notice, of Proposed Rulemaking in
the Federal Register soon which lays' ou't- our current thinking on
this issue and solicits comment on a number of possible
approaches.  I strongly encourage you to review this notice and
give us your thoughts on the issues discussed.  The reactions and
ideas of state agencies implementing the RCRA program will be
very important to the success of this project.

     Thank you for bringing this issue to my attention.  Should
you require any further information or have any additional
questions, please call Mike Petruska, Chief of the Regulatory
Development Branch, at (202) 260-8551.

                              Sincerely,
                              Sylvia K. Lowrance, Director
                              Office of Solid Waste
cc:  Hazardous Waste Management Division Directors;  Regions I-X

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY .     9493.1991(05)
                          OCT I  |


N.6. Kaul, P.E.
Director
Division of Hazardous Substance Regulation
Mew York State Department of Environmental Conservation
50 Wolf Road
Albany, New York  12233

Dear Mr. Kaul:

     Thank you for your letter of June 21, 199^responding to a
May 3r 199^1etter we received from Mike Bates of the State of
Arkansas. -'Mr. Bates1 letter requested clarification of the
federal Resource Conservation and Recovery Act (RCRA) Subtitle C
regulations governing the management of certain materials used as
ingredients in the production of fertilizers.  Your letter
discussed application of the federal regulations to this
situation and raised several additional issues as well.
     ^'c»L*H«4.
     Mr. Baths' letter requested clarification of how materials
and activities would be regulated under the federal regulations
in a situation involving the following facts:

     •    A generator generates a baghouse dust that is not a
          listed waste identified in 40 CFR 261.32 or 261.33 (or,
          we assume, 40 CFR 261.31);

          The baghouse dust, which has a high concentration of
          zinc, fails the Toxicity Characteristic for lead;

     •    The dust is a "sludge," as defined in 40 CFR 260.10
          because it is generated in an air pollution control
          facility; and

     •    The generator would like to send the baghouse dust to a
          producer that could use the dust as an ingredient in
          fertilizer for the zinc content.

We will also address the case raised by other states in which
lead is first recovered from the dust prior to its use as an
ingredient in fertilizer production process.

     To determine how the federal hazardous waste regulations
apply to management of any material the first determination that
must be made is whether the material in question is a solid
waste, since by definition a hazardous waste must first be a

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
solid waste  (40 CFR 261.3).  For materials that are  recycled,  40
CFR 261.2(c) defines those materials that are solid  wastes.   If
the material is both a solid waste and a hazardous waste, the
waste management activities must then be evaluated to  identify
applicable requirements.

     In the situation described by Mr. Bates, the baghouse dust
would be a solid waste because it is a sludge exhibiting a
characteristic of hazardous waste which is to be used  to produce
a product that is applied to or placed on the land (i.e., used in
a manner constituting disposal).  (See 40 CFR 261.2(c)(1)(i)(B).)
Since the dust exhibits the Toxicity Characteristic, it is also a
hazardous waste (40~CFR 261.3(a)(2(i)).

     Similarly, if the baghouse dust were sent to a  facility  at
which lead was recovered from the dust prior to shipment to the
fertilizer producer, the baghouse dust would also be a solid
waste under 40 CFR 261.2(c)(1)(i)(B) because it continues to be a
characteristic sludge which is to be used to produce a
fertilizer.  This is the case because some portion of  the dust is
to be used in a manner constituting disposal, even though another
portion (the recovered lead) will not be used in such  a way.   In
other words, the solid waste determination for a recycled
material is made at the point of generation of the waste, and
takes into account the entire waste recycling process, not just
the first step in a waste recycling train.

     For completeness it should also be noted that the regulatory
status of the dust after the lead recovery step would  depend  on
whether the dust exhibited any hazardous waste characteristics.
Thus, if the dust exhibited a characteristic it would  continue to
be a solid and hazardous waste, again because it would be a
characteristic sludge to be used in a manner constituting
disposal.  On the other hand, if the dust did not exhibit any
characteristics after the lead recovery step, it would not be  a
hazardous waste at that point.

     Once the regulatory status of a recycled material is
determined, the applicable management requirements are specified
in 40 CFR 261.6.  For the characteristic sludge which  is to be
tised in a manner constituting disposal, the generator  and any
transporters would be subject to the applicable requirements  of
40 CFR Parts 262, 263, and 268 (including use of the manifest),
and the recycling facility (storer) to the applicable
requirements of Subparts A through L of 40 CFR Parts 264 and  265
268, 270, and 124.  (See 40 CFR §§ 261.6(a)(2)(i), 266.21, and
266.22.)  The recycling process itself (lead recovery  and/or
fertilizer production), assuming it is legitimate/, would not be
subject to Subtitle C regulation.            .    (•

     Once the fertilizer is produced, if it meets the'  conditions
of 40 CFR 266.20(b) (i.e., is produced for the general public's

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                                              . I
             UHITED STATES ENVIRONMENTAL PROTECTION AGENCY
use and meets the applicable  land  disposal  restrictions treatment
standards in 40 CFR Part 268 , Subpart  D) , the  fertilizer is not
presently subject to regulation  (although under  40  CFR
261.2(c) (1J (i) (B) the  fertilizer remains a  solid waste,  and 40
CFR 268. 7 (b) (7) recordkeeping requirements  would be applicable).
If the fertilizer did  not meet the conditions  of 40 CFR
266.20(b), use of the  product would be subject to 40  CFR 266.23
 (i.e., full Subtitle C regulation).

     Please note that  fertilizers  produced  using solid wastes are
solid wastes under 40  CFR 261.2 (c) (1) (i) (B) .  Although,  as  you
noted in your letter.,  40 CFR  261.2(c)(ii) does include both
commercial chemical products  that  are  listed and those that
exhibit characteristics,  this provision applies  only  to non-
waste-derived products.   Fertilizers that are produced using
solid wastes continue  to be solid  wastes under 40 CFR
     There are  several additional points that I would  like to
make on this topic.  First, I believe that some background on the
development of  the use constituting disposal regulations will
shed some light on the reason the regulations are structured as
they are.  When these regulations were promulgated on  January 4,
1985 (50 IE 614), the preamble explained that RCRA Subtitle C
jurisdiction unquestionably encompasses wastes that are placed on
the land (used  in a manner constituting disposal) because this
type of recycling is so similar to normal forms of waste
management (i.e., land disposal).  In fact, placement  on the land
is one of the activities that Congress most clearly intended to
control under RCRA.  As with any other waste that is to be
managed in a manner that is analogous to disposal, generation,
transportation, and storage of any wastes that are  (even in part)
to be used to produce waste-derived products are regulated  (as
are those that  are used directly on the land) .

     Second, there was a discussion in the January 4,  1985
Federal Register notice explaining that in the future, the Agency
envisioned developing a more tailored regulatory system for
waste-derived products recycled by placement on the land.  Such  a
^system would take into account the safety of the product  (e.g.,
levels of hazardous constituents in the wastes, likely routes of
exposure, etc.).  We will shortly be proposing a rule  that will
allow producers of waste-derived products placed on the land to
make such a demonstration.

     In your letter you also raised the issue of how the use  (or
fate) of hazardous constituents in a recycling process should be
viewed when evaluating the legitimacy of the process.  We agree
with you that this is an important consideration in determining
whether a recycling process is legitimate, and thus whether
recycling exemptions are applicable (e.g., 40 CFR §§ 261. 2 (c) (3),
261.2(c)(4), 261. 2(e), 261.4(a)(8), and 261. 6).  We have

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                   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      addressed this issue in the past in several preambles  (see  the
      January 4, 1985 Federal Register (50 FR  638,  648-9)  and  the
      January 8, 1988 Federal Register (53 FR  526-7)) and  in guidance
      to the Regional Offices (see the enclosed April 26,  1989
      memorandum from Sylvia Lowrance to EPA's Hazardous Waste
      Management Division Directors in Regions I-X).  For  example,
      criteria to be used to evaluate the legitimacy of recycling
      include the following:

                Does the waste contain Appendix VIII constituents not
                found in the analogous raw material/product  (or at
                higher levels)?
                         «*•
           •    Does the waste exhibit hazardous characteristics  that
                the analogous raw materials/product would  not?

           •    Are the toxic constituents actually necessary  (or of
                sufficient use)  to the product or are they not
                necessary for the product?

           Further, as you may know, we are currently undertaking a
      larger effort to reevaluate the overall approach to  regulation of
      hazardous waste recycling activities and to make changes to
      ensure that the regulations encourage environmentally beneficial .
      recycling.  We expect to publish an Advanced Not.ice^of Proposed
      Rulemaking in the Federal Register soon which fa ye oiifc- our
      current thinking on this topic and solicits comment  on a number
0     of possible approaches.  One of the iscuos-Lu be Qisuubsud  in Jthe
'\     h~5tll£e^.iB-ways to improve implementation of the hazardous waste
      regulations by more clearly defining sham recycling  and/or  by
      requiring persons claiming recycling exemptions to notify the
      implementing agency of their activities.  I strongly encourage
      you to review this notice and give us your thoughts  on the  broad
      issues discussed as well as on the sham recycling issue.  The
      input of state agencies implementing the RCRA program will  be
      very important to the success of this project.

           Thank you for bringing these issues to my attention.   Should
      you require any further information or have any additional
      questions, please call Mike Petruska, Chief of the Regulatory
      'Development Branch, at  (202) 260-8551.

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

      Enclosure

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9494 - HAZARDOUS
WASTE BURNED FOR
ENERGY RECOVERY
Part 266 Subpart D
                 ATKl/l 104/50 kp

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       OCT  I   886                                     9494.1985(0;
Mr. Thomas A. Waite
Senior Attorney
Boeing Computer Services
P.O. Box Box 24346
Seattle, WA  98124

Dear Mr. Waite:

     This letter is in response to your letter dated August
30, 1985, and is a follow-up to our previous telephone
conversations regarding the regulatory status of a mixture of
lubricating oil and two jet airplane fuels which are sent to
a  refinery where the fuel mixture is processed to produce
petroleum products.  In particular, you indicate that in
performing repaires on F-4 type airplanes, the fuel contained
in the fuel cells (JP-4-type fuel) is first drained.  To remove
the remaining fuel from the fuel cells, a mixture of JP-5
type airplane fuel and lubricating oil is then injected into
the fuel cells to decrease the volatility of any JP-4 type
fuel remaining in the fuel cells; put another way, the JP-5/
lubricating oil mixture is used to remove any JP-4 that remains
in the fuel cells.  This JP-5/lubricating oil mixture is used
until the flashpoint of the mixture is lowered to approximately
120* P.  At this point, the material is pumped to a tanker
truck and sent to a nearby refinery where the fuel mixture
is placed in the refinery process to produce petroleum products.

     you believe this mixture (when sent to the refinery) is
an off-specification, non-listed, commercial product and as
such would not be subject to regulation when sent for
reclamation.  (Your letter lays out your basis for making
this argument.)  I cannot agree with you.  As we discussed
previously, the JP-5/lubricating oil mixture is used like a
solvent to remove the remaining JP-4 from the fuel cells; as
such, the contaminated JP-5/lubricating oil is a spent material--
a material that has been used and as a result of contamination
can no longer serve the purpose for which it was produced
without processing.I/  Spent materials that are hazardous^/
I/  Even if you are correct that the JP-5/lubricating oil
    mixture is not a solvent, this mixture would still be
    defined as a spent materal.

2/  As you indicate in your letter, this mixture (when sent
    to the refinery) has a flash point about 120*P and thus,
    would exhibit the ignitability characteristic.

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(whether or not they are listed) are defined as solid wastes
when they are used to produce a fuel.  Therefore,  this material
is subject to EPA's authority under the hazardous  waste rules.3/

     However, based on your letter and my re-evaluation of
the facts, this material is currently exempt from  regulation.
In particular, secondary materials that are used to produce a
fuel are only subject to regulation if the material is either
listed or a sludge.  See $266.36.  Since this material is a spent
material that is hazardous only because it exhibits a characteristic,
the material is currently exempt from regulation,4/  Thus,  the
material can go from your maintenance facility to the refinery
without a manifest and the refinery need not get a storage
permit, at this tiroe.5/  You should be aware, however, that
this exemption is only temporary) the Agency expects to make
final  its ruleiuaking regarding burning and blending (proposed
on January 11, 1985) which is likely to remove this exemption.
At that time, the transport of this material and the storage
of it at the refinery may subject it to regulation.

     I hop* this answers your questions; pleas* feel free to
give me * call if I can be any further assistance.

                       Sincerely your*.
                   Matthew A. Straus, Chief
                 waste Identification Branch

ccs  Dennis Murphy, Kansas Department pf Health and the Environment
     M. Sanderson, EPA Region VII
3/  As you are aware, this interpretation is under the Federal
    hasardous waste rulest the States' regulations may not
    reflect this interpretation until they adopt the January 4
    rulemaklnf-.

4/  Since) thim material contains- approximately 80 percent JP-5
    typ«-airplane fuel and only 20 percent, lubricating oil,
    this material is not, a used oil.  Thuav this material would
    not come under the used oil exemption 1m §2«1 .6(a)(3) UiU .
5/  In discussions with- beta State, and Regional personnel, I
    have; learned that this material  1» no> longer being sent.
    to • petroleum refinery.  If this, material is not being
    used a» a fuel or used to prodvc* a  fu+lv the interpretation
    given is- no longer  correct,  to* would need to. consult the
    January 4 rules to  determine the regulatory status o£ the
    JP-Vlubricating oil*mixture.

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                                                    9494.1985(02)
              RCRA/SUPERFUND HOTLINE MONTHLY REPORT

                            JULY 1985

  ON-SITE  REUSE  OF  API  SEPARATOR SLUDGE  TO  PRODUCE NEW PETROLEUM



K051 and HSWA

1.   Section 3004(q)(2)(A) of the Hazardous and Solid Waste
     Amendments of 1984 (HSWA) states that the provisions
     regulating hazardous waste used as fuel "shall not apply to
     petroleum wastes containing oil which are converted into
     petroleum coke at the same facility at which such wastes
     were generated...unless the coke product exhibits a
     characteristic of hazardous waste."  Does this mean that
     K051 (API Separator Sludge) could be reused on-site to
     produce new petroleum coke?

          Yes; petroleum coke produced from the on-site
          reuse of K051 (or any other listed petroleum
          refinery waste)  is exempt from the labeling
          provisions of §3004(r) and any standards
          applicable to hazardous waste fuel, unless
          the coke product exhibits a characteristic of
          hazardous waste.

          Source:   Bob Holloway (202) 382-7936
        This has been retyped from the original document.

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                                                       9494.1985(03)
                                  OCT
Or. John P. Chadbourne
Director of environmental services
General Portland,  Inc.
P.O. Box 324
Dallas, Texas   75221

Dear Dr. Chadbourne:

     It was a pleasure meeting with you  and Art Helms tetter
last week.  As  we  discussed, you requested an  interpretation
of the hazardous waste rules regarding the regulatory  status
of waste-derived fuels (that are produced by waste  fuel
blenders and processors) that are burned in a  cement kiln for
energy recovery.   As I understand, the following are the
facts you described to mei

     •  Haste-derived fuels will be used to replace) coal
        which is currently burned in * ceswnt  kiln  (ceswnt
        kilns are  defined as industrial  furnaces)i

     •  These waste-derived fuels will be received  only frosi
        intermediate wast* fuel blender* and processorsi

     •  The waste-derived fuels have a heat content greater than
        10,000  BTU's/lb.j in addition, each waste atreasi used
        to prepare these waste-derived fuels have a heat
        content greater than 6,000 BTO*s/lb.|l/ and

     •  varying aaounts of "Appendix VIII hazardous constituents*
        are expected to be present in the waste-derived fuels.

     in addition,  General Portland plans to build a 150,000
gallon tank, to  store the waste-derived fuel prior to its use
as a fuel*
I/  under the statement of Knforosaeat Policy issued oa January IS,
    1M1 (printed at 4t Fft lllSTy March,  if,  1M3  aad guidance
    provided to IPA Begloa XT oa February  at aad  July 9, 1§§4
    (attached), if it can be  sbova that  eaca hazardous vasts
    that is blended into the  fuel hss>*  substantial neat value-
    as generated, the waste* is a legitismte  fuel  regardless of

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     Under these circumstances, the waste-derived tuela to be
received Oy General Portland are currently exempt froo
regulation.2/  In particular, under the January 4, 1985
recycle/reuse regulations, we decided, as an interim measure,
to retain the distinction that existed in the May 19, 1980,
hazardous waste regulations between listed wastes and sludges
and unlisted hazardous waste fuels with only the Corner being
regulated.  The January 4 rules also exempts from regulation
all waste-derived fuels that are produced by a person other
than the wastes generator or burner.  Thus, hazardous waste
tuels leaving intermediate waste fuel blenders and processors
are exempt from regulation at this time,  bee 40 CPK $266.30
and 266.36; see also 50 PR 632, January 4, 1985.  Consequently,
the waste-derived fuels to be sent to your proposed site in
Demopolis, Alabama would not need to be manifested; in addition,
the 150,000 gallon storage tan* that will be used to store
the waste-derived fuel does not need to be permitted under
RCRA.3/

     A* you are aware, however, these exemption* are temporary.-
on January 11, 1985, EPA proposed to modify its regulations
with regard to waste and waste-derived fuel* that are used as
• fuel or used to produce) • fuel.  See 50 PA 1684.  This
proposal is expected to be finalised this Tall* once it is,
these waste-derived fuels nay be subject to SOB* regulation*
footnote 1 cont.

    the concentration of low energy constituents (i.e.,
    halogenated compound* like chlorinated solvents) in each
    waste or in the blended fuel*  To determine which hazardous
    waste* have a substantial heat value, EPA will use as a
    benchmark those waste* with a heating value greater than
    low energy commercial fuel* *uch a* wood (5,000 to 8,000
    BTU/lb) or" low grade *ubbitualnou* coal (8,300 BTU/lb).

2/  Although the** waste-derived fuel* are currently exempt
    from regulation, these waste-derived fuel* are solid and
    hazardous wacte* (if they themvelve* are hasardoua) and
    potentially *ubject to EPA'* control.

    Although thee* waate* are currently exempt under the
    P*d*ral hasardou* waat* rule*, th* Stat* of Alabama i*
    fr*« to establish polioie* and write regulation* which
    ar* more) *tringent than the) C*de>ral requirement*.

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     Piraft* feel free to give me a call if I can be of any
further assistance; my telephone number is (202) 475-8551.

                       Sincerely yours,
                   Matthew A. Straus, Chief
                 Waste identification Branch
cc:  Beverly Spagg (EPA Region IV)
     Joseph Broadvater (ADLM)
     Bernard Cox, jr. (ADEM)
     David Suasman

Attachment

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                                                              9494.1986(01!
     9 FEB" 86
 ..r.  L.  Larson,  Esq.
 nt. torney
 LTV  StoGl  Cor.ipany
 LTV  Sf.eel  3uil .-in.j
 25 t.'est Prospect Avenue
 Cleveland, Ohio  44115

 Dear Mr. Lawson:

     This  is  in  response  to your January  9,  1986,  letter
 requesting answers to several questions pertaining to  provisons
 of our November  29, 1985,  final rule  concerning  the burning  of
 hazardous waste  fuels.

     As I indicated in our January 15  phone  conversation,  our
 response to your questions is as followsi

     Questions 1 and 2 (paraphrased).  Can LTV Steel notify  EPA
 of its burning activities  without requesting, or being deemed to
 have requested,  interim status  for subsequent use  or storage of
 Cad«nc« Product  312?  If y«a, would storage  of Product 312 after
 January 29 subject LTV Steel to any substantive  obligations  under
 the RCRA hazardous waste storage facility standards, including
 recordkeaping, reporting,  or closure*  requirements?

     Response*  The notification regarding waste-as-fuel  activities
 required of persons who are marketing  or  burning hazardous waste
 fuel (like Product 312) on January 29, 1986, in  no way implies
 that a person is requesting, or intends to request,  interim  status
 for subsequent storage of  the fuel.  The hazardous waste  fuel
 storage standards become effective on  Hay 29, 1986,  for newly
regulated facilities such  as those storing waste-derived  fuels
 like Product 312.  Existing burners who store such hazardous waste-
derived fuels after May 29 must coiriply with  the  interim status
storage otandards.  (New facilities must obtain  a  storage facility
permit prior to initiating storage after May 29.)   If  LTV Steel
terminates Product 312 storage activities prior  to May 29, LTV
Steel would not.be subject to any RCRA standards for such storage.
             . .if
     Question^3  (paraphrased).  Can LTV Steel store Product  312
after March 31, 1986, without requesting, or being deemed to have
 requested,  interim status, and without incurring any obligations
under the RCRA storage facility standards.   This question is

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asked in  light of the  fact that the RCRA transportation require-
ments become effective for newly regulated hazardous waste-derived
fuels like Product 312 on March 31, and the RCRA manifest system
requirements specify that shipments must be sent to designated
facilities that are permitted to handle the feaste  (i.e.* in
interim status or have a RCRA permit).

     Reaponge.  You are correct in noting that  for the two month
period between March 31 and May 29, some hazardous waste fuels,
like Product 312 in your situation, will be transported under the
manifest  system to facilities that are not permitted to store the
hazardous waste fuel.  In our efforts to implement the manifest
system AS soon as EPA  identification numbers could be assigned
subsequent to notification, w« inadvertently omitted regulatory
language  in the November 29 rule that would, during the two month
period, explicitly!  (1) allow hazardous waste  fuels to be shipped
to facilities that have notified EPA regarding  their waste-as-fuel
activities but that are not yet^-subject to the  interim status or
permit standards; and  (2) require such receiving facilities to
sign and keep copies of the manifest.

     EPA has set a precedent for allowing hazardous waste subject
to the manifest requirements to be sent to designated facilities
that are  not subject to interim status or permit standards.  See
50 FR 652 (January 4,  1985) and $260.10 (amended definition of
•designated facility") regarding transport of recycled materials
to recycling facilities that introduce the waste directly into
the recycling process without prior storage, and that, are other-
wise not! subject to RCRA treatment, storage, or disposal facility
interim status or permit standards.  Similarily, EPA intends that,
during the two month period in question, owners and operators of
facilities not yet subject to the hazardous waste  fuel storage
standards, like LTV's  Product 312 storage facilities, notify EPA
regarding their waste-as-fuel activities and sign  and retain
copies of manifests.   If LTV Steel continues storing Product 312
after March 31 but ceases prior to May 29, LTV  Steel is not
subject to RCRA storage standards with respect  to  such storage.

     I hope that this  addresses your concerns.

                                    Sincerely,
                                     Robert  nolloway
                                     Lnvironnental  Lnqineer
      .li.4.il..: ."-toil, L5->
     ot.fcv-jii silver:--*-.:,,  ;-

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                                                            9494.1986(02)
 i
 3
 r
:/
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON O.C  20460
                                                        j ^ " t ~ j 7 c
                                               j Ji. r -.-. . ' r = i -._ii,- F J j£
MEMORANDUM
SUBJECT:   Implementation  of  the Waste-As-Fuel  Rules  at  DoD
           Facilities

FROM:
TO:
         Marcia E.  Williams
         Director
         Office of  Solid Waste (WH-562)

         Hazardous  Waste Division Directors, Regions I-X
     The
think is
Novembe r
oils and hazardous
that we pass on to
attached).  If you
Bob Holloway of my
        Department  of  Defense (DoD)  has developed what we
        an  effective  and  efficient  approach to implement the
        29,  1985, waste-as-fuel  final rules applicable to used
                 wastes  generated  at military bases.  DoD asked
                 you  an  explanation of their approach (copy
                 have questions or  comments, please contact
                 office  at 382-7917, or Joe Kaminski, Office of
the Secretary of Defense, at  (202) 653-1273.

     The was te-as-fuel rules  regulate marketers  and  burners  of
hazardous waste and off-specification used  oil fuels.   Military
bases typically generate used oils,  and sometimes  generate  hazardous
wastes, either of which may be sent  off site  for ultimate  use  as
fuel, or burned on site.  When used  oil or  hazardous waste  is
shipped off site for use as fuel, the marketing  transactions are
typically handled by a DoD unit called the  Defense Reutilization
and Marketing Service (DRNS) or one  of its  four  regional offices
referred to as DRMR's.  The DRMS or  DRMR's  take  responsibility
for the
case of
      waste  fuel,
      a  spill.
                    including,  for example,  responsibility in
     The essence of the  attached explanation  of  DoD's  implemen-
tation approach is that the  DRMS or  DRMR's
                                          will comply with the
                                          are ordinary generators
                                            The  ORMS  or DRMR's
marketer requirements.  The military  bases
not subject to the marketer requirements.
will use their business address  as  "location"  on  the notification
for.T.  Invoices for off-specification used  oil and  manifests  for

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hazardous waste fuels will, however, indicate the address of
the shipping facility — the military base generating the
waste -- according to our rules.

     DoD notes that when a military base burns waste fuels,
the base will notify as a burner and comply with the burner
requirements.

     DoD's approach is acceptable because the DRMS or DRMR's
act as independent brokers that take responsibility for the
waste fuel, and, thus, are subject  to regulation as marketers.
The military base is an ordinary generator, not a marketer.
This situation is analogous to situations in the private sector
where a person is subject to regulation as a marketer if he
takes title to the waste fuel,  (Except, however, generators
and initial transporters who do not market directly to burners
are exempt from the marketer requirements.)  Thus, brokers,
transporters, and others who take title to used oil or hazardous
waste fuels are regulated marketers.  Transporters who take
physical possession but not title to the waste fuel, however,
are agents to a regulated marketer  (e.g., a generator, processor,
or burner) and are not themselves marketers.

At tachment
cc:  Carl Schafer, Jr., DoD
     Gene Lucero, OWPE

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 C N AND
 "" 13
Ms. Marcia E. Williams,  Director
Office of Solid Wasta
U.S. Environmental Protection  Agency
401 M Street S.W.
Washington, DC 20460

Dear Ms. Williams:

On January 30, 1986, a meeting was  held  between  Mr. Robert
Holloway of the Waste Management and Economics Division  of  the
Office of Solid Waste and Mr.  Joseph Kaminski of  the  Defense
Environmental Leadership Project, Environmental  Policy
Directorate, Office of the Assistant Secretary of Defense to
determine the application of the terms  "generator," "burner," and
"marketer" of used oil and hazardous waste  fuel  to the Department
of Defense (DoD).  The enclosed explanation confirms  the outcome
of the meeting and describes actions to  be  taken  by DoD  to  comply
with the reporting requirements of  40 CFR 266.

The procedure is consistent with protection of human  health and
the environment, identifies  specific responsible persons and
miraimizes administrative overhead.  Your assistance in advising
the EPA Regions of the DoD procedure would  be helpful in
effecting timely and accurate  notification.  EPA cooperation  in
this matter is greatly appreciated.

                                 Sincerely,
                                                   W-  P
                                 Cart J.  Schafeb-^t.
                                 Director,  Environmental  Policy

Enclosure

cc: EPA Office of Federal Activities  (A-104)
              Excellent Installations - The Foundation Of Defense

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           Explanation of Notification Procedure that
            the Department oc Defense  (DoD) Will Use
                     to Comply With 40 C:R  266
    The Defense Reutilization and Marketing Service  (DRMS),
headquartered at Battle Creek, MI is a primary level field
activity of the Defense Logistics Agency  (DLA).  DRMS is
responsible under the Federal Property and Administrative
Services Act of 1949  (FPASA), as amended, for disposal of excess
OoD "personal property" including used oil.  DRMS therefore
assumea primary responsibility within OoD for marketing used oil
fuel and hazardous waste fuel as required by 40 CFR  266.  DRMS
conducts business through four regional offices within the
purview! of 40 CPR 266.  These Defense Reutilization  and Marketing
Regions (DRMR) are located at Memphis, TN, Columbus, OH, Ogden
UT, and Camp H. M. Smith, HI.


    Used oil generators at Military Bases turn administrative
control and sometimes physical custody of their used oil over to
DRMS on a standard form, DO 1348-1.  Acting similar  to civilian
"brokers," the DRMR's or DRMS headquarters execute contracts for
transfer of used oil to users of used oil or hazardous waste fuel.
Authority to enter into and documentation of transfers currently
exists at DRMS or its DRMR's.  Therefore, DRMS and its DRMR's
will notify as "other marketers* on EPA form 8700-12, using their
business address as "location."  DRMS headquarters or, DRMR's
will add to their recordkeeping applicable user notifications,
proofs of used oil fuel quality, copies of manifests or invoices
and will comply with all other marketer requiremens  of 40 CFR
266.


    On occasion, DRMR's delegate authority to market used oil to
field level agents at Defense Reutilization and Marketing offices
(DRMO) located on Military Bases.  In addition, used oil is often
transferred, under the FPASA, from a DRMO to other federal
agencies and state governments through the General Services
Administration (6SA) acting as a subsequent marketer.  If used
oil fu«l or hasardous waste fuel marketing is done from an
individual DRMO which maintains the documentation required by 40
CFR 266, then the DRMO will separately identify as "other
marketer."  The DRMO will use the address of the Military Base
as location and the Base's EPA "Identification of Hazardous Waste
Activity" number if previously assigned.  The appropriate
official of the DRMS will sign the form.

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    DoD Military Bases are generators of used oil or
hazardous waste fuel and will not notify as marketers
unless they transfer used oil fuel or hazardous waste fuel
outside'of DoD without going through DRMS.  DoD Military Bases
that claim the exemption for using used oil fuel that meets 40
CFR 266 specification or burn off-specification used oil fuel or
hazardous waste fuel will notify aa "burners" on EPA form
8700-12 and assure that they meet all other applicable criteria
of 40 CFR 266.  The Base's "Identification of Hazardous Waste
Activity" number will be used if previously assigned and an
appropriate official of the Base or its Command will sign the
form.


    The procedure described herein applies only to the
provisions in 40 CPR 266 on marketing and burning of used oil
and hazardous waste fuel.  Any management activity such as
generation, storage, transportation and disposal of used oil that
is hazardous waste regulated under 40 CFR 261-265 and 270 or 271
shall be adhered to by the DoO Component to which the regulation
applies.


    This procedure must be reviewed by EPA and DoD and
re-established or revised, or it is automatically cancelled on
the effective date of 40 CFR 266 revisions promulgating "Recycled
Used Oil Standards" or 40 CFR 261 revisions "Listing" used oil as
hazardous waste, which were proposed on November 29, 1985.


    This is an administrative procedure only and in no way
relieves or alters the requirement for the Department of Defense
to comply with all applicable regulations implemented in
accordance with the Federal Solid Waste Disposal Act aa amended,
42 USC 6901 et aeq.

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  3.  Hazardous  Waste  Fuel                                         9494.1936(03,

     An  iron  blast  furnace  is  used  to smelt  iron ores to product
     (pig  iron)  suitable  for use  in makircj steel.  The blast fur
     with  both  virgin fuel  oil and  a fuel produced fron listed hazardous sner.t
     'solvents.   The hazardous  waste derived  fuel is produced by a nrocessor who
     neither  generates nor  burns  the fuel.   How would the hazardous waste
     derived  fuel be  regulated under the  final rule on burning and blendinn of
     hazardous  waste  which  was oronulgated  in the Federal Register on  November
     29, 1985 (50 FR  49164)?

        The  final burning  and blending  rule of November  29,  19*35 (50  FR 49154)
        removed an exemption  in  §266.30(a)  that was applicable  to  this"
        situation which  was promulgated  on  January 4,  1985 (50  FR  614).
        Formerly, §266.30(a)  exempted  frcrn  regulation  "fuels  produced from
        hazardous waste  by blending or other treatment by  a person who
        neither generated  the waste nor  burns the fuel"  provided that the
        fuel was "burned for  energy recovery in any boiler or industrial
        furnace that is  not regulated" as a hazardous waste  incinerator,
        with some specific exceptions.   The November 29,  1985 final  rule  (50
        FR 49164) removed  the §266.30(a) exemption and specifies in  amended
        §266.30(a) that  Subpart  D  of Part  266 applies  to "hazardous
        waste  fuel"  burned for energy  recovery in any boiler  or  industrial
        furnace that is  not regulated  as a  hazardous waste incinerator.
        "Hazardous1 waste fuel" is  defined  in amended §266.30(a)  to include
        both hazardous waste  and "fuel produced fron hazardous waste  by
>       processing,  blending, or other  treatment" which  is burned  for
5       energy recovery  in the above specified units.

5       In this example,  the  unit  used  for  burning hazardous  waste fuel  for
w       energy recovery  is a  blast furnace. Section 260.10  (50  FR 614) defines
x       the  term industrial furnace to  include blast furnaces.   Thus, the
x       hazardous waste  produced fuel  has been excluded  from  regulation  in
|J       the  past due to  the former §266.30(a) exemption  for fuels  produced
O       from hazardous waste  by  a  third  party processor  which are  burned  for
*    vo  energy recovery  in any boiler or industrial furnace.
u    so
M    HE  Since  the November 29, 1985 final  rule  (50 FR  49164)  removed the
S     «  former $266.30(a)  exemption for fuels produced from hazardous waste
s    J  .and  amended  S266.30(a) to  include  "hazardous waste fuels" in the
        group  of wastes  regulated  by RCRA,  all previously exempted hazardous
z       waste  fuels  are  now subject to regulation.
S
0;       The hazardous waste  fuel  in this case becones subject to the
w        regulations of Subpart D of Part 266 as of the appropriate effective
D       date of the November  29,  1985 final rule (50 FR 49164).  The owner
^       of the blast furnace  is a burner of hazardous waste fuel and will be
<       subject to the S266.35 standards applicable to burners of hazardous
O       waste fuel.   This section includes prohibitions on burning hazardous
a      waste fuel in other  than specified units, notification  requirements,
         required  notices, recordkeeping requirements, and storage controls.
        The storage controls, found in S266.35(c), require that a facility
        have interim status or a final permit for the storage of hazardous
        waste fuels, and subject the facility to the applicable provisions
        of Parts  265 or 264,   270,  and 124.  The applicable effective dates
         include notification by January 29, 1986; use of manifests,  certif-
         ications,  and recordkeeping by March 31, 1986; and submission of
        Part A permit applications or amended Part A permit applications
        by May 29,  1986.

        Source:    Bob Holloway   (202)  382-7936
        Research:   Charlotte Mooney

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               UNIT  STATES INVIRQHMiNTAL PROTECTIf  \CENCY      9494.1986(04)
                                 I!  1996
Guinn  Doyle
Chief/ Hazardous Waste  Management  Branch
Division of  Land Pollution  Control
Indiana State  Board  of  Health
P. 0.  Box  1964
Indianapolis,  IN   46206-1964

Dear Guinn:

     This  is  in response  to your March 27, 1966, letter regarding
the regulatory status of  the  hazardous waste fuel, Cadence Product
312, prior to  the  effective dates  of the November 29, 1985,
marketer and burner  rules,  and  the January 4, 1985, redefinition
of solid waste.

     Your  understanding of  the  applicability of these rules to
Cadence Product 312  is  correct.  Prior to the January 4, 1985,
redefinition of solid wastes, listed wastes and sludges used
directly as  fuel were subject to RCRA storage and transportation
standards.   Hazardous waste-derived fuels produced by processing,
blending,  or other treatment  of  listed wastes or sludges, were,
however, exempt from regulation.  This exemption was considered
temporary  and  was  provided  because we had not evaluated the hazards
posed  by such  recycling and appropriate regulatory alternatives.
Thus, waste-derived  fuels were  cosidered to be recycled (and
exempt) once they  were  processed or blended.

     The Environmental  Protection  Agency (EPA) had intended for
this (temporary) exemption  to apply to waste-derived fuels pro-
duced  by third-party marketers  --  off-site facities where wastes
collected  from multiple generators were processed before shipment
to a burner.   It became clear,  however, that many qenerat.ors who
burned their waste on site  or who  shipped their wastes -lirectlv
to a burner were claiminn the exemption oven if the only blending
tnoy did occur?-* as  « result  of  nipino multiple wastes to  a sinole
storai
-------
     We  understand  that  Cadence  Product  312  is  produced  by  blending
 listed solvent recovery  still bottoms generated at the Product  312
 production  facility with wastes  received  from other generators.
 Thus, persons who stored and  transported  Product  312 prior  to July 5,
 19d5 (the effective date of the  solid waste  redefinition),  could
 have claimed the exemption for waste-derived fuels.  After  July 5,
 19d5, however, Product 312 has been  subject  to  RCRA storage and
 transportation standards under federal regulations, although not  in
 authorized  states (except by  virtue  of state law,  if applicable).

     The November 29,  1985, marketer and  burner administrative
 controls; eliminated the  remaining exemptions for  the storage and
 transportation of hazardous waste fuels.   That  rule subjects (for
 the first time) nonsludge characteristic  waste  fuels and waste-
 derived  fuels produced by third-party marketers to storage  and
 transportation controls.  Thus,.once the  November 29,  1985, rule  is
 effective,  the storage and transporation  of any hazardous waste
 used as .a fuel or used to produce a  fuel/  and any fuel produced
 from any ^hazardous waste, is  regulated.   The transportation controls
 for the  newly regulated  fuels became effective  March 31, 1986, and
 the storage controls become effective May  29, 1986.

     I am sure you  are aware  that producers of  Product 312  may  not
 have considered the material  to  be a hazardous  waste fuel prior to
 November 29, 1985.  Cadence has  argued with EPA since  late  1984
 that Product 312 is a material used  as an  effective substitute  for
 coke without providing significant energy  to a  blast furnace.
 Cadence  therefore argued that Product 312  is not  a solid waste  and,
 thus, is not subject to  RCRA  rules.  (See  §261.2(e).)  As you know,
 EPA explained in the preamble to the November 29,  1985,  rule why  we
 disagree with that  interpretation and conclude  that Product 312 is-
 subject  to  regulation as hazardous waste  fuel.  Nonetheless, persons
 who store and transport  Cadence  Product  312 had no absolute way of
 knowing whether EPA would agree  with their position.   Once  they
 learned  of  our interpretation, however,  they should have taken
 action to comply with the storage and transportation standards  as
 quickly as  possible.

     I hope this addresses your  concerns.   If you have further
 questions/  please give me a call at  202-382-7917.

                                   Sincerely,
                                    Robert  Holloway
                                    Act inn  Manaoer
                                    Waste Conbustion  Prooran

cc:  Mr. willian E. rtuno,  Kerjion  V
     btever. Silvernan,  Esq.

DCC: ui chare1 -toll, Lsci.
     dou Jel li ;ioer
     Jack Lennan

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              UNIT'' STATES ENVIRONMENTAL PROTECTlC  \GEHCY     9494 .1986 (05)
                                  II
Arthur J. Helmstetter,  P.E.
General Manager
Systech; Corporation
245 North Valley Road
Xenia, Ohio   45385

Dear Art:

     This is  to confirm tnat your  understanding  (reference  your
March 21, 1985 letter)  is correct  regarding  the  applicability  of
the November  29, 19b5,  administrative  controls  for marketers  and
burners of- hazardous waste and  used  oil  fuels to Systech's
situat ion.

     You are  correct that:

    - Systech is a marketer of  hazardous waste  fuel because you
take title to hazardous waste that you collect  from generators
and deliver to cement kilns.

    - As a marketer, Systech must:

       • Notify regarding your  hazardous waste  fuel marketing
         activities.  You should use your corporate office  name
         and  location on the notification form.

       0 Ensure that the manifest  system, pre-transport,  and
         recordkeepinq  and reporting requirements are complied
         with.  The generator's and  cement company's EPA  Identifi-
         cation Numbers should  be  used on the manifest because
         they are the shipping  and receiving facility, respectively
         Systech's  Identification  Number should not be used on
         tne manifest.   Systecn should keep  copies of manifests.

    - It systech Joed not own or operate hazardous wdste  ruel
storage raciiities, you are not subject  to ivstech ooerates a storage?
facility under contmct '•:> t*'-  ocr-ont  company),  Sv«tecn,  a  lonn

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with the owner, is subject to RCRA storage facility standards.
This is because the standards apply to owners and operators of
such facilities.  Either the owner or operator may choose to
comply with the standards.  In the event of nonccropliance,
however, both the owner and the operator are liable.
     I hope this addresses your concerns.
questions, give me a call.
If you have further
                                  Sincerely,
cc: (w/lncoining)
    Steve Silverraan
    Y. J. Kim,  Region
                                  Robert  Holloway
                                  Acting  Manager
                                  Waste Combustion  Program

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                                                    9494.1986(05a)

      30''386

Mr. Andy C. Ricci
President _
Ricky's Oil Service,  Inc.
5330  West 16th Avenue
Hialeah, Florida   33012

3ear  Mr. Ricci:

      This is  in response  to your May 27,  1986, letter regard inq
regulations applicable to used oil fuels.   You indicate that your
fuel  burning  customers will stop accepting  used oil fuel after
May 29 when the lead specification becomes  effective.

      There appears to be serious misunderstandings of the
requirements  of the November 29, 1985, rules.  You, and many
others as well, apparently believe the rule precludes the burning
of off-specification used oil fuel.  As explained in the enclosed
information bulletin we recently developed, of f-specif ication used
oil fuel may  be burned in industrial burners) only the burning of
of f-soecif ication used oil in non industrial boilers is prohibited.
In order to burn of f-specif ication used oil fuel, industrial
burners need  only notify the Environmental  Protection Agency (EPM
and comoly with two other minor paperwork requirements.  Off-
specification used oil fuel is not a hazardous waste and is  not
subject to storage standards.  Although EPA proposed to list used
oil as a hazardous waste and to apply storage standards to off-
specification used oil fuel on November 29, 1985, we are still
evaluating public comments on the proposals.  We expect to make
final decisions this fall and the final rules will be effective
six months after publication.

      I hope this clears up any misunderstandings you may have
had.  If you  have other comnents or questions, please contact
Mike  Petruska of my staff (202-382-7936).

                                      Sincerely,
                                      Marcia E. Williams
                                      Director
                                      Office of Solid  Waste  (WH-562)
Enclosure

bcc: Karen Walker
     Eric Males
     Mike Petruska

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                        ^j en « i rv wr«w £ w i <••. k. r * w •. c w i 'wf*


                                                           9494.1986(06)
                                II
 Mr.  Dennis  Stefani
 Chemical  Processor  Inc.
 5501 Airport Way  South
 Seattle,  Washington   98108

 Dear Mr.  Stefani:
     This  is  in  response  to  your  request  of  October 10,  1986,
for a clarification  of  the March  16,  1983,  Enforcement  Policy
(48 FR  11157)  and  the  rules  applying  to waste burned  for energy
recovery.

     Your  problem  concerns the  interpretation of  when in the
process  is  the criteria of 5000 Btu/hr applied  so as  to  allow
waste to be burned for  energy recovery in a  cement kiln.

     EPA1 a  interpretation  is that  the waste,  as generated,
should have an average  Btu value  of  5000  Btu/lb or greater  to
be considered a  bona fide  fuel.   Waste with  an  as generated
heating value  lower  than  5,000  Btu/lb is  considered  to  be in-
cinerated  when burned  in  a boiler  or  industrial furnace  and
is, thus,  subject  to the  incinerator  standards  of Subpart 0
of 40 CFR  Parts  264  or  265.  Such  low heating value waste is
considered to be incinerated even  if  it is mixed  with other
waste or fuel such that the mixture has a heating value  higher
than 5,000;Btu/lb.

     The intent  of the  policy is  not  to apply the Btu criterion
to each individual chemical or  hazardous  constituent  of  the
waste, but to apply  it  to  the aggregate waste,  as generated
(i.e., before mixing).  Therefore  the presence  of low Btu value
constituents would not  preclude the waste from  being  considered
a bona fide fuel that  is burned for energy recovery.

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                                *

     Please feel free to have any concerned party at the Washington
Department of Ecology call me at (202) 382-7934 for any further

clarification.

                                   Sincerely,
                                   Marc Turgeon
                                   Environmental Scientist
                                   Waste Combustion Section

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                         9494.1987(02)
                          IFR is w
Mr. Richard C. Fortune
Executive Director
Hazardous Waste Treatment Council
1919 Pennsylvania Avenue, N.W.
Suite 300
Washington, D.c.  20006

Dear Mr. Fortunat

     In your letters of January 6, and March 27, 1987, you
raised a nuaber of issues regarding the Marine Shale facility.
Region VI has already responded to sone of your concerns. We
will respond to sone of the other questions raised in your
letters.  However, other questions relate to current enforce-
ment deliberations and, therefore, cannot be addressed
without jepardizing potential actions.

     First, with regard to past enforcement actions, the Loui-
siana Department of Environmental Quality (LDEQ) has issued
a number of enforcement actions against Marine Shale, the
most recent of which was issued July 29, 1986.  I believe
Region VI has already furnished you a copy of the order
entered in that proceeding.

     * Question 3 - Has Louisiana been delegated authority to
       administer the definition of solid waste regulations
       or the Phase I burning regulations?

     As you know, under Section 3006 of the Resource Conser-
vation and Recovery Act (RCRA), the Environmental Protection
Agency (EPA) may authorise qualified States to administer
and enforce their State hazardous waste management program
in lieu of the Agency operating the Federal program in those
States.  Final authorisation was granted to the State of
Louisiana on February 1, 1985 [50 Fed. Reg. 3348  (January
24, 1985)].  However, the rules relating to the definition
of solid waste that were promulgated under 50 Fed. Reg. 614
(January 4, 1985), were not part of the authorized program.
Therefore, these rules do not apply until the State revises
its program to include controls for hazardous wastes  that
are equivalent to, or more stringent than, EPA's regulations
(i.e., regulations concerning the new definition of  solid
waste do not become effectdMeuRftexan authorized State, until
that Stite amends its rofulations and EPA authorizes  the
        State program).

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     In contract, the Hazardous and Solid Wast* Amendments
of 1984 (HSWA), which attended RCRA, provide new require-
ments and prohibitions in authorized States, such as Louisiana,
until the State is delegated authority to do so.  The hazardous
waste fuel regulations [50 Fed. Reg. 49164 (November 29, 1985)]
were promulgated pursuant to HSWA.  Therefore,  these rules
are effective and Federally-enforceable in Louisiana, although
they have not yet been adopted by Louisiana and authorized
by EPA.

     It should be noted that if the Marine Shale facility is
engaged in sham recycling and is in reality operating to
destroy hazardous wastes by controlled thermal combustion,
it is incinerating the wastes and is subject to the Subpart 0
standards for incinerators.  The issue of sham recycling is
a question of fact, turning on the contribution of the materials
burned to the output of the device.  The facility's operating
practices (for instance, degree to which wastes are scrutinized
for beneficial properties, revenues derived from burning
wastes versus processing raw materials) are also relevant.
The Agency is investigating these questions.  We also are
intending to propose in the near future regulations of air
emissions from boilers and industrial furnaces that legitimately
recycle hazardous waste.

     * Question 4 - How is the State (or Region VI) implementing
       the overaccumulation restrictions of 40 CFR Part 261.2
       (c)(4) throughout the State, not merely at MSP?

     As already indicated, the new definition of solid waste
regulations are not a part of Louisiana's authorized hazardous
waste program.  Therefore, the overaccumulation provision
which is part of the new definition of solid waste is not
being implemented in Louisiana.  Nevertheless, the speculative
accumulation provision would be irrelevant at MSP.  In partic-
ular, the facility already is deemed to be accepting hazardous
wastes, and requires a storage facility.

     * Question 5 - The use constituting disposal regulations
       under Part 261.2(c)(1)(A) and (13) specifically contain
       • requirement that wastes placed on the ground must
       be bound or chemically fixed in a manner that prevents
       migration.  What is the policy regarding the level of
       chemical reaction that must occur to satisfy this
       requirement?  Are residues of aggregate kiln furnaces
       generally considered to satisfy those requirements?

     EPA regulations, including 40 CPR 261.2(c)(l), which you
cited, do not require that wastes be bound or chemically  fixed
in a manner that prevents migration before they can be placed
on the ground.  Rather, Sections 266.20(a)(2)(b) of the
regulations state that recyclable materials that have undergone
a chemical reaction, so as to become inseparable by physical

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neans, are exempted from the regulations under Subtitle C of
RCRA.  Therefore, those wastes that are not chemically reacted
can still be applied to the land for beneficial use if the
hazardous waste disposer complies with the appropriate manage-
nent  ntandards.

      As to the level of chemical reaction that Bust occur
before a waste that is applied to the land is except from
regulation, the Agency has not developed specific guidance.
We believe, however, that the preamble discussion provides
general guidance to the regulated community in this area (50
CFR 6463, January 4, 1985).  Specifically, we believe materials
would fall under this exemption if the hazardous waste was
chemically transformed.  In addition, the hazardous waste
would have to be an effective substitute for some commercial
material.  In the preamble, we alto included several examples
of materials that would or would not fit the chemical reaction
standard.

      It is important not to confuse this standard with the
"no migration* standard under the Land Disposal Restrictions
requirements.  According to $266.20(a)(2)(b) standard, if a
chemical reaction occurs and the hazardous waste is an effec-
tive  oubstitute for a commercial material, the material
would be exempt from regulation whether or not any migration
has occurred.

      Regarding the residues of aggregate kiln furnace, as a
general matter, if the hazardous waste has undergone a chemical
reaction in the aggregate kiln and if the hazardous waste is
an effective substitute in producing aggregate, then residues
would be exempt from regulation.  The particular facts at
MSP would have to be evaluated to determine its regulatory
status.

      0 Question 11 - Is it Agency policy to extend the scope
       of the RCRA mining exclusion to industrial furnaces
       and their residues and thereby exempt them from the
       "derived-from-rule."

     The mining waste exclusion applies to the residuals, not
to the industrial furnace itself.  The mining waste exclusion
applies to devices that process ores or minerals.  The rele-
vant  inquiry thus is first to the nature of the device,
namely is it being used to process ores or minerals,  and
second, to the types of materials burned in the device,
i.e., are they largely ores and minerals or some other type
of materials?

     Thus, if an industrial furnace  is operating to destroy
wastes, it is not processing ores or minerals, and its residues
would hot be excluded.  The sham burning policy you mention
is a possible example (assuming the device is not also processinq
ores  and minerals).

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     If an industrial furnace burns hazardous waste for the
purpose of destruction, the furnace is subject to the inciner-
ator standards* as already indicated.  The share burning policy
you reference indicates that waste with an as-generated
heating value of less than 5,000 BTU/lb nay sometimes not be
considered a bona fide fuel.  When such wastes, whether
mixed with higher heating value wastes or fuels, are burned
in an industrial furnace (or boiler), such burning is considered
incineration.

     Even if the furnace is being used to recycle wastes, it
might not be considered to be processing ores or minerals if
the majority of the feed to the device was a non-ore or
mineral.  The Agency has always maintained, for example, that
secondary smelting furnaces are not covered by the mining
waste exclusion even though some of these furnaces burn
small percentages of ores and minerals.

     We should note that the Agency plant to solicit comment
on these issues in its upcoming rules on burning in boilers
and furnaces.  Also, we repeat that the mining waste exclusion
does not affect the regulatory status of control of emissions
from burning in industrial furnaces, nor the storage which
precedes burning.

                              Sincerely*
                              J. Winston Porter
                              Assistant Administrator

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                                                                  1987(03)
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON. DC 20460
Mr. Neil Gingold
General Counsel
Envirosure
333 Ganson Street
Buffalo, NY  14203

Dear Mr. Gingold:

     This is in response to your letter of June 12, 1987, in which
you requested clarification regarding waste tracking and classifi-
cation.  First, I would like to apologize for taking so long in
responding to your letter; I hope my delay hasn't caused you any
problems.  The answers to your questions are as follows:

     1.  EPA's current policy on mixing low and high Btu wastes
         is summarized in an enforcement guidance memo published
         in the Federal Register of March 16, 1983.  (Enclosure
         1.)  AS the guidance memo explains, a determination of
         what constitutes "sham burning" depends on a number of
         factors presented by the circumstances of a particular
         case; the energy value of the wastes being blended or
         burned is likely to be of primary significance in most
         cases.  Blending a low Btu waste (i.e., less than 5000
         Btu/lb.) with a higher Btu waste would not normally
         change the "sham" character of the subsequent burning.

         You should note that, as the guidance memo points out,
         other factors are considered in distinguishing sham from
         legitimate burning, and that EPA will set a priority on
         sham burning in non-industrial settings.  Also, as you
         correctly point out, EPA has proposed a new fuels policy
         in the form of revisions to the hazardous waste burning
         regulations.  On May 6, 1987, EPA proposed standards for
         boilers and furnaces burning hazardous waste.  (See En-
         closure 2.)  The proposed standards would apply to boil-
         ers and furnaces burning hazardous waste regardless of
         whether the purpose was energy recovery or destruction,
         so the "sham recycling" distinction would no longer be
         relevant.  (Id. at 16989.) EPA has accepted public com-
         ments on the May 6 proposal and we will be making deci-
         sions regarding the final rule within the next year.
         Until this regulation is made final, the enforcement
         policy will remain in effect.

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                                -2-
          As  a  final  pont  on  burning of wastes, you should note
          that  the  U.S. Court of Appeals  for the District of Col-
          umbia  reached a  decision on July  31, 1987, that calls
          into question EPA's authority to  regulate certain waste
          recycling activities.  EPA is studying the opinion to
          determine its scope.  Because the Court has not yet
          issued  its  mandate, the regulations currently in the
          Code of Federal  Regulations defining what is "solid
          waste," and establishing regulations for recycled
          hazardous waste,  remain in effect.

     2.   Listed wastes never "lose their identify."  Wastes are
          tracked on  the manifest by waste code under U.S. Depart-
          ment of Transportation (DOT) regulations at 49 CPR Parts
          171 and 172.I/   For mixtures, you must enter each waste
          code in the mixture on the manifest.  Further, you should
          note that facilities in interim status must specify on
          their  "Part A" permit application the hazardous waste
          they will be receiving (see 40  CFR S270.13(j)) and must
          amend  the Part A  to receive new wastes (S270.72,(a)).
          Also,  a RCRA permit granted to  a treatment, sto'rage, or
          disposal  facility may specify the specific hazardous
          wastes  the  facility is authorized to accept.  Finally, a
          treatment,  storage, or disposal facility must keep an
          operating record  with very specific information on each
          hazardous waste  at  the facility.  (See SS264.73 and
          265.73.)

     3.   All of the  requirements referenced in answer number 2,
          above,  require tracking of individual wastes by shipment
          (and if necessary, by container).

     4.   The proper classification of waste treatment residuals
          (the filter cake  in your case)  depends on the wastes enter-
          ring your treatment system.  Under 40 CFR $261.3(c)(2)(i),
          any waste derived-from treating a hazardous waste is
          itself a hazardous waste.  Such "derived-front* wastes
I/ Please note a couple of points  regarding waste shipment tracking.
~  First, the DOT rules referred to above do not require  the EPA
   waste code for "U" and "P" listed wastes.  This  is because U
   and P chemicals must already be described by their specific
   chemical names under 49 CFR Part 171.  You should also note that
   although EPA does not require the EPA waste codes to be placed
   on the hazardous waste manifest, some States do  require EPA's
   (or their own) codes to be entered  on the manifest in  addition
   to the DOT requirements.

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                               -3-
         are assigned the waste code(s) of the incoming (i.e. ,
         treated)"wastes.  Thus, if more than one listed waste
         was treated, the treated residue would be identified by
         all the listed wastes treated.

     If you have further questions in this area, please contact
Mike Petruska of my staff at (202) 475-6676.

                              Sincerely,
                              Sylvia K. Lowrance, Acting Director
                              Characterization and Assessment
                                Division

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                                                    9494.1991(01)



     3  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON. D.C.  20450



                            FEB   4 1991


                                              THE ADMINISTRATOR
Honorable Robert W. Kasten, Jr.
United States Senate
Washington, D.C.  20510

Dear Bob:

     Thank you for your letter of December 4, 1990, expressing
your concern about the burning of hazardous waste in boilers and
industrial furnaces (BIFs).

     I share your concerns about the need to ensure safe
management of hazardous waste in the United States.  In your
letter you posed a number of questions regarding the BIF
regulations we issued on December 31, 1990.  I am pleased to
provide the following answers to those questions.

     Q:   Are the new standards as stringent as those required of
          other waste incinerators?

     A:   Yes.  The performance standards for boilers and
          industrial furnaces burning hazardous wastes are
          essentially equivalent to the proposed incineration
          amendments, and are more stringent than the current
          incineration standards.  As in the incinerator
          regulations, the BIF regulations include performance
          standards for Destruction and Removal Efficiency  (ORE)
          of organic constituents, hydrogen chloride emissions,
          and particulate emissions.  The BIF regulations also
          include limits on emissions of products of incomplete
          combustion (through limits on carbon monoxide and/or
          hydrocarbons), hazardous metals, and free chlorine.

          The BIF regulations impose substantive requirements on
          existing facilities pending permit issuance or denial.
          According to the Resource Conservation and Recovery Act
         .(RCRA), any BIF  facilities in existence before these
          regulations became effective are granted interim
          status.  BIF facilities wishing to continue burning
          hazardous waste under interim status will have to
          submit data, under specific time frames, verifying
          compliance with  limits on emissions of carbon monoxide
          and/or hydrocarbons, hazardous metals, chlorine/
          hydrogen chloride, and particulates.

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Q:   Is there a strict certification process for new
     facilities that is similar to the review other
     facilities must complete?

A:   Yes.  The regulations for boilers and. industrial
     furnaces subject these devices to the full RCRA
     permitting process.  Implementation of these
     regulations through the permitting process will require
     the involvement throughout the Environmental Protection
     Agency (EPA), or the authorized state, prior to any
     permit decision.  This involvement includes a detailed
     review of the permit applications and the solicitation
     of and response to public comments. In addition, as
     discussed above, BIFs will be required to submit
     "certification" data demonstrating compliance with the
     interim-status standards in order to continue burning
     hazardous waste before that permit decision.

Q:   Do the regulations provide for the safe management of
     the residue?

A:   Yes, in general, residues are subject to the full
     panoply of RCRA Subtitle C requirements (i.e., our most
     stringent hazardous waste management standards).  One
     exception would be residues subject to the "Bevill
     Amendment."  In Section 3001(b)(3)(A) of RCRA, Congress
     excluded from Subtitle C restrictions any residues from
     boilers burning primarily coal or other fossil fuels,
     industrial furnaces processing primarily ores or
     minerals, or cement kilns processing primarily raw
     materials.  These wastes were deemed by Congress to be
     "high volume/low hazard" in character.  This exclusion
     will be effective until special studies are conducted
     to determine how these devices should be regulated.
     EPA's position reflected in the BIF regulations is that
     so long as, on a case-by-case basis, the processing of
     hazardous waste does not significantly affect the
     character of the waste residues as high volume/low
     hazard, then those wastes may remain excluded under the
     Bevill amendment.  Any residues that do not meet these
     criteria would be subject to Subtitle C requirements.

Q:   Do the new regulations establish a definitive timetable
     for closing this.loophole in'our hazardous materials
     law that ensures the protection of the public's health
     and safety?

A:   The rule will require facilities wishing to continue
     burning hazardous wastes to demonstrate compliance with
     the interim-status standards within specified time
     frames.  Thus, facilities subject  to these rules will
     be under a substantial level of control from the
     interim-status compliance deadlines until permit
     issuance or denial.

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          Permit applications will be "called in" and reviewed
          by the EPA regions or authorized states, based on a
          system of environmental priorities.  This reflects
          one of the conclusions of our RCRA Implementation
          Study . which was that EPA (along with the states)
          should develop a system that ensures that the most
          environmentally significant facilities in a particular
          state or region are addressed first.
                   *>
     I hope that these responses give you a clearer understanding
of how we plan to regulate boilers and industrial furnaces
burning hazardous wastes.  I also want to reiterate my own
concern about the significance of this rulemaking and its role in
ensuring that hazardous waste is managed safely and effectively.
If you have any further questions or comments, please have your
staff contact Russ Wyer, Director of EPA's Waste Management
Division in the Office of Solid Waste and Emergency Response,
at (703) 308-8414.
                                  Sincerely yours,
                                  William K. Reilly

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             UNh-0 STATES ENVIRONMENTAL PROTECi.wM AGENCY  9494.1991(02)
                                MR 2 9 1991
Mr. Robert M. Seal1let, President
Scalliet Technologies Inc.
87 Oates Rd., Bldg. 1
Houston, TX   77013
Dear Mr. Scalliet,

     I am writing in response to your February 21, 1991, letter in
which you brought up several issues related to sham incineration
and treatment of K048-K052  wastes in cement kilns and industrial
furnaces.  I have fully discussed these issues with Bob Holloway,
Chief of the Combustion Section of the Waste Treatment Branch in
the Office  of  Solid Waste,  and,  based  on this discussion,  am
providing you the following  response to the issues raised.

     For industrial  furnaces,  including cement  kilns,  if a K048-
K052 waste  is treated to separate oil  and water,  and  the cake
obtained has a heat content below the  sham incineration threshold,
then oil  cannot be  added to  the  cake to  satisfy  the threshold
requirement unless  the  oil was  originally  part of  the K048-K052
waste  and  was  removed  during  the  treatment process.    This
requirement applies regardless of whether or not the combustion ash
is recycled in the industrial  furnace.

     Additionally, all residues  generated from the treatment of a
listed hazardous waste, namely K048-K052 wastes in this instance,
are subject to  the Land  Disposal  Restrictions  (LDRs)  except for
certain  residues  (e.g.,  cement  kiln dust  and  primary  smelter
slag)   that may be  excluded  from regulation  under  the Bevill
Amendment.  The  February  21, 1991, Federal Register contains the
Boiler and Industrial Furnace  Rule which outlines a test  for when
the Bevill exclusion applies.   If a  residue  is exempt under the
Bevill exclusion, then the LDRs  do not apply to the residue.  You
should note, however, that the Agency  is considering a rulemaking
to require that Bevill-excluded residues nonetheless comply with
the LDRs.    Because  of  this,  we understand  that some cement
facilities are voluntarily complying with the LDRs.  We encourage
you to  do the  same for  any Bevill excluded residuals  that you
generate.

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     If you have any questions regarding this response,  please call
me at (703)308-8469 to further discuss these issues.
                              Jte'rry F. Vorbach, P.E.
                              Waste Treatment Branch
                              Office of Solid Waste

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                   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                WASHINGTON, O.C. 20460
APR  23 i99l                                                 •        OM.CIO*
                 r"                                       SOUD WASTE AND EMERGENCY RESPONSE
Mr. Chris L. Gansel
Test Engineer
Robert Sun Company
240 Great Circle Road, #344
Nashville, TN 37228

Dear Mr. Gansel:

       This is in response to your letter of March 21, 1990 to Denise Wright concerning
the burning of compressor oil with ammonia in space heaters.  You asked whether there
are any regulations prohibiting the burning of such oil.

       There are no federal hazardous waste regulations specifically restricting the
burning of ammonia contaminated used oils in space heaters. Our regulations under 40
CFR 266.41 governing used oil burning allow off-specification used oil to be burned in
space heaters provided three conditions are met:

       (1)    The heater burns only used oil that is generated by the owner/operator of
             the space heater or used oil from do-it-yourself oil changers who generate
             the used oil as a household waste;

       (2)    The heater has a maximum design capacity of no more than 0.5 million
             BTU per hour, and

       (3)    The heater's combustion gases are vented to the ambient air.

       Thus, if your space heater model Sun 2 meets these design and use criteria, it
may be used for the burning of off-specification used oils, including those that may be
contaminated with ammonia, according to the federal regulations. Some States,
however, have different regulations governing used oil and we recommend your checking
with the respective States.
                                        Sincerely yours, -
                                        David Bussard, Director
                                        Characterization and Asses? ment Division
                                                                         Printed on Recycled Paper

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                                                                       9494.1991(04)
o
                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             WASHINGTON. D.C.  20460
                                    APR 23 1991
 Mr. Gary Anderson                                                 O^.CE o<=
 Safety/Environmental Officer                             souo WASTE *»OM*w RESPONSE
 ARA Leisure Services
 P.O. Box 1926
 Page, Arizona 86040

 Dear Mr. Anderson:

       This is in response to your letter of March 25, 1991 concerning the management
 and burning of used oil generated by private boat owners.  You asked whether there are
 any applicable standards for acceptance, storage, testing, or burning, of such oil iu on-
 site waste oil furnaces.

       Under our regulations in 40 CFR 266.41 for used oil burned for energy recovery,
you may burn off-specification used oil in oil-fired space heaters provided three
conditions are met:

       (1)    The heater burns only used oil generated by the owner/operator or
             received from do-it-yourself oil changes;

       (2)    The heater has a maximum design capacity of no more than 0.5 million
             BTU per hour; and

       (3)    The combustion  gases are vented to the ambient air.

       In the case you described, the oil generated by the owners of private boats would
be considered oil from do-it-yourself oil changers.  If your furnaces meet the design and
operating requirements listed above, no federal hazardous waste regulations apply.
Thus, there are no additional standards for the acceptance, storage, or burning, or
testing of used oil generated by either your business or do-it-yourself boat owner oil
changes.  Please note that your State may have additional restrictions.  Thus, you should
check with your State to see if their are any  applicable restrictions.

       Should you have  any further requirements, please contact Denise Wright at (202)
245-3519.
                                             Sincerely yours,
                                             SyMa K. Lowrande, Director
                                             Office of Solid Waste
                                                                        Printed on

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9495 - USED OIL
BURNED FOR
ENERGY RECOVERY
Part 266 Subpart E
                 ATKl/l 104/6 kp

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                                                           9495.1985(03!
                            DEC  | 2 1985
Honorable Harry Meshel
Ohio Senate
Columbus, Ohio  43266-0601

Dear Mr. Meshelt

     Thank you for your letter of October 16, 1985, concerning
the Environmental Protection Agency's (EPA) proposed standards
for the burning and blending of hazardous waste and used oil
fuels, and the potential status of Cadence Product 312 under
these rules.

     Cadence has represented to us that the rule will be
detrimental to their ability to market Product 312 to current
users.  While we do not dispute this claim, I should neverthe-
less emphasize that our rulemaking will not prohibit the sale of
Product 312 to steel makers, industrial boiler operators, cement
kiln operators, or other industrial users of waste-derived fuels,
The rule requires only that these waste-derived fuels be stored
and transported under controls already applicable to other
hazardous wastes, including hazardous wastes used directly as
fuel without the blending that Cadence uses to produce their
Product 312.  The transportation controls require that hazardous
waste fuels be identified as such in a manifest presented to the
transporter, and ultimately to the burner, as a means of imple-
menting the prohibition on burning these fuels in relatively
inefficient nonindustrial boilers like those in apartment and
office buildings.  Burning in these devices can expose large
numbers of persons in urban areas to toxic emissions.

     I should also note that we plan a future rulemaking that
would provide permit standards to control emissions from
industrial boilers and industrial furnaces burning hazardous
waste fuels.  EPA-sponsored testing of a number of boilers and
industrial furnaces, including a blast furnace burning Product
312, indicates that many of these devices can be operated to
burn many hazardous waste fuels safely.  Thus, those planned
standards will not preclude burning of hazardous waste fuels
in industrial boilers and industrial furnaces in most cases.

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     Aa you know, we believe waste reduction and waste recycling
are the preferred options to manage our growing waste disposal
problem.  This, however, does not necessarily mean that a recycled
waste material should be exempt from regulation if improper handling,
treatment, or disposal could result in damage to human health or
the environment.  Our rulemaking attempts to balance the objectives
of fostering recycling and providing adequate protection of human
health and the' environment.  If a waste material is hazardous,
the relevant policy concern is whether burning the waste needs to
be regulated to protect human health or the environment.

     We have completed the process of finalizing these regulations.
I signed the final rule on Friday, November 8 and it was promulgated
in the Federal Register on November 29, 1985.  During the public
comment period, we received several letters asking us to exempt
Cadence Product 312 in the final rules.  We reviewed those comments,
as well as all of the other comments we received pertaining to
the proposed rules.

     In making a final decision, we have balanced all of the
issues raised by the public, including those comments you had
made; the Congressional mandate in the 1984 Hazardous and Solid
Waste Amendments; and our desire to both protect human health
and promote waste recycling.  This is not an easy task.  The
Office of Solid Waste has worked diligently to write equitable
and protective final regulations concerning burning and blending
of hazardous waste and used oil fuels.  I can assure you that your
concerns regarding Cadence Product 312 were considered in this
decision-making process.

     Again, thank you for sharing your concern* on this matter.
Please contact me if you have any questions.

                                     Sincerely,
                                        if. Thomas

                                     Lee M. Thomas

Enclosure

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                           6NVI80HMENTAL PROTECTION   'NCY         ,„«. ,OOC1.,
                                                              "     6 ( 02 )
                                       II
Mr. Gillian  F. O'Keefe
Vice President
American Petroleur.  Institute
1220 L Street, Northwest-
Washin«-jfon,  D.C.  20005

Dear Mr. O'Keefes
                                 >
     This  is  in  response  to youf January 24,  1986,  letter regarding
applicability of our November  29,  1985,  "burning and  blending"
regulations  to petroleum  refinery fuel  products derived from
recycled used oil*

     As Bob  HoiIoway explained  to you on January 29,  the exemption
we provided  for  hazardous waste-derived  refinery fuel products --
based on data you provided us  -- also exempts refinery products
when both  hazardous waste and  used oil  are  introduced into the
proce»».   Had we been aware that crude  oil  p«trol«um  refineries
typically  recycle used oil as well as their hazardous wastes,  we
would have explicitly addressed the issue in  the preamble.

     When both oil-bearing hazardous wastes and used  oil are
introduced into  the crude oil  refining  process, the fuel products
are exempt from the November 29 rule.   This is because mixtures
of used oil  and hazardous waste are subject to regulation as
hazardous waste, and hazardous  waste-derived  refinery fuel pro-
ducts are  exempt from the rule*

     Although we understand that virtually  all refineries reintro-
duce their process-generated,  oil-bearing hazardous waste into
the refining process* if  a refinery were to recycle used oil but
not its hazardous waste, the November 29 rule would not explicitly
exempt the refinery fuel  products from  regulation as  used oil
fuel.   \s you note, however, F.FA 'iirl not intend for used oil-
derived refinery nroducts to be suMect  to  ronula^on as use^ oil
."u-2l.   If  in  fact there =\ro re£iri*»riea  that- reeve1? use.! oil bu*
•\a* .•ar.ar-ous waste, please Iff -f; ^now *o  M-ia* wo can t-aX-i

-------
whatever action is necessary to ensure that their products are
no*- subject to regulation.

     I hope this addresses your concerns.

                               Sincerely,
                               Marcia Williams
                               Director
                               Office of Solid Wast*

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               UNITED   4TES ENVIRONMENTAL PROTECTION  INCY      9495-i336( 03;
. .r . Jo;-.  - reurr- '.±
j-iies Aaninis *ra ".or ano
Paul's Hea'. ing/ Construction Company
P.O. Box 1455
Fairbanks, Alaska   99707

Dear Mr. Ilgenfritz:

     Karen Brown, the Environmental  Protection Agency's  (EPA's)
Small Business Ombudsman/ asked me to respond to your  January  15,
1986 lef-.er on used oil  regulations.  The  answers  to your
questions are based on the rules issued on November 29,  1985  (40
CFR Part 266, Subpart E) :

     First, Service stations, repair shops,  etc.,  are  allowed  to
burn used oil they generate on-site  (or which they accept  from
household, "do-it-yourselfer" oil changers)  in used oil  space
heaters without analysis of the oil.  To answer your second
question, however, when  used oil from other businesses is  accepted
(i.e., not from household "do-it-yourselfers") from off-site,  it
cannot be burned in a space heater unless  it meets the EPA Fuel
Specification, and analysis would be required.

     Finally, the North  Star Borough can burn the  used oil produced
at their site (or accepted from "do-it-yourselfers") in  either a
used oil space heater or an industrial boiler without  analysis.
If the Borough plans to  simply burn  the used oil in its  normal
heating boilers, however, the used oil must meet the EPA Fuel
Specification and analysis would be, 'required.  For your  information,
I have enclosed a copy of the EPA Used Oil Fuel Specification.
Please be advised that used oil mixed with hazardous waste, such
as spent cleaning solvent, is subject to the hazardous waste
rules and those rules do not allow ourning in space heaters at all.

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     For fur-her information, call me a".  (202) 382-7917.

                              Sincerely,
                              Michael Pe«ruska
                              Environmental Protection Specialist
                              Waete Combustion Program
Enclosure

cc»  Karen thrown  (A-149C)
     Steve Silverman (LE-132S)
beet  Karen Walker

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EPA Used Oil Fuel Specification
Constituent/ property








Allowable
level
5 ppm maximum.
2 ppn maximum.
10 ppm maximum.
100 ppn maximum.
100 *F minimum.
4,000 pprn maximum.

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                UNITED!   FES ENVIRONMENTAL PROTECTION A  KY        9495.1986(04
                                   28  FEE  86
      lors Hollow-ay ^nfcttJ  ••.(?  to  r^p^or-!  to your -Mnu^r/  ..'.:,
1-JH6  letter, requesting  concirnat ion ot your under^t^n linq  nf
so^ie  of the provisions of the  November 29,  1935,  ^inal  rule  for
the burninq and blending of hazardous  waste and used oil fuels.

      Your interpretation that  the presumption  of  mixing of  haz-
ardous waste with used oil  is  applicable only  to  used oil that
will  be burned for energy recovery  is  correct. As you also  stated
correctly, the presumption  does not establish  a new hazardous
wasta characterstic under Part 261, Subpart C, nor does it  nean
that  halogen levels in used oil destined for uses other than
energy recovery must be monitored.  You should  note, however,
that  we have proposed standards for recycled oil  that would
apply the presunption or mixing to  all recycled oils, not just
tnose destined for use aa a fuel  (see  50 PR at 49217 (November
29, 1*U5) ).

      Your interpretation that  the "significant concentration"
of hazardous halogenated constituents  that would  indicate mix-
ing of hazardous waste with used oil is more than ICO ppra is
not valid in all cases.  The "significant concentration" which
would indicate that mixing  has taken place depends on  the type of
halogenated compound found, and the circumstances surrounding
the generation and collection  of the used oil. For example,  as
we stated in the preamble to the rules (50 PR  at  49176), we
believe that the owner of used oil  containing  less than
100 ppm of any individual hazardous jialogenated spent solvents
(i.e., F001 and F002) could successfully rebut the presumption
of raixinrj for the following reasons t (1) both  used oil  and  hazar-
dous  halogenated solvents are  frequently generated at  the same
facility, making incidental contamination a real  possibility, and
(2) deliberate mixing of used  oil and  such  solvents would very
probably yield concentrations  of total halogens of greater  than
100 ppm. However/ mixing of used oil with other hazardous halo-
genated waste could be indicated by concentrations of Appendix

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VI11 halo'jenated compounds at  levels  lower  than  100 pom,  especi-
ally if ^n« hazardous  halogenated waste  is  not generated  at  the
same sice as the used  oil or woul'l not be expected to  be  forned
during use of the oil. The example we used  in tt\e preamble
(also at 5U FK at 4*176) was ..lixing ot chlorinataed pesticides
wi tn used oil.

     In analyzing used oil fuel  to prepare  a  rebuttal,  the
analyst should cnecK for those Appenui*  VIII conpounds  used  at
tne tacility and tnose which could rea^onabl  be expected to
enter the used oil waste stream.

     I hope ^ds addresses your  concerns and clarifies  your  under-
standing of these regulations. If you have  any further  questions,
I can DC contacted at  (202)382-7937.
                              Sincerely,
                              Karen A.  Walter
                              Environmental  Scientist
                              Waste Combustion  Proqram

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               UNITF- STATES ENVIRONMENTAL PROTECTIQ'  iGENCY        9495.1986(05)
                             MAR
     ntnor.y  L. Trini
6 j Leron Street
•ot. Augustine, Florida   32084

Dear Mr. Tripi:

     Boo Holloway asked  me  to  respond  to  your  letter of
February 14,  1986,  in which you  asked  how the  regulations  for
burning of hazardous waste  and used  oil fuels  (50 FR at  49164
(November  29,  1985)) apply  to  the  burning
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     Aa a final note, the distinction between industrial and
nonindustrial boilers is not intended to be a final technical
determination concerning the suitability of boilers for burning
contaminated oil.  We recognize that many industrial and utility
boilers burning contaminated used oil do not have air pollution
control eguipment and are located in populated areas, thereby
most likely posing hazards to nearhy residents.  Later this year
we will be proposing emissions control standards for these boilers
and for industrial furnaces burning contaminated used oils.
     If you have
(202) 382-7937.
any further questions, please call IM at
                              Sincerely,
                              Karen Walker* Environmental Scientist
                              waste Combustion Program
                              Waste Treatment Branch  (WH-565A)
bcc:  Region IV

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                                                    9495.1986(08)
April 8, 1986

A. R. Tarrer, P.E.
Professor and Director, AWORL
Auburn University
College of Engineering
Auburn University, Alabama  36849-3501

Dear Mr. Tarrer:

     Thank you for your March 18, 1986, letter concerning the
possibility of separating chlorides from used oil.  As explained
in more detail below, you may strip used oil to reduce its
halogen content, but any fuel produced by treating a listed
hazardous waste is still considered a hazardous waste.

     Used oil used as fuel  (or to produce fuel) that contains
over 1000 ppm total halogens is presumed to be mixed with
halogenated hazardous wastes listed in 40 CFR Part 261, Subpart
D.   (See 40 CFR 266.40(c).)  Such used oil is thus also a listed
hazardous waste.  Persons may rebut this presumption by
demonstrating that the used oil does not contain hazardous waste
(for example, by showing that the used oil does not contain
significant concentrations of halogenated hazardous constituents
listed in 40 CFR Part 261, Appendix VIII).  Absent such a
showing, the used oil is regulated as hazardous waste fuel under
40 CFR Part 266, Subpart D, not the used oil fuel rules of Part
266, Subpart E.  You could treat such used oil with steam or air
stripping to reduce the halogen content.  You would need a RCRA
hazardous waste permit to do so.  Under 40 CFR 261.3(c)(2)(i),
any fuel produced by treating hazardous waste is still considered
hazardous waste.  (In contrast, if a lubricant is produced, the
lubricant is not a hazardous waste because under 40 CFR 261.2 it
is net a solid waste.)  To market the fuel as an exempt material,
you would have to obtain a "delisting" decision under the
petition process under 40 CFR 260.20 and 260.22 by showing that
the resultant fuel is not hazardous.

     Commenters on EPA's November 29, 1985, proposal to extend
the 1000 ppm halogen limit beyond used oil fuels to include all
used oils being recycled (see 50 FR 40217-49218) have indicated
that, for a variety of reasons, the 1000 ppm limit is too
restrictive.  They have suggested that it be raised to 2500,
3000, or 4000 ppm.  We are considering these comments, and, in
        This has been retyped from the original document.

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                               -2-

fact, are presently conducting studies to determine if some
unmixed used crankcase oils may contain over 1000 ppm halogens.
Although EPA may raise the limit as a result of those studies,
the rule described above applies in the interim.

     I suggest you contact the generators who have been sending
you used oil with over 1000 ppm halogens either to obtain
documentation that they are not mixing hazardous waste with the
used oil or to make sure they properly manifest their shipment.
it is possible that some of these generators may previously have
been exempt from hazardous waste regulations as "small quantity
generators" under 40 CFR 261.5.  EPA recently lowered the
exemption limit from 1000 to 100 kilograms per month, however,
and these generators will be required to comply with the
hazardous waste rules by September 22, 1986 (51 FR 10146).  We
would be very interested in learning what you find out about the
waste management practices of each of the generators from whom
you receive used oil.

     If you have further questions on our used oil rules, please
contact Mike Petruska of my office at (202) 382-7917.

                              Sincerely,
                              Marcia E. Williams
                              Director
                              Office of Solid Waste (WH-562)
bcc: Mark Greenwood
     Steve Silver-man
     Tom Devine, Region IV
       Hazardous Waste Division Director
        This has been retyped from the original document.

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               UNI*   STATES ENVIRONMENTAL PROTECT!   AGENCY       9495.1986(09)
                                 *!
Mr. Gordon D. hall
Lake Carriers Association
614 Superior Avenue, N.W.
915 Kocxefeller Building
Cleveland, Ohio  44113-1306

near Mr. Hall:

     Bob Holloway asked me to respond to your  letter of March  17,
1986, in which you requested clarification of  the application  of
the November 29, 1985, final rules  for the burning of  hazardous
waste and used oil fuels to the marine industry.

     As we stated in the preamble to the rules (50 PR  at  49193),
burning used oil in marine engines  is not covered by these regula-
tions because we have not fully considered whether marine engines
meet the definition of a boiler*  Burning used oil in  a .shipboard
steam boiler for heating purposes,  however, is regulated.  Although
we did not consider In the development of the  rule whether ship-
board boilers should be classified  as industrial or nonindustrial
boilers, we believe that, because of their location relative to
population centers, exposures resulting from emissions of ship-
board boilers would be more similar to the exposures resulting
from manufacturing and utility boilers rather  than the exposures
resulting from typical residential  and commercial boilers.  Thus,
shipboard boilers should be considered industrial rather  than
nonindustrial boilers for regulatory purposes  in this  situation.
As such, burning of off-specification oil is allowed.  Although
the owner or operator would not need to perform analyses  of the
used oil, he must notify EPA of his burning activities  (see
$266.44).  Note that notification is not required for  burners  of
used oil that meets the specification, but such burners must
analyze the used oil or otherwise obtain data  to document that
the used oil fuel meets the specification.

     You are correct in your assumption that used oil  generators
ar-> not required to notify unless they roarket  directly to a
Burner.  Ships cjeneratino used oil  that is then hurned on hoard
in a boiler are considered to be burners, and  are required to
notify as burners if they burn ocC-specific*tiop used  nil tuel.

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No notification of generator status is necessary.  In the case
where used oil generated on board a ship is generated and
transferred to a transporter, the transporter, not the ship,
may be subject to regulation as a marketer.

     I hope this answers your questions.  If you need turther
clarification or assistance, please call me at (202) 475-6128.

                              Sincerely,
                              Karen A. Walker
                              Environmental Scientist
                              Waste Combustion Program (WH-565A)

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                                                                   1986(1
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON. O.C. 20460

                           JUN 271986
                                                            OF
                                               SOLID WASTE ANC EMEBGENCv RESPONSE

MEMORANDUM

SUBJECT:  Regulation of Hazardous Waste  and  Used
          Oil Fuels (November  29, 1985)

FROM:     Karen Walker, Environmental Scientist
          Waste Management and Economics Division

TOt       Michael Sanderson, Chief
          RCRA Branch, Region VII


     This is in response to your memo of May 2, 1986,  requesting
clarification of whether the November 29,  1985, rules  for burning
of hazardous waste and used oil fuels apply  to used oil  that is
burned in incinerators.  I also discuss  two  other issues your
staff has raised:  whether the November  29 rules apply to the
open burning of vised oil and whether the hazardous waste fuel
storage standards apply to burner facilities that pump hazardous
waste fuel directly from tank  trucks into  a  boiler.

Incineration of Used Oil

     As I indicated in telephone conversations with Jack Coakley
and Chet McLaughlin of your staff, the regulations specifically
apply to the burning for energy recovery of  hazardous  waste and
used oil fuel in boilers and industrial  furnaces.  Therefore,
burning of used oil in incinerators is currently unregulated
and the used oil fuel specification does not^apply to  such oil.
If used oil exhibits a characteristic of hazardous waste and
is burned in an incinerator, it is presently regulated under
Subpart O.  This position is not an extrapolation of the marine
and diesel engine discussion in the preamble (which was  included
primarily due to public comment and inquiries prior to promulgation
of the rules), nor does it stem from an  "interpretation" of the
rule.  The rule simply and clearly applies to only that  used oil

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that is burned in boilers or industrial furnaces  (see §266.40(a)).
     We agree that it is somewhat inconsistent to regulate the
burning of used oil in boilers and industrial furnaces but not
the burning of used oil as auxilliary fuel in incinerators.  We
did not extend coverage of the November 29 rule to incinerators
because burning of any waste in an incinerator has been considered
for regulatory purposes to be burning for the purpose of destruc-
tion and not for energy recovery.  We have taken  this position
irrespective of the heating value of the waste and whether the
waste is actually used as auxilliary fuel because, to do otherwise,
would potentially open up the energy recovery exemption to any
waste with significant heating value when burned  in an incinerator.
Thus, without the policy that any waste burned in an incinerator
is burned for destruction, owners and operators of hazardous waste
incinerators could argue that their high heating  value wastes were
burned for energy recovery and therefore exempt from Subpart 0.
If high heating value hazardous wastes were coincinerated with
non-hazardous wait*, the owner or operator could  argue that the
incinerator is exempt from Subpart 0 because the hazardous waste
is burned for its energy value.  This is an outcome we wanted to
avoid.

     You should note that, if used oil is listed  as hazardous waste,
incineration of used oil would b« subject to Subpart O unless the
rule said otherwise.  This outcome will be considered as we deter-
mine whether to list used oil as hazardous waste.  (Whether or
not used oil if listed, standards for "incinerating" used oil are
more likely to resemble the controls being developed for boilers
and industrial furnaces burning off-specification used oil fuel
than the Subpart O standards.)

     The May 2, 1986 letter from Chet McLaughlin  to Dr. Paul Hipps
of the Washington University School of Medicine incorrectly
indicates that the November 29 rule applies to used oil burned in
a pathological incinerator.  As I stated above, if used oil is
burned in an incinerator, the November 29 rule does not apply
and a permit is not required at the present time.

Open Burning of Used Oil

     Your staff also forwarded to us an April 17, 1986 letter
from Chet McLaughlin to fire marshals in Missouri.  This letter
indicated that fir* departments would not be allowed to burn off-
specification used oil in training exercises.  I  discussed this
with Jack Coakley, who stated that the used oil is burned in open
pits.  For the same reasons outlined above, such  burning of used
oil is not covered by the November 29, 1985, rules.  We have
received similar inquiries from fire departments  and have advised
them that burning used oil in pits, drums, or containers constitutes
disposal and is currently unregulated unless the  used oil exhibits
a characteristic of hazardous waste, in which case such burning
would be other thermal treatment of hazardous waste.  If the used

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                                -ENTAL PROTECTION AC   CY          9495.i986 (2Q
Mr. Jod Mandel
Jenner & Block
One IBM Plaza
Chicaqo, II 60611           AUG  2 2 1986

Dear Mr. Mandel:

     I am writing in response to your letter requesting an  inter-
pretation of CPA's proposed listing of used oil as a hazardous
waste that was published in tho Federal Register on November 29,
1985.  In particular, you ask whether the hydraulic devices that
your client manufactures would be considered as hazardous waste
by the mixture rule when these devices become contaminated with
oil during quality control  testing conducted prior to their sale
and distribution.

     As described in 40 CPR $261.3, the mixture rule applies only
to mixtures of solid waste  and hazardous waste,  these hydraulic
devices do not meet the definition of a solid waste (see 40 CFR
$261.2) because they are products that are manufactured for sale
and are not discarded or intended to be discarded.  Thus, if used
oil were to be listed as a  hazardous waste and subsequently "mixed"
with these hydraulic devices, the resulting mixture would not bo
a hazardous waste according to the mixture rule*

     It must be noted that  used oil drained from these hydraulic
devices would be a hazardous waste if the oil exhibits a hazardous
characteristic as described in 40 CPR SS261.21 - 261.24, or if
used oil is listed as a hazardous waste as proposed in the November
29 notice, unless this used oil is reused for its original purpose
(i.e., in testing hydraulic devices).

     If you have any additional questions regarding the proposed
rules, you »«y contact me at (202) 475-8551.

                              Sincerely,
                              Matthew Straus
                              Chief

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               UNIT.  SlAiES ENViKONMENTAL PROTECT!*. AGENCY
                                                                 1986(21)
                                     15 SEP 86
Mr. Fred Hurban
Cof man Transmissions
240 N'ew York Drive
For*. Washington, Pennsylvania   19034

Dear Mr. Hurban:

     Per your telephone request of August  15,  1986,  I  am providing
written confirmation of the status of  used  oil-fired space headers
under the November 29, 1985, regulations  for  the burning of haz-
ardous waste and used oil fuel.

     We sent a letter to Tom Kagi on February 4, 1986,  (copy
enclosed) explaining the application of these rules  to  space
heaters.  This application is the same regardless of the geographic
location of the facility or space heater.   In that letter we
indicate that used oil could be burned in a space heater without
testing for toxic materials under the  following conditions:

     1.  The used oil is oil that you generate by servicing
         vehicles, or that you accept  from  "do-it-yourself"
         oil changers (you may not burn oil that you receive
         from another shop or from a used oil collector);

     2.  You have not mixed wastes such as  solvents, with the
         used oil;

     3.  The heater is designed to have a maximum capacity of
         less than 0.5 million Btu per hour (rating  is on heater
         nameplate); and

     4.  The flue gases are vented to the outdoors (e.g., through
         a chimney).

     I hope this addresses your concerns.   Please call me at  (202)
475-6128 if you have any questions.

                                  Sincerely,
                                  Karen Walker
                                  Environmental Scientist
                                  Waste Combustion Section

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                                                           9495.1986(22)
                           15 SEP 86

Mr. Paul McFadden
1045 Archer L*ne
Lensdale, Pennsylvania  19446

Dear Mr. HcFadden:

     I received your August  7 letter only late last wask.  Let CM
summarize your largely correct interpretations of the current
Federal requirements for industrial burners of used oil.

     Hazardous wasts (solvent) mixing - Mixing any amount of a
listed hazardous waste (>uch •• th« «p«nt solvents you nam«) into
a used oil creates a mixture that oust be managed as a hazardous
waste.  The 1000 ppn halogen standard is simply the level at which
EPA will preeume (until rebutted) that used oils «i»a <|i
                       have been nixed with halogenated hazardous
waste.  The presumption could be rebutted by demonstrating, for
example, that all halogens are inorganic.  (If you are burning
oils on-site, it should be easy for you to prevent solvent contami-
nation. )

     Burning hazardous waste «i»turee - Barnardsue waete combustion
is more stringently regulated than ueed oil co'toustion (under the
Hovcnber 29 final rules).  Facilities burning iiasardous waste for
energy recovery, however, are not regulated as incinerators.
Hazardous wastes (including raixturee) can be burned only in
industrial boilers and furnaces.  An on-site burner is subject
to Part 262 requirements for hazardous waste generators.   The on-
site burner is also subject to notification ($266.3S(a)), and
storage (§266.35(b)/$262.34) requirements.  There may *•!! be
additional requirements in the future; however, these rules have
not yet even been proposed.

     Burning used oils (on-specification) - For used oils not
aixed with hasardous waste, the regulatione (|266.40(e)) define
two types of ueed oil fuelst on-specifIcation and off-specification.
The combustion of on-spec used oil is unregulated, however, there
are a few requirements for on-site burnere to meet the exemption.
(I admit the*« may be a bit unclear from a reading of the actual
regulatory language.)  First, the on-site burner muet notify as
•an on-site burners who first claims the oil meets specification.*
Second, the burner must be able to demonstrate that the oil (ae
burned) meets the specification.  L*b analyses are certainly a
good way of waking such a demonstration.  Note that the combustion
itself is entirely unregulated by the used oil rulee, that is,
the oil may be burned in any typo of device.  There are no plans
to regulate on-sp«c burning with future used oil rules.

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     Burning used  oili  (off-specification)  - 3urnitj-.j off-apacification,
used oil is Tabulated aore  stringently (»266.44)  than on-spec.   ;tost
importantly, off-spec used  oil  nay be burned only in industrial
devices, and only  by facilities  that  have notified as "an ofr-apec
us«*d oil burner."   In the future,  there r>»y be additional re-juireineats
to rnaet, such as,  the use of  air pollution  control, or perhaps  storage
requirements.  These additional  regulations, however, nave not yet
been proposed.

     I :\op« you  have ay  now received  r.iy August 4  letter on tastinj
procedures and laos.  If  you  have  any other questions,  pleasa
contact ie.

                                    Ctnceruly,
                                     Hlrir
                                     Office of Solid .^aste

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                           ATTACHMENT I
     Question 1;  Why, when the "Banking of Lead Rights" was
promulgated on April 2, 1985,  (21 days after the public comment
period closed for 40 CFR Parts 260, etc.) was there no mention,
reference, or acknowledgement  of  its existence 8 months later  in
the November 29, 1985 Federal  Register?

     Response;  Staff working  on  the final regulations published
on November 29, 1985, were totally unaware of the lead credits
program included in the April  2,  1985, "Banking of Lead Rights"
final regulation.  During development of the November 29, 1985
regulations, our staff was working to resolve all of the issues
raised in public comments on the January 11, 1985, proposed
regulations on the burning of  hazardous waste fuel and used oil
in boilers and industrial furnaces.  Unfortunately they were
not knowledgeable in the matter of the lead credits program
first proposed in January 4, 1985 (50 PR 718).  No commenters on
our proposed rules raised the  issue of the effect of the lead
credits program on lead levels in used oil fuels/  Thus, certain
projections made by staff and  published in the preamble to the
November 29, 1985 final rules  have proven to be inaccurate.

     Question 2i  Why was Table 4 and the entire dissertation
surrounding it published in the November 29, 1985 Federal Register
when the EPA Staff knew that it waa inaccurate and misleading?

     Response;  Table 4, which projects how much used oil will
meet various lead limits by Nay 1986, was derived without taking
into account the lead credits.  As explained above, the inaccurate
projections were due to a lack of knowledge by the staff writing
that document of the lead credit provisions, and was certainly
not a deliberate attempt to mislead the public.  As shown in
Table 5, on the same Federal Register page as Table 4, EPA also
made projections of how much used oil would meet the entire-used
oil fuel specification, not just the lead specification.  We
projected that by May 1986, only 46% of all used oil would meet
the used oil fuel specification without blending with virgin
fuel oil*  This is because we  expected other elements of the
specification* i.e., the limits for Arsenic, Cadmium, and Chromium
of 5, 2, and 10 ppn, respectively, to cause significant amounts
of used oil to be off-specification*  The purpose of the specifi-
cation is to identify used oil fuel with high levels of toxic
contaminants compared to virgin fuel oil and to restrict the use
of such contaminated fuel to industrial burners.  We never intimated
that any set percentage of used oil fuel must meet the specifica-
tion; in fact, as discussed above, we expected that most used
oil fuel would not meet the specification unless blended with
virgin fuel oil.

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     Question 3:  Why, when EPA readily admits in 49 CFR Part 80
that "	 the Agency estimates that about 9.1 billion grams would
be banked* and  that "	 the Aaency does not exoect that these
regulations will have a significant adverse impact, if any, on
the public health or the environment", does the small percentage
of that lead (2.65%) flowing through the oil recycling industry
pose a health risk?

     Response;  The amounts of lead allowed in gasoline cannot be
directly compared to the amounts contained in used oil.  First,
the Agency's regulations of 49 CFR Part 80 are designed to reduce
and perhaps eliminate the use of lead as a motor fuel additive
(50 FR 9386; March 1, 1985).  EPA indicated that a national
healtlT problem  exists with regard to lead and that "... all
reasonable efforts should be taken to reduce lead exposure to
the population  as rapidly as possible."  (Id.)  The Agency at
first concluded that the refining industry as a whole could .
achieve a 0.1 grams per gallon limit by January 1, 1986 without
the allowance of lead credits.  EPA became convinced, however,
that a more flexible but equally protective approach would be to
impose a limit  less stringent than 0.1 grams per*gallon prior t£
January 1, 1986 (i.e., 0.5 grams per gallon on July 1, 1985), to
impose the 0.1  limit on January 1, 1986, and. then allow lead
credits through 1987.  The Agency reasoned that this accelerated
schedule could  be combined with a lead credits program and achieve
the same lead reduction in 1985-1987 as imposing the 0.1 gram per
gallon limit on January 1, 1986, with no lead credits (50 £R
718-719; January 4, 1985).  Therefore, EPA did not simply con-
clude, as your  letter suggests, that 9.1 billion grams of lead
entering the environment would pose no problem.  Rather, the
Agency concluded that we could achieve the most rapid reduction
through an accelerated phasedown schedule combined with a lead
credits program.

     The used oil fuel regulations serve a dual purpose.  First,
EPA concluded that under certain conditions the burning of used
oil in boilers  could cause violations of the National Ambient Air
Quality Standard (NAAOS) for lead; the 100 ppm lead limit prevents
these occurrences (50 PR 49184-49185; November 29, 1985).  Further,
EPA considered whether the used oil fuel regulations should be
used as • supplement to the gasoline lead phasedown described
above to reduce oversll lead exposures, i.e., to go beyond what
is necessary to prevent violations of the NAAQS and set an even
lower lesd limit.  (Id.)  As the Agency indicated, due to new
health effects dsts on lead that may lead to a lowering of the
NAAOS and the latter consideration, we are considering whether
the 100 ppm limit should be lowered.  (Id.)  An important factor
in this determination will be the likely impacts of a lower limit
on the used oil recycling industry.  Impacts on recycling will
not, however, take precedence over health-based considerations.

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     Question 4;  Why, when the National Ambient Quality Standard
for lead at a 75% emission rate is currently 300+ ppm, has a 100
ppm specification been imposed upon the oil recycling industry?

     Response;  The enclosures to your letter (Exhibits IV, v,
and VI) cite air modeling work performed for EPA in about 1980.
The results indicate that under some conditions an individual
burner can burn a fuel with over 100 ppm lead without exceeding
at groundlevel the lead NAAQS of 1.5 micrograms per cubic meter.
As EPA explained when it proposed and promulgated the 100 opm
limit, however, a number of factors must be considered besides
single burner air modeling.  (This is discussed in detail at 50
FR 1698; January 11, 1985, and 50 PR 49184, November 29, 1985.)

     0    Used oil sources can be clustered, i.e., multiple
          sources can be located near one another, leading
          to increased ambient pollutant levels;

     0    In urban areas, it is not unusual to have exposed
          individuals at elevated locations (e.g., in apart-
          ment houses) where pollutant levels may be higher;

     0    Many areas already have lead in the air so used
          oil burners, while emitting only a fraction of the
          NAAQS, could add to the ambient levels and cause an
          exceedence of the NAAQS; and

     0    The current NAAQS is under review by EPA.  New health
          effects data indicate that lead is even more toxic
          than earlier studies indicated; and the NAAQS may
          therefore be lowered from the current 1.5 micrograms
          per cubic meter.

     In summary, the 100 ppm lead limit for used oil is necessary
to prevent violations of the NAAQS.  In fact, the original study
performed for EPA in 1980 recommended a lead specification for
used oil of 50 ppm.  Used Oil Burned as a Fuel, Volume I, Recon
Systems, Inc. and ETA Engineering, Inc., 1980 (p. 1-8).

     Question 5t  Why has EPA so clearly discriminated against
the oil recycling industry (as opposed to the major producers
and importers of leaded gasoline) to the obvious detriment of
the environment?

     Response»  EPA has not discriminated against used oil
recyclers while favoring producers and importers of leaded gaso-
line.  EPA has moved swiftly to reduce lead in gasoline and we
may in the future prohibit lead as a gasoline additive.  Used oil
recyclers may market used oil containing any amount of lead to
any industrial burner.  We have imposed only minimal requirements

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on the marketing and burning of used oil high in lead content to
track the movement of a fuel which is substantially different
from virgin fuel oil (e.g., virgin fuel oil rarely contains more
than 1 opm of lead), and which may pose a hazard when not burned
in the proper device.  This is entirely consistent with RCRA
Section 3014, which requires EPA to regulate used oil recycling
practices that potentially could harm human health or the environ-
ment.

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            UNITED STATES ENViKUNMS* . *,. , rtU,cu,.ON A56HCY



                                                           9495.1986(28)
                                 12 !
Honorable Charles W. Stenholm
House of Representatives
Washington, D.C.  20515

Dear Mr. Stenholmi

     Thank you for your October 14, 1986, letter regarding
the 100 ppm lead specification.  This specification was
developed to protect human health and the environment.  The
fact that we did not consider lead banking had no effect on
our decision.  The only effect of lead banking is to modestly
increase our estimates of the amount of used oil that would
be off-specification.

     With regard to your three suggestions, the Environmental
Protection Agency (EPA) is drafting
a proposed response to the petitions and expects to publish
it in the Federal Register before the end of the year.  (EPA
procedural rules require the Agency to propose action on a
petiton for rulemaking beore taking final action.  40 C.F.R.
4260.20(c).)

     Second, you suggest that EPA defer implementation of the
100 ppm lead specification but at the same time retain the
prohibition on burning off-specification used oil in non-
industrial boilers*  This is virtually what the present regu-
lations provide.  All burners but non-industrial sources may
burn off-specification oil provided they notify EPA and
their supplier that they are an industrail source.  You may
be asking that EPA repeal these administrative requirements.
Our present thinking is that these administrative provisions
are needed if EPA is to be able to enforce the prohibition
against burning contaminated used oil in non-industrial
boilers, since some means are needed to verify independently
that processors are not selling contaminated oil to prohibited
sources.  Further, these requirements have no other legal
significance.  We have taken, and are continuing to take
active steps to inform the public of the minimal legal signi-
ficance of this one-time notification.

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    Finally, with regard to your last point as stated above,  the
pecification is, and must be, based on human health and the
environment.

     I appreciate your continued interest in this area and will
continue to inform you of our activities.

                              Sincerely,
                              J. Winston Porter
                              Assistant Administrator

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                                   PROTECTION AGENCY        9495.1986(30)
                           NO/21
Ms* Kathryn O'Connor Ounkel
Director of Environmental
  and Safety Operations
P.O. Box 517
Riverdale, Maryland  20737-9981

Dear Ms* Gunkeli

     Thank you for your October 10, 1986, letter regarding the
relationship between "permit-by-rule" and the proposed used
oil special management standards for burners*

     The major point you raised in your letter is the impli-
cation of filing the burner notification form 8700-12.  Our
final standards will apply only to facilities burning off-sp*-
cification used oil as of the effective date of the final rule
(which is usually six months after the final rule is published
in the Federal Register)*  Filing the notification form now
would not subject your members to that final standard.
Filing also will not subject your members to the corrective
action requirements in Section 3004(u).  Form 8700-12 is not
a Resource Conservation and Recovery Act (RCRA) permit appli-
cation or the equivalent, and again it doee not trigger
compliance with Section 3004(u).  You specifically asked if
used oil recyclers will need permits, and if so how would
they apply for such permits.  We have not yet resolved this
issue.

     You also asked why, when we generally avoid permit-by-
rule in the RCRA program, did we propose a permit-by-rule
for used oil recyclers?  The used oil permit was established
by Congress for recycled oil identified as a listed or hazar-
dous waste in RCRA Section 3014(d).  The permitting is a
statutory requirement.

     We are also considering what types of regulations should
apply to recycled oil burners*  For example, we are currently
debating whether used oil burners should be regulated like
other recyclers or if we should apply special, less stringent,
requirements.  Our current thinking is that it may be appro-
priate to have different etandards for processors and re-refiners.

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     Let me assure you that EPA believes that off-specification
used oil can be burned safely.  When emissions are properly
controlled, burning is an environmentally desirable method of
recycling used oil.  We will consider the issues you raised when
developing our final rule.  I would be pleased to meet with you
on these and any other concerns you may have.

     I have addressed the seven specific questions you asked in
the enclosure.  If I can be of any further assistance, please
let me know.

                              Sincerely,


                               /V Jack f .

                               r.
                                 Winston Porter
                               assistant Administrator
Enclosure

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                   Answers to Questions 1-7

     1.   Under the November 29, 1985 proposal, facilities
burning off-specification used oil fuel on the effective
date of the final rule would be eligible for a permit-by-rule.
Submission of the notification form 8700-12 would not trigger
issuance of a permit.  Under the proposed used oil management
standards, facilities in compliance with all of the applicable
requirements would be deemed, without any action on their
part, to have a RCRA permit.  [See 50 £R 49240] Submitting
notification information is only one requirement; compliance
with proposed 40 CFR 266.43, 266.44, and 270.60(d)(2)^would
be necessary to obtain the permit-by-rule.  This approach to
permitting used-oil recyclers is actually specified in
RCRA Section 3014{d); Congress instituted such a system to
encourage facility permitting.  (See H.R. Rep.  No. 98-198,
98th Cong., 1st Session, at 69 (1983).]  Under this system,
there is no written permit per se.  In fact, EPA would not
be granting a permit at all.  Congress specified in RCRA
Section 3014(d) that a used-oil recycler who complies with
all applicable requirements receives a permit.

     with respect to the relationship in the proposed rule
between the permit-by-rule and corrective action, you should
note that in the November 29, 1985, Federal Register, we
proposed that us«d oil recyclers who qualifed for the permit-
by-rule were not subject to the corrective action requirements
in Section 3004(u) unless EPA revoked the permit-by-rule based
on specified criteria.  [See 50 PR 49241]

     We have not determined what management standards will
apply for used oil burners.  We have concluded that the full
set of requirements proposed on November 29, 1985, is probably
too stringent.  We will consider whether a reduced set of
standards might be adequate for burners.  We also have decided
not to list recycled oil at a hazardous wast*.  This may
render the permit-byrule provisions of the November 29,
1985, proposal moot because facilities managing nonhazardous
waste have not in the past been subject to EPA permitting.
It should be noted, however, that EPA can require permitting
for used-oil recyclers even without a hazardous waste
listing.  CSee H.R.  Rep. No. 98-198, 98th Cong., 1st Sess.,
at 69 (1983).]  Whether we do require some form of permitting
will depend upon the extent of Agency oversight needed to
implement the management standards issued for burners.
These decisions are still several months away.

     2.   You are correct in stating that under the proposal,
a facility is deemed to have a RCRA permit if it complies
with all applicable requirements.  It is the responsibility
of the owner or operator of the facility to comply with the
requirements.  EPA can, of course, conduct facility inspections
to ensure compliance.

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                              -2-
     Submittal of  form  number 8700-12 has  little  to do with
the  facility permitting.   Submittal of  notification informa-
tion is one requirement  that a  facility would have to meet
whether or not a permit  is  required by  the  final  rule.   EPA
form 8700-12 is not a permit application.   This issue was
discussed in the Movember  29, 1985, proposal [See 50 FR  49243].
Under  the proposal, those  owners or operators who were not
in compliance with applicable requirements, or who were~°not
sure whether they were  in  compliance, would have  been required
to submit a special notice, separate  from  the notification,
to EPA indicating their  desire  to obtain interim  status.
Those owners and operators  who  were sure of their compliance
would not have to submit an application.

     Let me clarify.one  point which may be  confusing.  In the
proposed rule we stated  that a  notifying facility is afforded
the option of indicating that the information submitted  on
form 8700-12 could be used  to fulfill the permit  application
requirements of RCRA Section 3005(e)(i)(c).  A facility  might
have wished to take this course because eligibility for  the
proposed permit-by-rule  turned  on a facility being in
compliance on the rule's effective date with applicable
regulations.  A facility not in compliance  or unsure whether
it was in compliance was thus afforded  the  opportunity to_
have legal authorization to operate [See 50 FR 49240].
Facilities electing to  take this action w«ra not.  thereby
subject to Section 3004(u)  corrective action [See 50 £R
40241].

     The "two year" inspection  schedule applies to facilities
permitted by EPA under  RCRA Section 3005.   Since, under  the
proposed rule, most used oil recyclers  would be permitted under
.RCRA Section 3014(d), the  schedule would not apply.

     3.   As discussed  in  response II,  under the  proposal,
facilities who were eligible for the permit-by-rule would
not have been subject to RCRA Section 3004(u).  [See 50  FR
77740.] The only case where such a facility would have been
required to take corrective action measure* is when EPA
revoked the permit-by-rule,  [see 50 FR 49241.]   See proposed
§270.60(4)(3) for the criteria  under wHich  a permit-by-rule
could be) revoked.  EPA has  not  determined whether these, or
similar* requirements will  ultimately be applied  to used
oil burner*•

     4.   Ae explained  above, the used  oil  recycling permit
would not actually be issued by EPA.  Rather, the permit is
a special authorization  granted by Congress in RCRA Section
3014(d) for used oil recyclers  to be exempt from  normal  RCRA
permitting procedures,  provided they  comply with  all applicable
requirements.

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                               -3-
     5.   As explained above, submittal of EPA form number
8700-12 has nothing to do with corrective action requirements.
Further, the timing of the notification was set by Congress
in RCRA Section 30lO(a); notification was required by February
1986.

     6.   As explained above, the burner notification require-
ment is just that, nothing more.  It simply does not expose
burners to the types of consequences suggested in your
questions.

     7.   At present, burners of off-specification used oil,
except for the notification and recordkeeping provisions of
40 CFR §266.44, are subject to the same requirements as
burners of virgin fuel oil.  The time that management standards
are issued in final form for used oil burners is appropriate
time for each facility owner or operator to make his own
decision on whether or not to continue burning used oil
fuel.  As a general matter, RCRA regulations become effective
six months following promulgation, so burners will have time
to assess any new requirements.

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                                                        9495.1987(01)
                                            20  JAN  87
Mr. Joseph P. Chu, Assistant  Director
Plant Environment
Environmental Activities Staff
General Motors Corporation
General Motors Technical Center
30400 Mound Road
Warren, Michigan  48090-9015

Dear Mr. Chut

     This is in response to your  letter of  December 19,  1986,
concerning the used oil notification requirements  of
40 CFR Part 266, Subpart E.   You  are correct in pointing out
that the regulations themselves do not require burners of
specification used oil fuel to notify EPA.  This is, however,
the result of a drafting oversight.  Question  VI.7. on the
notification form  (EPA Form 8700-12) is meant  to apply to all
persons who first claim that  their used oil fuel meets the
specification, including generators who bura their own used
oil on-eite.  See the preamble of the November 29, 1985,
Federal Register (50 PR 49195), which states:

          The following persons must notify either EPA •
          or an authorized state  to identify their
          waste-as-fuel activities ... (3) marketers
          (or burners) who first  claim used oil fuel
          meets the specification and so is exempT
          from subsequent regulation.  [Emphasis added.]

     We recognize that the rules  themselves should be clarified
on this point.  In the future, we will be issuing a correction
notice in the Federal Register to clarify this and certain other
ambiguities in the rules issued on November 29, 1985.

     Finally, the last point  you  raised was that EPA Form 8700-12
is not appropriate for used oil because it is  not necessarily a
hazardous waste.  EPA never limited the notification requirement
to used oil that is hazardous waste, so the requirement does
apply.  If you wish, however, you may notify EPA on the enclosed
form that we have recently developed for used  oil handlers.  (It
**kes no mention of 'hazardous waste.")  Elth«r the enclosed
form. CPA Fora 8700-12, or a  letter with all required informa-
tion would be equally acceptable  ways for you  to notify.

                                        Sincerely,
                                              fi'
                                        Marcia E. Williams
                                        Director
                                        Office of Solid Waste
Enclosure

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                                                                 .1987(0
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON. D.C. 20460
 NWR   61987
                                              SOLID WASTE AND EMfBGENC*

MEMORANDUM
SUBJECT:  Hazardous Waste Statas of Automotive Fluids

FROM:     Marcia E. Williams-
          Director, OSW

TO:       Michael J. Sanderson
          Chief, RCRA Branch
          EPA Region VII

     This is to provide guidance on the questions raised in your
February 19, 1987 memo.  First, no automotive fluids have been
listed as hazardous under Subtitle C of RCRA; therefore, the
question of whether these fluids are subject to the hazardous waste
regulations depends on whether the fluid in question exhibits one
or more of the RCRA hazardous waste characteristics.  Although
we do not have studies in this area, we have been informed that
some brake fluids and automatic transmission fluids are ignitable
under 40 CFR $261.21.  Used crankcase oils may also be ignitable
(because small amounts of gasoline are added during or after use),
and may exhibit E.P. toxicity for lead*

     However, for those automotive fluids that are used oils and
are recycled, the hazardous waste regulations would not currently
apply, even if the fluid exhibits a characteristic; rather all
used oils that are recycled are subject to 40 CFR Part 266, Subpart E
(See 40 CFR $261.6 (a)(2)(iii).)  Currently, Part 266, Subpart E
only regulates the recycling of used oil as fuel.  All other recyc-
ling methods arc exempt from regulation.  Those automotive fluids
that are either not a used oil, or are used oil that is disposed
of, are subject to the hazardous waste regulations if they exhibit
one or more of the characteristics.  Currently, we define "used oil"
in §266.40(b) very broadly.  Brake fluid, power steering fluid,
and automatic transmission fluid would all be considered used oils.
On the other hand, antifreeze and windshield washer fluid, because
they are not "oils" as the term is commonly used, would not be
used oils.

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                               -2-


     As a practical matter, our understanding is that brake,
steering, and transmission fluids are typically mixed with crank-
case oils and recycled.  Therefore, the hazardous waste characteris-
tics are not relevant and Part 266, Subpart E applies if the oils
are recycled as fuel.  Used anti-freeze is not a used oil and is
not likely to exhibit any of the hazardous waste charateristics;
consequently, it may be disposed of as a solid waste in Subtitle D
facilities.  Similarly, windshield washer fluid is not used oil,
and is not likely to exhibit a characteristic; thus, it may also
be disposed of as solid waste.

     Please feel free to call Mr. Mike Petruska at 8-382-7737 if
you have and further questions.

cc: Regional Branch Chiefs (EPA Regions I-IV and VII-X)

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              UNITED    TES ENVIRONMENTAL PROTECTION / NCY       9495.1987(05)
 MAR 2 6 1987


Mr. Joseph P. Chu
Assistant Director
Plant Environment
Environmental Activities Staff
General Motors Corporation
General Motors Technical Center
30400 Mound Road
Warren, Michigan  48090-9015

Dear Mr. Chut

     Thank you for your response to our January 20,  1987,  letter
with regard to the notification requirement for specification
used oil burners (40 CFR Part 266, Subpart B).  Your moat  recent
letter of February 12, 1987, has prompted us  to reconsider our
position and the regulatory notification requirement.

     You had previously written us on December 19, 1986, in
reference to the above subject.  Our response at that time
emphasized the Hoyember 29, 1985, Federal Register preamble
(SO PR 49195).  The preamble stated that burners who first
claimed that used oil fuel meets the specification which allows
it to be exempt from regulation must provide  EPA a one-time
notification of their use of such oil.  However, burners who
receive used oil from a marketer who claims the oil  meets  the
specification (and who has notified EPA as marketers), are not
subject to the notification requirement.

     In your particular situation, your facilities generate and
burn on-eite their own used oil that they claim meets the  speci-
fication.  Sine* no marketer is involved, and your facilities
burn usad oil directly, the preamble identified a requirement
for you to provide notification.  In our previous letter to
you, we advised that you should provide notification, and  that
a technical corrections notice to this regulation was being
prepared to clarify this and other issues raised since the
November 29, 1985, Federal Register publication.

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     You correctly noted, in your most recent letter, that our
January 26, 1987, Federal rtegister notice (52 FR 2695, 2C98)
provided comments referencing the 11/29/85 Federal Register,
which exempted burners of specification used oil from the notifi-
cation requirements.  This exemption was provided in the context
that the marketer who distributed the used oil (to the burner)
had already first claimed (via the required notification for
marketers) that their used oil met the burning specification.

     We recognize that you have raised a valid concern with
respect to on-site specification used oil generators who are also
burners.  This circumstance was not specifically addressed in the
original regulations.  Upon further evaluation, we now want to
clarify that the notification requirement, is not appropriate for
generators who burn their own specification used oil on-site.
The only intent of +he (burner) notification requirement is
to allow blenders who receive off-specification used oil from
marketers to provide notice that they only burn on-specification
used oil.

     The previously mentioned technical correction notice, to
be published soon in the Federal Register (hopefully, mid-April);
will clarify this natter.  We thank you for bringing this circum-
stance to our attention.  The Agency supports the use of specifica-
tion used oil for burning as if it were virgin oil.  Thus, we will
not require notification from generators who burn specification
used oil on-site.

                                       Sincerely,
                                       Marcia E. Williams
                                       Director
                                       Office of Solid Waste

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             UNITED STATE* fNV^ONfcSJBJp1/L PRQffllTlON ACENfT        9
-------
     Thank you very much for your interest in the used oil
regulations.  If you have any questions regarding our progress,
please contact Robert Bellinger of my staff at (202) 382-
7917, who will be happy to discuss this matter more fully.
we are working very hard at developing regulations that
protect human health and the environment while encouraging
che recycling of used oil.  As explained above, both recycled
used oil and used oil bound for disposal will be addressed in
future rulemaking activities.

                              Sincerely,
                              J. Winston Porter
                              Assistant Administrator

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                                                          9495.1988(02)
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. O.C. 20460


                             SEP 2 2 1988
                                              SOLID WASTE ANO EMERGENCY RESPONSE

Kathleen M. Blair, Director
Consumer Information Center
2402 Daniels Street
Madison, Wisconsin  53704

Dear Ms. Blair:

    Thank you for your August  23,  1988,  letter  inviting the
Environmental Protection Agency  (EPA) to review "Specification
No. PFS-983 Test, Inspection and Certification  Criteria for
Atomizer Multi-Oil Fueled Heaters."

    In 1985, EPA issued a final  rule that established a
specification for used oil fuel.   Used oil that meets this fuel
specification can be burned for energy recovery without EPA
restrictions, in any device.   This rule  restricted the  burning of
"off-spec" used oil fuel to certain devices  (see 40 CFR
S266.4l(b)>.  One of these devices is a  space heater (l) that
burns only used oil that the owner or operator  generates or used
oil received from do-it-yourself oil changers who generate used
oil as household waste; (2) that is designed  to have a  maximum
capacity of 0.5 million BTUs per hour; and (3)  that vents
combustion gases to the outdoor air.

    Although EPA has not developed more  specific standards for
space heaters, we are concerned about the risks posed by
improperly maintained or operated  space  heaters (and other
devices burning off-spec used  oil  fuel).  We  also recognize that
certain types of space heaters may pose  greater risks than
others.  This final rule was intended to address the greatest
risks posed by uncontrolled burning of used oil fuel.

    We plan to develop technical standards for  burners  of
off-spec used oil fuel sometime  in the future.   At that time, we
will further evaluate regulatory options to  address risks posed
by space heaters.  When we do  propose a  rulemaking on this
subject, it will appear in the Fadaral Raoiatar and will allow
for public comment.

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                                -2-
    With regard to your suggested technical specifications for
used oil-fired,"automation type, space heaters, we prefer not to
comment on the document for two reasons:  (1) we do not have the
resources to comment on documents prepared by independent firms,
and (2) we do not wish to imply any endorsement of one type of
space heater (i.e., atomization type) over another.

    If you have any questions, or would like to discuss the used
oil regulations in more detail, please contact David Tomten of my
staff at (202) 382-2550.

                                Sincerely,



                                J J Winston Porter
                                Assistant Administrator

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                                                            9495.1989(01)
                               MAT 15  1989
MEMORANDUM
SUBJECT: Interpretation of Subpart E — Used Oil
         Burned for Energy Recovery (§266.40(c))

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

TO:      Lloyd Guerci, Acting Director
         Hazardous Waste Management Division
         Region 8


    This is in response to Robert Duprey's April 12, 1989,
memorandum requesting an interpretation of rules pertaining to
used oil that is to be burned for energy recovery and the
application of the Agency's enforcement mechanism — the
rebuttable presumption — to determine when mixing with hazardous
waste has occurred.  Your memorandum discusses the practice by
coal companies in Region 8 of spraying coal with used oil to
suppress coal dust and to increase BTU value.  The coal is then
marketed to a burner by the coal company or through another
marketer.

    You asked whether- any person other than the generator of the
used oil is eligible to rebut the presumption that the oil was
mixed with hazardous waste when the used oil contains in excess
of 1000 ppm total halogens.  The rebuttal test is not limited to
the generatojrjof tits used oil.  Any person in possession of used
oil contalJKg more; than 1000 ppm total halogens must be able to
provide dosfiMBtatlon to support a rebuttal if the oil is not
ride doefpeatatla
tged as^pmVardotts
managed as^lvsxdous waste.

    You also asked if the rebuttable presumption was applicable
in the situation you described since the used oil was being
applied to the coal and was not itself being marketed directly as
a fuel.  The used oil fuel and hazardous waste fuel regulations
apply to used oil and hazardous waste that is burned in boilers
or industrial furnaces.  The regulations apply irrespective of

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                               - 2 -


whether the used oil or hazardous waste is mixed with other fuels
or waste before use as a fuel.  If used oil containing more than
1000 ppm total halogens is mixed with coal and the presumption of
mixing with hazardous waste cannot be rebutted, then the
coal/used oil mixture is hazardous waste fuel and is subject to
the hazardous waste fuel regulations under 40 CFR Part 266,
Subpart D.

    Finally, you mentioned in your memorandum that RCRA Hotline
personnel told you that if the used oil is sufficiently diluted
after it is sprayed on the coal, such that a representative
sample would test under the 1000 ppm halogens level, the
"oil-treated coal" could then be burned in any industrial boiler
or furnace.  This answer is partly correct — the oil-treated
coal may be burned in an industrial (or utility) boiler or an
industrial furnace.  However, the oil-treated coal would be
subject to regulation as hazardous waste fuel even if the mixture
contains less than 1000 ppm total halogens.  This is because the
1000 ppm halogen test for used oil identifies used oil that is
presumed to be mixed with spent halogenated solvents listed as •
hazardous waste numbers F001 and F002.  Thus, used oil containing
more than 1000 ppm halogens is subject to regulation under the
mixture rule as those listed spent solvents.  When this used oil
is mixed with coal, the mixture also is subject to regulation as
those listed solvents.

    The mixtures, like any hazardous waste, may be burned in
industrial or utility boilers and industrial furnaces under the
regulations in Subpart D of 40 CFR Part 266 (e.g., transportation
and storage is fully regulated, and standards for burners are
under development).  Part of the logic for this position is that
the 1000 ppm halogen limit is not a health-based concentration
"characteristic.11  Rather, it is based on data that indicated
that used oil was mixed with significant levels of halogenated
solvents when halogen levels exceeded 1000 ppm.  Thus, used oil
with more than 1000 ppa halogens cannot be diluted by nixing with
other materials to make the mixture nonhazardous.  Used oil with
more than 1000 ppm halogens is subject to regulation like any
other listed hazardous waste.

    If you have any further questions on this iseue, you may call
Angela Wilkee (382-7934) of my staff.

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                                                  9495.1989(02)
          UNfTEETSTATES'EKVfROfaiETraL' PKOTICTTOH ACHtCT
                            OCT | 7 QB9
Mr. James A. Stevens
1016 Brook Street
Kingsport, Tennessee   37660

Dear Mr. Stevens:

     Thank you for your letter from August 1989 concerning used
or waste oil.

     The Environmental Protection Agency  (EPA) does not require a
burner of used oil to obtain a permit for this activity.  There
are, however, some restrictions regarding the burning of used
oil.

     The federal regulations, specifically 40 CFR Part 266,
Subpart E, state that off-specification used oil may be burned in
industrial furnaces and boilers, including used oil-fired space
heaters.  If off-specification used oil is burned in space
heaters, however, it must be from household do-it-yourself oil
changers or be generated by the burner of used oil itself.  Also,
the space heater must be designated to have a maximum capacity of
0.5 million BTU per hour or less and the gases/emissions
generated must be vented to the outside air.  If an individual
has a supply of on-specification used oil, there are no
restrictions on the type of unit in which it is burned.  However,
the burner of on-specification used oil must analyze or use other
information to show that the oil meets the specifications, and
must comply with recordkeeping requirements.

     The definitions of on-specification used oil and off-
specification used oil are found in 40 CFR Section 266.40(e).
Both "on-specification" and "off-specification" used oils can be
burned in space heaters; however, you must follow the
requirements for the design of the space heater when burning
"off-specification" used oil.

     For more information on federal regulations concerning used
oil (under RCRA, the Resource Conservation and Recovery Act) you
may contact the RCRA/Superfund Hotline at 1-800-424-9346.

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9497 - SPENT
LEAD-ACID
BATTERIES BEING
RECLAIMED
Part 266 Subpart G
                 ATKl/l 104/51 kp

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY        'I98 6 (01 j

                     WASHINGTON. O.C. 204CO
                           FEB  6 1986
                                                     OMICt OP
                                            •OLIO WATT! AND IMIMGfNCX RESPONSE
Mr. Michael L. Sappington
Lake Engineering and Development,  Inc.
6000 Lake Forrest Drive
Suite 350
Atlanta, Georgia  30328

Dear Mr. Sappington:

     The Administrator has asked that Z respond to your letter
dated January 3* 1986, regarding your concern with the Agency's
recycle/reuse regulations and its  impact on the recycling of
spent lead-acid batteries.  You state in your letter that
the Agency's January 4, 1985, recycling rules will make it
very difficult to legally reclaim  these batteries.  Part of
your concern is the unavailability of environmental impairment
liability insurance.  The end result, you believe/ will be
th« disposal of 50 Billion gallons of highly corrosiv*. acid
and 1.3 billion pounds of lead.  Thus* you are requesting
that EPA reconsider its position (i.e.• whether to regulate
the battery components generated from breaking and separation
operations) and will be submitting a petition to address
this matter.

     We are very sympathetic to your problem.  We agree with
you that secondary lead smelters do provide a valuable
environmental service*  However* the Agency's recycle/reuse
rules were promulgated to ensure that any storage (or
transportation) of the battery components is conducted in an
environmentally sound manner.  As  you state in you letter*
the management of these materials  has created problems in
the past.  Thus, all we wish is to ensure that the management
of these materials (in the future) will be conducted in a
proper manner.  Therefore, it will be important that your
petition address all the criteria  in $260.31(c) as completely
as possible! in particular, it will be necessary for you to
address th« manner that these battery components are handled
(in order to minimise loss of the  toxic contaminants) since
this has been a particular concern of several of our Regional
offices.  To this end, Z plan to circulate your petition to
our Regions for their comment.  Ms look forward to receiving
your petition.

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     EPA recognizes that, during the past year, the insurance
industry has substantially curtailed the writing of new
environmental liability policies.  The Agency worked with
the House of Representatives, at their request, on H.R.
3917.  This Bill provided some relief for land disposal
facilities subject to the Resource Conservation and Recovery
Act (RCRA) from the requirement to certify compliance with
liability requirements by November 8, 1985, if the facility
was in compliance with ground water monitoring requirements
and had submitted a Part B permit application by that date.
The Agency worked with the Senate staff on their review of
the H.R. 3917 but the Senate has not yet taken any action on
that or any other similar legislation.

     with regard to your concern of the unavailability of
liability insurance, I have enclosed a list of insurance
companies who may be willing to write environmental impairment
liability insurance.  The Agency contacted all insurance
companies known to have been involved in this market.  The
list includes those who were willing to be on a list of
potential suppliers of environmental impairment liability
coverage.

     Please fe«l fr«e to write M if you hav« any further
questions.

                                  Sincerely,
                                  J. Winston Porter
                                  Assistant Administrator
Enclosure

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                                                                9497.1986(01a)
             RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                MAY 86
5. Hazardous Waste Export Rule

   A generator of spent lead-acid batteries will send the batteries  to
   Taiwan for reclamation.  The batteries exhibit the characteristic of
   EP toxicity, as defined in §261,24 for lead contamination.   What
   RCRA regulations pertaining to export notification and/or record-
   keeping is the generator subject to currently?  &taat regulations
   would the generator be subject to under the hazardous waste export
   regulations as proposed in the March 13, 1986 Federal Register
   (51 FR 8744)?

        Section 266.80 of the current RCRA regulations (applicable to
        reclaimed spent lead-acid batteries)  states that "(piersons  who
        generate, transport, or collect spent batteries...but  do  not
        reclaim them are riot subject to regulation under Parts 262
        through 266..."  Export notification requirements are  presently
        found in $262.50 and generator recordkeeping requirements are
        in $262.40.  Since this generator is exempt form Part  262, he
        is then not subject to the export notification or recordkeeping
        requirements.

        The hazardous waste export regulations, as proposed, would
        not alter the current exemption in $266.80.  However,  EPA
        anticipates making a final regulatory determination  on this
        issue and all other hazardous waste export regulations in late
        July 1986.

        Source:    Carolyn Barley  (202) 382-2217
                   Wendy Grieder   (202) 382-4888
        Research:  Margaret Kneller

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                     WASHINGTON. D.C. 20490
                                                            9497.
1986
(02)
                              JUL  I  I 1986
                                                      OMICCOF
                                             •OLIO WA»Ti AND EMERGENCY RESPONSE
Honorable David O'B.  Martin
House of Representatives
Washington, D.C.   20515

Dear Mr. Martin:

     Thank you for your June  16,  1986,  letter  on behalf  of
your constituent,  Mr. Roland  A. Clement.   Mr.  Clement expressed
concern about the  disposal of lead-acid batteries.

     The Environmental Protection Agency (EPA)  shares
Mr. Clement's concerns regarding  the  improper  disposal of
spent lead-acid batteries.  These batteries  are a hazardous
waste, therefore/  their disposal  is controlled under Federal
law.  The only exception  to this  is the direct disposal  of
batteries by an individual consumer.   Federal  law specifically
exempts such household waste  from hazardous  waste regulations.

     The Agency does  regulate the storage of batteries prior
to being reclaimed,  i.e.,  battery crackers, smelting and/or
refining operators.   However, the Agency does  not regulate
the storage, generation or transportation of recycled batteries
by any other persons.  We have adopted  this  regulatory
approach in order  to  provide  a balance  between protecting
human health and the  environment  and  encouraging the recycling
of these batteries.

     The EPA has not  imposed  a requirement that recycled or
used batteries be  collected at established points and a  fee
paid for their management.  If this reauirement has been
imposed, it is either a State or  local  rule  and you, therefore,
should contact the State  Department of  Environmental Conser-
vation  (DEC) for details  on this  particular  requirement.

    We hava developed a regulatory program to  encourage  the
recycling of lead-acid batteries  by generators.  Please  feel
free to write me) if  I can be  of any further  assistance.

                               Sincerely,

                                 /a/ Jack I. MoGrtf

                                  Winston Porter
                                isistant Administrator

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           UNITED STATES ENVIRONMENTAL PROTECTION ACEMCV3C?
                       FEB  I 2 1987
                                                         9497.1987(01)
Honorable Jesse Helms
United States Senate
Washington, D.C.  20510

Dear Senator Helms*

     Thank you for your January  13,  1987,  letter  regarding
Mr. w. R. Helms' concern about the  regulations  the  Environmental
Protection Agency (EPA) has  issued  regarding  the  reprocessing
of batteries and the transportation  and the export  of  these
batteries.

     I want to assure you  that EPA  carefully  considered its
approach before regulating industries  such as spent batteries
recycling.  We are convinced that regulation  of these  recycled
materials is necessary to  adequately protect  human  health
and the environment.  Waste  destined for  recycling  can present
the same potential for harm  as wastes  destined  for  treatment
'and disposal; that is, the risks associated with  transporting
and storing wastes is unlikely to vary depending  on whether
they are ultimately recycled, treated, or disposed. In the
past, facilities' recycled hazardous wastes have  caused
serious health and environmental problems. In  fact, recycling
operations, including a number of battery reclaimers,  account
for some of the most serious environmental damage incidents.

     The Agency has developed special  standards for spent
lead acid b«tteries that are reclaimed to minimize  the regu-
lations' impact.  Zn particular, only  the person  who reclaims
the battery is subject to  regulation and  only the storage
activity furfer to recycling  is regulated.  Therefore,  even
though we regulate these materials,  we have designed our regu-
lations to have the least  adverse impact  on the regulated
community while still meeting our statutory mandate of pro-
tecting human health and the environment.

     EPA also has recently promulgated regulations  for the
export of hazardous waste.  (See enclosed August  8, 1986,
PR.)  These regulations were required  by  Section  3017  of

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That provision mandated that EPA finalize regulation* prohi-
biting hazardous waste exports, unlessi (1) the person exporting
the waste has provided notification to the Administrator of
EPA; (2) the government of the receiving country has consented
to accept the waste; (3) a copy of the receiving country's
written consent is attached to the manifest which accompanies
the waste shipment; and (4) the shipment conforms to the
terms of the foreign country's consent.

     In developing the export rules, EPA determined that a
hazardous waste which poses risks domestically would pose
equivalent threats in international shipments (this includes
spent lead acid batteries).

     Although EPA recommends that.exporters notify the Agency
at least 60 days in advance of an intended shipment, we
anticipate that the processing of notifications and written
consents can be accomplished in less time.  Thus, we expect
that exporters will not typically be subject to the require-
ments under 40 CFR Part 262 which require generators who
store for more than 90 days on-site to obtain a storage
permit.

     If I can be of any further assistance, please let me
know.

                              Sincerely*
                              /J. Winston Porter
                              Assistant Administrator
Enclosure

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           UNITED STATES ENVIRONMENTAL PRO i eCTION AGENCY
                                                           1987(02)

                                  I 9
Honorable Ron Mariana*
House of Representatives
Washington, D.C.  20515

Dear Mr. Marleneet

     Thank you for your January 23, 1987, letter regarding
the regulations the Environmental Protection Agency (EPA)
has issued regarding the reprocessing of batteries.

     I want to assure you that EPA carefully considered its
approach before regulating industries such as spent batteries
recycling.  We are convinced that regulation of these recycled
materials is necessary to adequately protect human health
and the environment.  Waste destined for recycling can present
the sane potential for harm as wastes destined for treatment
and disposal; that is, the risks associated with transporting
and storing wastes is unlikely to vary depending on whether
they are ultimately recycled, treated, or disposed.  In the
past, facilities' recycled hazardous wastes have caused
serious health and environmental problems.  In fact, recycling
operations, including a number of battery reclaimers, account
for some of the most serious environmental damage incidents.

     The Agency has developed special standards for spent
lead acid batteries that are reclaimed to minimire the regu-
lations' impact.  Zn particular, only the person who reclaims
the batt«ry is subject to regulation and only the storage
activity prior to recycling is regulated.  Therefore, even
though «• regulate these materials, we have designed our regu-
lations to have the least adverse impact on the regulated
community while still meeting our statutory mandate of pro-
tecting human health and the environment.

     As is also correctly noted in your eonsitituent's letter,
EPA also has recently promulgated regulations for the export
of hazardous waste.  (See enclosed August 8, 1986, Pit.)
These regulations were required by Section 3017 of

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provision mandated that EPA finalize regulations prohibiting
hazardous waate exports, unlessi (1) the person exporting
the waste has provided notification to the Administrator of
EPA; (2) the government of the receiving country has consented
to accept the waste; (3) a copy of the receiving country's
written consent is attached to the manifest which accompanies
the waste shipment; and (4) the shipment conforms to the
terme of the foreign country's consent.

     In developing the export rules, EPA determined that a
hazardous waste which poses risks domestically would pose
equivalent threats in international shipments (this includes
spent lead acid batteries).

     If I can be of any further assistance, please let me
know.

                              Sincerely,
                              J. Winston Porter
                              Assistant Administrator
Enclosure

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY


                                                     9497.1987(03]


                           APR  I 7 ;o£T
Honorable Joseph M. Gaydos
House of Representatives
Washington. D.C.  20515

Dear Mr. Gaydosi

     Thank you for your March 17, 1987, letter regarding
your constituent's, Mr. George W. Burrows, concerns about
the reprocessing of batteries.

     First, I want you to know that the Environmental Protec-
tion Agency (EPA) agrees with you that the improper aanagtnent
of spent lead-acid batteries can present a hazard.  Thus, as
part of its hazardous waste regulation, the Agency regulates
the materials when disposed of and when sent for recycling.
In particular, we agree that regulation of these recycled
materials is necessary to adequately protect human health
and the environment.  Waste deetined for recycling can present
the same potential for harm as wastes destined for treatment
and disposal; that is, the risks associated with transporting
and storing wastes is unlikely to vary depending on whether
they are ultimately recycled, treated, or disposed.  In the
past, facilities recycling hazardous wastes have caused
serious health and environmental problems*  In fact, recycling
operations, including a number of battery reclaimers, account
for some of the most serious environmental damage incidents.

     Because of this potential hasard, the Agency has developed
special standards for spent lead acid batteries that are
reclaimed  In particular, the person who reclaims the battery
is subject to regulation and the storage activity prior to
recycling is regulated*  In addition, any spent lead-acid
batteries that are disposed of are subject to the general
hazardous waste rules*  Thus, we believe we have rules in place
that meet our statutory mandate of protecting human health
and the environment*

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     With respect to your constituent's suggestion regarding
imposing a tax on new batteries, EPA does not have the authority
to impose such a tax.  Therefore, we are not able to consider
this approach.  X can be of any further assistance, please
let ae know.

                              Sincerely,
                              |j. Winston Porter
                              Assistant Administrator
Enclosure

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                                            9497.1989(01)
             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                              JANUARY  8?
1.   Spent Lead Acid Batteries

    The owner/operator of a facility that collects  spent  lead acid
    batteries drains the acid and then manifests  the acid off-site for
    reclamation.   The battery shell,  which still  contains the lead
    plates,  is sent to a facility that extracts the lead  for smelting.
    Should these  battery shells when sent off-site, be managed as EP
    Toxic hazardous waste or as spent lead acid batteries subject, to
    Subpart G of  40 CFR §266?

         First, the material is classified as  a solid waste after the
         acid is  drained.  Second,  either a "spent  lead acid battery" or
         a battery shell must exhibit a characteristic of hazardous
         waste to be a hazardous waste in the  Subtitle C  system.  Assuming
         the battery case exhibits  a characteristic, then the owner/operator
         of the facility would be regulated as a  hazardous waste generator
         because  he generates spent acid which exhibits the characteristics
         of corrosivity.  The act of draining  the batteries, however, is
         not considered part of the reclamation process.  Therefore, the
         owner/operator would not be subject to the requirements of
         §266.80(b), for example, notification, contingency planning,
         closure, and all other applicable provisions 40  CFR Part 264.

         However, the facility that cracks the battery to remove the lead
         plates will be subject to  these provisions of 40 CFR 266.SO(b).

         Source:    Matt Straus  (202) 475-3551
         Research: Robyn Neaville (202) 382-3112

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                                                       9497.1989(02)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460

E  L  Williams  Jr                                    O*HCE o*
Colonel  USAF                                S°L'° *'AST: AN° ES'ERGENCV
Director of Environmental Protection
Defense Logistics Agency
Defense Reutilization and Marketing Service
Federal Center
74 N. Washington
Battle Creek, Michigan  49107-3092

Dear Colonel Williams:

    This letter responds to your September 19,  1989 request for
information regarding the regulatory status of  spent lead-acid
batteries stored by the Defense Reutilization and Marketing
service (DRMS) before reclamation and the applicability of  the
speculative accumulation prov.sion found at 40  CFR 261.2(c)(4).

    The speculative accumulation provision (the requirement to
recycle 75% of a material within one calendar year to demonstrate
that the material is nfii a solid waste) is entirely separate and
distinct from the regulations applicable to spent lead-acid
batteries.  The speculative accumulation provision is used  to
define a material as a solid waste.  Because the only use for this
provision is to i-ring under regulation as a solid waste those
materials which are intended to be recycled in  one year, but are
not, the speculative accumulation provision is  not applicable to
those materials already defined as solid wastes (e.g., spent
lead-acid batteries) .  This is evident in the definition of
"accumulated speculatively" at 40 CFR 261.1(c)(8) which states
that H. . . (Materials that are already defined as solid wastes
also are not tc be included in making the calculation.)11

    Under Federal regulations, the lead-acid batteries that DRMS
collects and stores are spent materials that are reclaimed.   As
provided in Table 1 at 40 CFR 261. 2 (c), spent materials that are
reclaimed are. solid wastes.  Assuming lead-acid batteries likely
exhibit on* or more characteristics of a hazardous waste, they are
defined as hazardous wastes pursuant to 40 CFR  261. 3 (a) (2) (i) .
However, certain recyclable materials are regulated under special
provisions.  In the case of recycled spent lead-acid batteries,
the appropriate regulatory section is 40 CFR Part 266 Subpart G.

    Part 266 Subpart G states that "Persons who generate,
transport, or collect spent batteries, or who store spent
batteries but do not reclaim them are not subject to regulation
under Parts 262 through 266 or Part 270 or 124  of this chapter,
and also are not subject to the requirements of section 3010 of
RCRA."  Therefore, DRMS is not subject to regulation under  RCRA
for the storage of spent lead-acid batteries.   (The spent
batteries remain a solid waste and, if they exhibit a
                                                               Rteycltd Paptr

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                               - 2 -


characteristic, a hazardous waste; however, if they are reclaimed,
they are exempted from substantive regulation under RCRA).

    You should note that State regulations may differ from, and,
in fact, be more stringent than, Federal regulations.  Therefore,
you should also contact the appropriate State regulatory agencies
to determine what State regulations may be applicable.

    Thank you for your interest concerning the recycling of
lead-acid batteries.  If you have further questions regarding the
applicability of Federal regulations, you, or your staff, should
call the RCRA/CERCLA Hotline at 1-800-424-9346, or contact Mitch
Kidwell, of my staff, at (202) 475-8551.
                                    ice
                                  Edwin F. Abrams
                                  Chief
                                  Review Section

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, 0 f 20460
                                                   9497.1989(03)
Jean M. Beaudoin, Chairperson
BCI Environmental Committee
Fox, Weinberg  and Bennett
750 17th  Street, Northwest
Washington, D.C.  20006

Dear Ms.  Beaudoin:

    Thank you  for your October 24,  1989,  letter concerning the
impact of the  Land Disposal Restrictions  (LDR) on the recycling of
lead-acid batteries.  The Agency encourages the recycling of solid
waste and believes it is important  for preserving resources and can
prevent environmental degradation.  Thus, we strongly support the
reclamation of lead-acid batteries.

    Restricted wastes may be stored on the land in tanks or
containers (i.e., land disposed) without  meeting treatment
standards, provided it is done solely with the intent of
accumulating such quantities of hazardous waste as necessary to
facilitate proper recovery, treatment or  disposal.  In addition,
this storage must comply with all other applicable storage
standards such as those relating to secure storage, secondary
containment in some instances, and  other  requirements.  (See
40 CFR 268.50.)

    The Agency has indicated in a previous rulemaking that the
shell surrounding a lead-acid battery is  considered to be a
container (see 47 FR 12318, March 22, 1982; see also 40 CFR
264.314 (d)(3)).  Thus, to the extent that lead-acid battery
storage meets all the conditions set forth in the LDR storage
prohibitions at 40 CFR 268.50, such storage is permissible.

    We are including your letter in the Third Third Rule Docket am
will specifically address any issues it raises in our Response to
Comments  Background Document.
                               Sincerely
                               Sylvia Lowrance
                               Director
                               Office of Solid Waste

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                                                   9495.1990(01
    Ti
    I        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON. D.C. 20460
                           JUN  I 3 I99C
                                                     OFFICE OF
                                            SOLID WASTE AND EMERGENCY RESPONSE
Ms. Kristina Richards
Senior Engineer
Applied Environmental Technologies Corporation
7 Belver Avenue, Suite 210
North Kingstown, Rhode Island 02852

Dear Ms. Richards:

     This is in response to your letter of March 22, 1990, in
which you asked several questions concerning the management of
used oil and the identification of listed hazardous wastes.

1)    Question on 40 CFR 266 Suboart E;  Does this subpart apply
to all used oils, or does it apply only to used oils which
exhibit characteristics of a hazardous waste?  The definition in
40 CFR 266.40(b) implies that the regulation applies to all used
oils.  However, one arrives at 40 CFR 266.4O because it is
referenced by 40 CFR 261.6(a)(2)(iii).  40 CFR 261.6 covers the
requirements for "recyclable materials," which are defined by EPA
as hazardous wastes that are recycled.  Therefore, 40  CFR 261.6
would not apply to nonhazardous used oils.  This implies  that
40 CFR 266 Subpart E does not apply to nonhazardous used  oils.

     ANSWER;  40 CFR 266 Subpart E applies to all used oil, both
     hazardous and non-hazardous.  However, the level  of
     regulation imposed under Subpart E can differ substantially.
     The used oil regulations may be clarified  in the  following
     way:

     o    Used oil that meets the definition of 40 CFR 266.40(b)
          and is burned for energy recovery is  regulated under
          40 CFR 266, Subpart E.

     o    Used oil that exhibits a characteristic of hazardous
          waste and is burned for energy recovery  is regulated
          under 40 CFR 266, Subpart E  (40 CFR 261.6(a) (2) (Ui)),
          rather than Subpart D, provided it in not mixed with a
          listed hazardous waste.  Subpart E specifier two
          classes of used oil:

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                "On-specification" used oil is subject to minimal
                requirements.

                "Off-specification" used oil is fully regulated
                under Subpart E.

     o    Used  oil that exhibits a characteristic of hazardous
          waste but is recycled in a manner other than being
          burned for energy recovery is not regulated under any
          provisions of 40 CFR Parts 262 - 266, 270, or 124
          (40 CFR 261.6(a)(3)(iii)).

     Please note that the definition of used oil in §266.40(b) is
a statutory definition — Section 1004(36) of the Resource
Conservation and Recovery Act  (RCRA).  Under the authority of
that section and Section 3014 of RCRA, Congress gave EPA special
authority to regulate used oil that is destined for recycling.
The requirement that EPA develop management standards for
recycled used oil is independent of a determination concerning
the identification or listing of used oil as a hazardous waste.
The used oil fuel standards under Subpart E were developed under
this authority.  Thus, any used oil that meets the definition of
§266.40(b) and  is burned for energy recovery is regulated under
Subpart E.

2)  Question on 40 CFR 261.31:  With regard to the 10% rule for
F-listed solvents, what does "before use" mean?  Does "before
use" mean as purchased from a manufacturer, or as used by a
generator?  For example, if a generator purchased a product that
contained 15% toluene and 85% water, then the generator blended
the material with more water to prepare the material for use at
the generator's facility, so that the resulting material
contained 8% toluene and 92% water, how would the waste generated
from using this material (as a cleaning solvent) be identified?

     ANSWER;  With regard to listed F wastes, "before use" means
     before use at the facility, not when purchased.  Thus, in
     your example, the waste solvent generated would not meet the
     listing description.

3)  Question on 40 CFR 261.31;  As I understand the F003 listing,
the product, before use, must contain 100%  (or technical grade)
F003-listed solvent(s) in order for the waste generated  from
using the solvent to be identified as F003.

     In addition, mixtures containing F003-listed solvents and
10% or more of the solvents listed in F001, F002, F004,  and F005
are identified with the waste number F003 and the waste  number(s)
representing the other solvent(s) present.  In this case,
however, how much of the F003-listed solvent(s) must be  present
in the mixture  for F003 to apply?

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     ANSWER:  You are correct in your first point that,  in order
     to meet the F003 listing description, the product (before
     use) must contain only  (i.e..  100%) the solvents listed
     under F003  (according to the regulation).   With regard to
     your second question, the regulation states that the listing
     applies to "all spent solvent mixtures/blends containing,
     before use, one or more of the above non-halogenated
     solvents, and, a total of ten percent or more (by volume) of
     one or more of those solvents listed in F001, F002, F004,
     and F005."  Should the solvent meet the ten percent criteria
     of F001, F002, F004, and/or F005 solvent and contain F003,
     the regulation (or the preamble language of December 31,
     1985) contains no guidelines for the minimum amount of F003
     solvents needed to meet the listing description; therefore,
     any amount will do so.

4)    Question on 40 CFR 261.33;  There are references in the
comment at the end of 40 CFR 261.33(d) to "commercially pure
grade and "technical grade."  How does EPA define these terms?

     ANSWER;  The Office of Solid Waste does not have a
     regulatory definition for the two terms in your question.
     However, please refer to the Federal Register preamble
     concerning the comment to §261.33(d) (45 FR 78529,
     November 25, 1980) for more details.  Potentially,
     "technical grade" or "commercially pure grade" can refer to
     any and all grades of purity of a chemical that are
     marketed, or that are recognized in general usage by the
     chemical industry.

5)    Question on 40 CFR 261.32;  Do K-listed waste numbers apply
only to wastes generated from facilities whose primary industries
are the industrial categories listed, or do they apply to wastes
generated from the manufacturing operations listed, regardless of
what the primary industrial category of the generator is?  I
understand that K062 only applies to industries within specified
SIC codes, but does this concept apply to all the other K-listed
wastes as well?

     ANSWER;  The EPA Hazardous Waste Numbers listed under
     40 CFR 261.32 are wastes from "specific sources," and the
     sources are specified in the listing description.  These may
     be the "manufacturing operations listed" to which your
     letter refers.  The primary SIC code for the facility does
     not limit the applicability of the hazardous waste listing
     description(s) to that  (or any other) facility.  For
     example, production of various organic chemicals with
     different SIC codes may occur at large, complex facilities.

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     Thank you for your inquiry,  if you need further assistance,
please contact Ed Abrams, Chief, Listing Section at
(202)382-4770.

                                        Sincerely,
                                        Sylvia K. Lowrance
                                        Director
                                        Office of Solid Waste
cc:  Waste Management Division Directors, Regions I - X
     Susan Bromm, OWPE (OS-520)

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               RCRA/SUPERFUND HOTLINE SUMMARY             9495.1990(02

                           AUGUST  1990


3.   Definition of a Used Oil Marketer

A used oil generator sends used oil to a corporation which blends it at one
site and then ships it off-site to another of its divisions,  where it is burned
for  energy recovery pursuant to 40 CFR Part 266, Subpart E. Who is the
used oil marketer in this instance:  the generator or the corporate division
which blended the oil and sent it off-site to be burned?

    40 CFR Section 266.43(a) defines the term "marketer" to include both
    "generators who market used  oil  fuel directly  to a  burner"  and
    "persons who receive used oil from generators and produce, process,
    or blend used oil fuel from these used oils (including persons sending
    blended or processed used oil to brokers or other intermediaries)."  In
    this instance, the generator is not marketing the used oil directly to
    the burner, even  though the burning and blending are performed by
    the same company.  As noted in the February 1985 Hotline Monthly
    Report Question,  one doesn't  have  to  sell the oil to a distinct
    corporate entity in order to qualify as a "marketer":  "(a)lthough the
    term  marketer  implies commercial  activity,  the   regulations
    governing used oil  fuel marketers were meant, in part, to regulate
    transportation of used oil fuel off-site." By sending the used  oil off-
    site, the blender  in this instance qualifies as a marketer, despite the
    fact that the burner and blender are different parts  of the same
    corporation.  All  the requirements of a marketer specified in Section
    266.43, therefore, must be fulfilled in this instance by the blender
    rather than the used oil generator.

Source:        Angela  Wilkes, OSW    (202) 382-7934
Research:      Ken Sandier

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                                                     9495.1991(01)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                          MM -
                                             SOLID WASTE AND EMERGENCY RESPONSE


MEMORANDUM

SUBJECT:  Determination on the Regulatory Status of  Two Waste Oil
          Management Practices Utilized by .Wyoming Coal Companies

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

FROM:     Sylvia K. Lo
          Office of Solid W

     This memorandum responds to your March  4,  1991  request  for
regulatory determinations ^regarding two different scenarios  in
which waste oil is utilized by Wyoming coal  companies.  These
determinations concern:  1) whether the waste oil is a  solid
waste when used in certain ways, 2) whether  the waste oil  is
being legitimately recycled (rather than disposed of) when used
in these ways, and 3) whether the management of the  waste  oil is
subject to Part 266 Subpart E.  Although your memorandum does not
specify what type of waste the "waste oil1* is,  our response
assumes it is "used oil."  The responses to  your questions may
change based on what the "waste oil" is.  For example,  a listed
oily waste or an unused off-specification product oil could  have
a different regulatory status than used oil  under the different
recycling scenarios you describe.

     1.  Coal Treating.

     In the first scenario, the coal companies  mix/ spray
approximately three gallons of used oil per  ton/ cubic yard of
pea-coal (coal crushed to pea size) during railroad  car loading.
The used oil is used to suppress coal dust while in  transit  to
power plants and, to a lesser extent, to increase the BTU  value
of the coal.  It is my understanding that this  is a  standard
practice in the coal industry and that the pea-coal  is  burned as
fuel.

     Because the used oil is being burned for energy recovery
(assuming the oil is a spent material rather than an unused
commercial fuel oil product) , the used oil is a solid waste  (see
40 CFR 261. 2 (c) (2)) .  Because the coal/oil is ultimately used as
a fuel, the material is subject to regulation as a "used oil"
being burned for energy recovery  (see 40 CFR Part 266 Subpart E) .
                                                          Printed on Recycled Paper

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     The toxicity characteristic and TCLP are not applicable as
long as the used oil is legitimately recycled.  (See the
exemption at Section 261.6(a) (2) (iii))..

     Insofar as such use of the used oil is a s-tandard practice
within the coal industry, our concerns regarding whether this is
a legitimate recycling practice focus on the amounts of used oil
being used and on the hazardous constituents contained in the
waste oil itself. ^(If such use was not a standard practice, the
Agency would be concerned about the actual use of the waste oil
for this purpose.)  More specifically, if used oil is used in
excess of the amounts necessary (e.g., if the oil leaks out of
the railroad cars while in transit), such use could be considered
sham recycling, subject to regulation as a hazardous waste
management activity if the used oil exhibits a hazardous
characteristic.

     2.  Use in making explosives.

     In the second scenario, the used oil is used as an
ingredient to produce ANFO (an acronym for an explosive normally
made by combining ammonium nitrate and a fuel oil, such as a
product 11/12 diesel oil blend or product 12 diesel oil) that is
used to remove overburden/coal from the earth.  The key
determination is whether such use of the used oil is legitimate
recycling (i.e., is the waste oil a legitimate ingredient in the
production of ANFO).  If the used oil is not a legitimate
ingredient, the used oil is a solid waste (and hazardous if it
exhibits a characteristic of a hazardous waste), and the use of
the used oil to produce the ANFO, as well as the use of the used
oil-derived ANFO, would be subject to permitting requirements.

     A key factor in evaluating whether the used oil is a
legitimate ingredient is a comparison of the constituents found
in the used oil to the constituents found in the analogous raw
material/ i.e. fuel oil.  To the extent that there are hazardous
constituents in the oil that are not found in the fuel oil  (or
that are present in the fuel oil, but in significantly lower
concentrations), the oil is not a legitimate ingredient in the
production of ANFO (unless it can be demonstrated that such
hazardous constituents are actually useful in the production of
the product or to the product itself).  [Note:  Other factors to
consider include an assessment of:  1) how the oil is managed
(i.e., whether the oil is handled in a manner similar to the fuel
oil before use and whether it is handled in a manner to prevent
release to the environment), 2) whether the oil is as effective
as the fuel oil when used as an ingredient in ANFO production
(i.e., whether more used oil must be used to replace the fuel oil
and whether the waste oil-derived ANFO performs as well as the
fuel oil-derived ANFO), and 3) whether excessive amounts of oil
are used (i.e., excessive amounts of oil being used could
indicate an intent to discard)].

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     If the used oil is not a legitimate ingredient in the
production of ANFO, then it is a solid waste being treated by
mixing with ammonium nitrate and the toxicity characteristic is
applicable.  And, if hazardous, the used oil may be subject to
the "open burning and detonation" requirements of 40 CFR 265.382.
[Note:  Whether the used oil-derived ANFO itself performs as well
as the fuel oil-derived ANFO is not the determining factor in
considering the regulatory status of the waste oil.  In other
words, just because a secondary material can be used as an
ingredient and still result in a usable product does not, by
itself, mean that the secondary material is not a solid waste and
nor does it mean, necessarily, that the processing is legitimate
recycling.  Rather, the determining factors must include the
consideration of the constituents in the secondary material and
the role these constituents play in the production of the
product.]

     You mentioned in your letter that the Mine Safety and Health
Administration (MSHA) is currently allowing/monitoring this
practice at Bridger Coal Company from a health and safety
standpoint.  It should be noted that although there is agency
overlap between EPA and MSHA regarding health, safety and
environmental considerations, neither agency's jurisdiction
supersedes the other's.  For example, if EPA determined that the
used oil is a legitimate ingredient in the production of ANFO,
this would not absolve the coal company from its regulatory
obligations under the MSHA.  Likewise, if MSHA grants approval of
the use of used oil as an ingredient in ANFO, this does not
absolve the company from its regulatory obligations under RCRA.
Nonetheless, you may find it useful to share this response with
your colleague from MSHA, Mr. Dick Fischer, whom you mention in
your letter.

     I hope this has helped to resolve the issues you have
presented regarding the current regulatory status of used oil
•used as a dust suppressant in the transportation of pea-coal and
as an ingredient in the production of ANFO.  As you know, we are
currently developing regulations applicable to the management of
used oil.  If you have any further questions regarding the
regulation of used oil or the determination of legitimate vs.
sham recycling, your staff should contact Denise Wright  (for used
oil) or Mitch Kidwell  (for recycling) at FTS 475-8551.

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                                                         9496.1990(01
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON. D.C.  20460
  JUL 16 1990                                            OM1CIO,
                                               SOLID WASTE AND EMERGENCY RESPONSE


Ralph Eschbom
DuPont Recovery Management Systems
Suite 207, Webster Building
3411 Silverside Road
Wilmington, DE 19810

Dear Mr. Eschborn:

     This letter is in response to your April 5, 1990 letter to Matt
Straus regarding DuPont Recovery Management Systems' proposal to
collect, fortify and recycle previously used fixer.  In your letter
you asked EPA to make a determination on the applicability of the
Resource Conservation and Recovery Act (RCRA) Subtitle C requirements
to the recycling process.

     As I understand your proposed recycling process, photographic
fixer that is used in the photographic film development process would
be drawn off from the working baths once its concentration of
ammonium thiosulfate reaches a certain level (targeted at 175 g/1 per
attachments to your letter, and not to fall below 150 g/1 per your
letter).  The used fixer solution would then be transported to your
Regional Service Centers, "refortified," and then sold back to the
customers for use in developing film.

     The issue which is raised is whether or not the used
photographic fixer solution meets the definition of a "spent
material," as the RCRA regulations define the term in 40 CFR
261.l(c)(1).  According to Section 261.2(c)(3), spent materials that
are reclaimed are solid wastes (and, if they are also hazardous
wastes, must be managed according to the RCRA hazardous waste
regulations).  The definition of a spent material is "any material
that has been used and as a result of contamination can no longer
serve the purpose for which it was produced without processing."
(The electrolytic treatment, filtration, and "fortifying" that you
propose would appear to be a processing/reclamation activity.)

     It appears that the used photographic fixer solution meets  the
definition of a spent material, even though it may still have enough
ammonium thiosulfate to function effectively as a fixer.  Because the

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used fixer, as a result of contamination, is being removed for
processing it is "spent" as far as the customer is concerned (even
though, should the customer decide to do so, s/he could continue to
use the fixer for its original purpose).  You mention the
similarities between this and the situation faced by persons
reclaiming spent solvent.  A similar situation exists with respect to
solvent reclaimers who arrange regular pick-ups of used solvents (for
example, in vapor degreasers).  Although the solvent may still be
useful in that its contamination level does not mandate its
reclamation, when the reclaimer removes the customer's solvent, it is
•spent" insofar as its potential use by the customer.

     In contrast, we stated in the January 4, 1985 preamble to the
regulation defining materials as solid wastes (50 Federal Register
624) that when solvents used to clean printed circuit boards are no
longer pure enough for that purpose, but are still pure enough for
use as metal degreasers, they are not yet wastes because the solvent
can continue to be used for its solvent properties.  Similarly, if
you were to remove used fixer from one customer's site and sell it to
another customer for use as photographic fixer, that continued use as
a fixer would mean the fixer was not a waste.  However, the recycling
scheme you have proposed does not fit the "continued use" situation;
the used fixer is being "fortified," or reclaimed.  Thus the used
fixer is a solid waste, and, if a hazardous waste, must be managed
according to the hazardous waste regulations.

     In the recycling situation you have outlined, there are reduced
requirements in the federal hazardous waste program for reclaiming
precious metals.  (Silver is one of the precious metals that can be
reclaimed under the reduced recycling regulations.)  Handlers of
recyclable materials from which precious metals are reclaimed are
directed by 40 CFR 261.6(a)(2)(iv) to the reduced recycling
regulations in 40 CFR Part 266, Subpart F.  Those regulations require
only that the generator, transporters, and storers notify EPA of
their hazardous waste management activities, comply with the use of
the manifest, and keep records to show that they are not accumulating
the materials speculatively.

     In addition, some of your customers may qualify for the
exemption froa use of the manifest found at 40 CFR 262.20(e);
however, you have not provided us with information for us to make a
determination whether they may qualify.

     It is encouraging to learn that you are proposing a recycling
strategy for hazardous wastes; EPA is investigating ways to encourage
environmentally protective recycling.

     Finally, the regulations described in this letter are the
federal hazardous waste regulations.  States and localities may have

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more stringent requirements, or requirements that are broader in
scope.  You will need to contact them to determine what their
requirements are.

     If you have further questions, please contact Becky Cuthbertson
at (202)475-9715, or John Lank at  (404)347-4552.
                                      Sincerely,
                                      Sylvia Lovrance, Director \s
                                      Office of Solid Waste
                                                                ..   r
                                                                , trf  d^f—~-
cc: John Lank

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                                                        9496.1991(01)
     T,
      «        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      *                   WASHINGTON, D.C.  20460
                            AUG-5199!                 OFFICEOF
                                              SOLID WASTE AND EMERGENCY RESPONSE

MEMORANDUM

SUBJECT:  Regulatory Status of Residues From Secondary Lead
          Smelters That Recycle KC69 Wastes

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

TO:       Waste Management Division Directors, Regions I-X

     It has come to my attention that there is an issue  about the
status of wastes such as slags and drosses that result from
secondary lead smelting when the smelter returns its emission
control dust/sludge (Hazardous Waste K069) to the smelting
furnace as feedstock.  This memorandum reiterates that such
residues are hazardous wastes subject to Subtitle C regulation  if
they exhibit a hazardous characteristic fe.a.. toxicity  for
lead), and it discusses the Agency's intent regarding whether
such residues are considered listed hazardous wastes pursuant to
the "derived from" rule.

     EPA stated in the February 21, 1991 "Boiler/Industrial
Furnace" Final Rule ("BIF Rule") (56 Fed. Reg. 7134, 7144) that
residues from metal recovery of listed hazardous wastes  normally
are considered to be "derived from" treatment of hazardous waste
and thus listed hazardous waste themselves.  Although this
general principle remains valid, we note that EPA did not intend
for the "derived from" rule to apply to K069 slags and drosses
that result from returning the K069 to the smelting furnace  as
feedstock.  The Agency initially attempted to achieve this result
through application of the so-called "indigenous" principle  to
K069 slags.  See August 17, 1988 "First Third" Land Disposal
Restrictions Final Rule, 53 Fed. Reg. 31138, 31198-99.   The  June
1, 1990 "Third Third" Land Disposal Restrictions Final Rule  (55
Fed. Reg. 22520, 22565-68) also presumed this result in  its
discussion of slags from secondary lead production, which were
discussed exclusively in the context of D008 wastes.  However,  a
subsequent decision by the U.S. Court of Appeals, in American
Petroleum Institute v. EPA. 906 F.2d- 726, 740-42 (D.C. Cir.
1990), called into question the validity of the "indigenous
principle" as EPA had applied it.  (See BIF Rule, 56 led. Reg.  at
7142, 7144, for a brief discussion of the court's decision.)
Although EPA maintained in the BIF Rule that residues from
treating listed hazardous wastes in metals recovery processes

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generally are subject to the "derived from" rule, the Agency
overlooked the recycling practices in the secondary lead industry
in promulgating that rule.  It was not our intent that the
"derived from" rule apply to secondary lead smelting residues
that result when K069 dusts are recycled to the smelting process
as feedstock.

     We expect to address these issues more formally in the
context of upcoming rulemakings.  In the interim, please contact
Mike Petruska at 475-8551 if you have any questions.

cc:  Regional Counsel RCRA Branch Chiefs
     Gary Jonesi, OE-RCRA
     Steve Silverman, OGC
     Susan Bromm, OWPE-RED

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                                                   9497.1991(01)
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C.  20460
                            MAR   4 /£(
                                                         OF
                                            SOLID WASTE AND EMERGENCY RESPONSE
Richard A. Svanda
Director
Hazardous Waste Division
Minnesota Pollution Control Agency
520 Lafayette Road
Saint Paul ,„ Minnesota  55155-3898
Dear Mrf/Svanda:
     This letter responds to your January 16, 1991 request  for  an
interpretation concerning the regulatory exemption found at 40
CFR 261.6(a)(3)(ii) for "used batteries  (or used battery cells)
returned to a battery manufacturer for regeneration."   In your
letter you explain that the Minnesota State Legislature has
passed a bill making it illegal to dispose of four types of waste
battery cells in municipal solid waste landfills.  The  bill went
further by requiring manufacturers to establish a system for
proper handling and disposal of such batteries.

     You are requesting that EPA interpret the exemption for used
battery regeneration to include material recovery.  In  this way,
the management of the batteries would .be exempt from the
otherwise applicable hazardous waste regulations  (e.g.,
manifesting and storage), thus facilitating the recycling of
these materials.  As alternatives to this interpretation, you
request that EPA either:  1) revise 40 CFR Part 266 Subpart G,
"Spent Lead-Acid Batteries Being Reclaimed," to include all waste
batteries being reclaimed; or 2) recommend to the State
regulatory agencies that they use enforcement discretion in
implementing the applicable regulations.

     In promulgating the exemption for used batteries that  are
"regenerated," the Agency discussed its reasons for doing so (see
the April 4, 1983 proposal preamble, 48 FR 14496).  The main
reasons were that there was minimal risk of environmental damages
and that the activity of regenerating the batteries was very
similar to the recycling of a commercial product.  Such
activities are generally not considered waste management
activities, but are more akin to a manufacturing operation. In
the January 4, 1985 final rule preamble  (see 50 FR 633), EPA
defined reclamation to include the "regeneration" of waste
materials and the processing of waste materials to recover  usable
products, but not all reclamation is exempt.  In the preamble
discussion, the Agency drew a distinction between regeneration
(i.e., processing to remove contaminants in a way that  restores a
                                                         Printed en Recycled Paper

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product to its usable original condition, as in the reclamation
of spent solvents through distillation) and material recovery
(i.e., processing to recover usable material1 values as the end-
products of the process, as in the reclamation of metal values by
the smelting of a secondary material).  EPA's long-standing
policy is that smelting is not regeneration, and batteries sent
for smelting are therefore not exempt under this provision, i.e.,
the definition 6f "regeneration" is well established and does not
include metals recovery.  A change in the meaning of
"regeneration" is not interpretive, but would require a
regulatory change (i.e., amending 40 CFR 261.l(c)(4)), and would
have far-reaching implications, e.g., the standards at Part 266
Subpart G for spent lead-acid batteries that are reclaimed would
not apply to anything if the spent lead-acid batteries were
exempt.

     Regarding your request that the Agency extend the current
reduced regulatory requirements applicable to spent lead-acid
batteries that are reclaimed to all waste batteries, EPA may
consider such an amendment to encourage the recycling of waste
batteries provided that protection of human health and the
environment can be ensured.  The reasons for the special
requirements for spent lead-acid batteries destined to be
reclaimed were discussed in the April 4, 1983 proposal (see
discussion 48 FR 14498-99) to the January 4, 1985 final rule.
While EPA required hazardous waste permits for storage at
reclamation sites (e.g., secondary smelters and battery
crackers), EPA did not believe that regulatory controls on
generators and transporters were necessary because there were
other incentives outside of RCRA that would ensure that the
materials would both arrive at their intended destination and
would not be improperly managed before their reclamation.  For
example, spent lead-acid batteries were an established valuable
commodity and were customarily reclaimed (indeed, the secondary
lead smelting industry is based on the reclamation of lead-acid
batteries) and mishandling during transportation was considered
unlikely due to Department of Transportation requirements under
40 CFR 122.  Also, the Agency believed that the storage of the
spent batteries by retailers, wholesalers, or local service
stations would be properly managed because these establishments
rely heavily on good public relations with the consumer.  To the
extent that the same considerations are evidenced in the
management of other types of waste batteries, the Agency may
consider providing a similar regulatory framework in a future
rulemaking.

     Finally, with regard to your third alternative, it is
certainly within the purview of an authorised State to use
discretion in how it implements its own hazardous waste program,
including how it sets its enforcement priorities.  However, EPA
has a policy against giving definitive assurances, written or
oral, outside the context of a formal enforcement proceeding,

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that EPA will not proceed with an enforcement response for a
violation of an environmental protection statute or regulation.

     We share your interest in finding alternatives to control
the disposal of potentially hazardous waste streams that are
typically managed in municipal landfills.  The situation you
described will be considered in efforts underway to address
multiple concerns regarding the regulation of hazardous waste
recycling.  If you have further questions regarding the
regulations applicable to these waste types, you may contact Mr.
Mike Petruska, Chief of the Regulatory Development Branch, at
(202) 475-8551.
                                   Since
                                   Sylvia
                                   Director
                                   Office/ of

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                                                        9497.1991(02)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                                MAY 3
                                                      OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
Mr. Paul E. Pentz
Executive Vice President, C.O.O.
SERVISTAR Corporation
P.O. Box 1510
Butler, PA  16003-1510

Dear Mr. Pentz:

     This letter responds to your  letter of May 13,  1991
concerning the regulation of nickel•cadmium  (NiCd) batteries
under the Resource Conservation and Recovery Act  (RCRA) and state
legislation requiring manufacturers to take back  spent batteries
(take-back programs).  We appreciate your interest in developing
recycling programs for NiCd batteries and in the  RCRA regulation
of these prpgrams.  We commend ypur recycling efforts and  hope
that you will be developing recycling systems not only in  states
passing take-back legislation, but nation-vide.

     We are considering the points that you raise in your  letter
concerning the difficulties involved in implementing recycling
programs for NiCd batteries if they exhibit the TC.  We are
currently examining the available  options to determine how to
facilitate the kind of take-back system you describe.  We  expect
it will take us several more weeks to assess options and reach a
tentative decision on how to best  address your concerns.   At that
time, we will notify you of the results of our analysis and of
our plans to implement the decision.

     To ensure that you are informed about our approach to this
issue, there are several options that we are exploring.  First,
we are investigating what could be accomplished in the short term
to alleviate the problems you have identified.  One  possibility
is to extend the current regulations governing lead-acid battery
reclamation to spent NiCd battery  reclamation.  As part of this
effort, we will be .evaluating issues such as the  size of the
problem, the hazards posed by NiCd battery waste  management and
recycling practices, and the feasibility of possible solutions.

     Second, over the longer term, we are currently  analyzing  the
RCRA regulations to determine how  they could best be modified  to
encourage environmentally sound recycling of hazardous wastes.
In particular, we are evaluating how to address reverse
distribution systems that involve  the returr of hazardous  wastes
                                                          friMtd on Rtcfdtd Paptr

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to product manufacturers.  In any case, we will continue with
this longer term effort to examine fully how best to address this
difficult issue, including the possibility of changes to the
regulations to accommodate take-back systems.


     Finally, we would like to be sure that you are aware that
under the current federal regulations, hazardous wastes generated
by certain persons are not subject to the full hazardous waste
regulations even when subsequently collected and managed by
others.  Particularly, these excluded wastes include household
wastes generated by individuals at home (40 CFR 261.4(b)(l)) and
hazardous wastes generated by conditionally exempt small quantity
generators (generators who generate a total of less than 100
kilograms of hazardous waste per month; 40 CFR 261.5).

     Thank you for your interest in the hazardous waste
regulations concerning recycling of NiCd batteries.  Should you
have any further questions regarding this issue, please contact
Mike Petruska, Chief of the Regulatory Development Branch, at
(202) 475-8551.

                              Sincerely,           /
                              David Bussard
                              Director
                              Characterization and Assessment
                                Division

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Permitting Policies
                                      ATKl/1112/29sm

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9501 - PERMITTING
PRIORITIES
                  ATKl/l 104/52 kp

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                                                                9501.1982(01]


                                   JVJL   3  SB
   Guidance for Permitting of Hazardous VJaste Incinerators


   John Skinner,  Director
   State Prograns and Resource Recovery Division

   Regional Hazardous Waste Division Directors


      As you are aware,  the amendment for hazardous waste inciner-
 ators was published: in the Federal Register OB June 24,  and was
 accompanied by a notice announcing that the suspension on calling
 Part B's for incinerators has been lifted*  The "information burden"
 clearance frore OMB was also received recently (clearance 92050-0002).
 The Agency is thus in a position to begin the permitting process for
 these facilities.  This memorandum is intended to provide guidance
 as to the priorities which should be followed in formulating
 regional plans for permitting incinerators.

      In Rita Lavello's menorandun of June 18 to the Regional Admin-
 istrators various targets were set for the numbers of incinerator
 permit* to b« issued in FY 93 and the nunb«rs to be called in 7Y 83
 for issuance in FY 84.   These target* were set for each region on
 the basis of the permitting resources projected to be available.
 Asauniug roughly a year's time fir on the tiae a permit is called to
 when it is issued, adherence to the targets will necessitate calling
 a substantial number of incinerator Part B's during the remainder
.of this fiscal year, and daring the first quarter of FT 83.  Inciner-
 ators mast be considered to be the first priority of the RCRA
 permitting program in the coming months.

      In establishing priorities for permitting of hazardous waste
 incinerators we expect to use the same general approach we have
 been using for storage facilities.  That is* new facilities yill
 be assigned the highest priority for permit issuance, and existing
 facilities should be prioritized according to their potential for'
 causing environmental harm.  The following are factors which
 should be considered in ranking existing incinerators for calling
 Part B applicationst

             o Age of the facility
             o 8iE*
             o Proximity to population centers
             o Complexity of the waste mixtures incinerated
             o Toxicity of the wastes incinerated
             o Prior history of poor operation or air pollution
               violations

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     It should be expected that nost incinerator facilities will
also have some type of storage capability at the site.  In such
cases the Part B should be called for both the incinerator and the
storage facilities.  These storage facilities can be counted against
the permitting targets in Attachment 1 of Rita Lavelle's June 13
nenora&dun, according to the specified substitution ratios.

     If there are any questioni regarding tht incinerator permitting
program,  please contact Randy Chrisnon of my staff at 382-4535.

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                                                              9501.19o2(02)
         29  DEC 82
MEMORANDUM

SUBJECT:  RCRA Land Disposal Permit Strategy

FROM:     John H. Skinner, Acting Director
          Office of Solid Waste

TO:       Regional Hazardous Waste Division Directors
     On January  26,  1983, the new Part  264 hazardous waste land
disposal regulations will become effective, and EPA will begin
the process of requesting Part B applications for selected land
disposal facilities.  This memorandum is intended to provide
guidance on selecting facilities for priority attention in this
initial phase of the land disposal permit program.

     The decisions as to which land disposal facilities will be
permitted first, and why, must be made  carefully.  Each of these
permit actions will  require a considerable investment of the
Agency's permitting  resources, and they must therefore be targeted
to achieve maximum environmental benefits.  In addition, this
permit program will  be highly visible and subject to intense
scrutiny by the public and the regulated community.  To assist in
making the initial call-in decisions, we strongly urge that the
states be consulted  and actively involved in the selection process.
Some states may already have developed  their own land disposal
permit strategies, and these should be  accommodated by the
regions to the extent that they do not  conflict with EPA's
objectives.

     The primary objective of the RCRA  land disposal permit
program must be to maximize the benefits to public health and
the environment.  This is consistent with our previous policies
for permitting hazardous waste storage  facilities and incinerators,
The following priorities should be assigned by the regions in
assessing Part B call-ins for land disposal facilities:

    —Facilities which are known to be  sources of groundwater or
      surface water  contamination.  Highest priority should be
      given to cases where sole source  aquifers and other drinking
      water supplies are being endangered.  Information regarding
      groundwater contamination should  be solicited from the
      states, and may also be available from interim status
      quarterly reports and other sources.

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                                     -2-


     —Facilities which may be causing environmental damage.  This
      could  include  facilities which have histories of poor
      operating practices, prior enforcement actions, inadequate
      liner  systems  (where applicable), or inspection reports
      indicating improper facility designs or unsafe management
      practices.  Facilities which have yet to report groundwater
      monitoring data, or for which data is questionable should
      be examined closely for permit action.  Again, primary
      emphasis should be on protection of valuable aquifers and
      other  water supplies.

     —Facilities which pose potentially significant environmental
      risks.  Assessment of environmental risks could include
      the proximity  of the facility to population centers, aquifers
      and surface waters, facility size, nature of the wastes
      being  disposed of, and other environmental factors.


     In addition to  these primary environmental considerations,
several other factors should be taken into account:

     New Submissions.  Permit applications, for new facilities
should continue to receive high priority on the region's permit-
ting resources.

     Multi-Process Facilities.  It has been the Agency's policy
that facilities which contain more than one type of process
should be covered by one compreprehensive permit.  As a result,
some high priority incineration facilities have not yet been
called since they are located with land disposal operations.
The  regions  may wish to target these facilities for the first
round of call-ins.

     Monofills and Neutralization Surface Impoundments.  As
explained in the preamble to the new Part 264 land disposal
regulations, EPA currently plans to propose adjustments to its
regulatory approach  for monofills and neutralization surface
impoundments.  Part  B's for these two types of facilities should
therefore be given lower priority for call-in unless there is
evidence that such a facility is causing environmental damage.

     Effects on Competition.  It is possible that permitting of
a facility or facilities could have some effect on business
competition.  This is most likely in a case where a commercial
land disposal facility is required to obtain a RCRA permit while
a nearby competitor  is allowed to remain under interim status.
Regions should consider effects on competition in formulating
their overall call-in strategies (for example, calling all
commercial landfills in an area at the same time).

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                                     -3-
     Although the Agency has not yet received OMB approval to call
Part B's for existing land disposal facilities, we expect to
receive approval by January 26.

     The importance of this permitting effort demands that EPA
begin its implementation as soon as it is legal and practical to
do so.  I therefore request that the initial round of call-in
letters be prepared in advance by each region so that they can
be mailed immediately after the regulations become effective.
Subsequent call-ins to fulfill regional target commitments
should be timed so as to balance workload demands.

     If there are any questions or comments concerning strategies
for calling land disposal facilities, please contact Steve Levy
at 382-4740.

cc:  Regional Hazardous Waste Branch Chiefs
     S. Napolitano
     B. Meddle
     S. Le vy
     J. Lehman

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                                                             9501.1984(01;


                             NOV  - 9 1964
SUQJECTi  RCP.A Reauthorization Statutory interpretation lit
          Immediate Permit Requirements  *

PROMi     Loe M. Thomas
          Assistant Administrator

TOt       Addressees


     On November 9, President Reagan signed The Hazardous and
Solid Haste Amendments of 1984.  These amendments to the
Resource Conservation and Recovery Act (RCRA) will have a
profound effect on almost every aspect of the management of
hazardous waste in thin country.  Provisions are effective
in both authorized and unauthorized States.  CPA is responsible
for implementation until a State is authorised for the new
provisions.

     This memorandum alerts CPA Regions and States to those new
provisions of the Act immediately applicable to RCRA permits
issued as of the date of enactment (DOE), November 9, 1984.
Permits in process, including draft permits, must address the
newly effective requirements before issuance.  It is important
to note that in authorized States, EPA is responsible for
incorporating the new provisions into the permit.  Therefore,
issuance of a valid RCRA permit in authorized States must be
accomplished through joint penult processing with EPA until
States are authorized for the new provisions.

     To assist in identifying the extent to which draft permits
and permits under development, as well as permit applications,
must now be revised* the attached table briefly describes, by
facility type, the new requirements which are to be immediately
reflected in final permit conditions.  The attachment does not
include provisions that affect the perait program at later dates,
nor does it cover early enactment provisions beyond permitting.
Subsequent memoranda will describe the full range of pew RCRA
provisions that affect hazardous waste management programs at
the Federal and State levol,  including joint permit processing,
and will include a schedule of implementation guidance*

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                               -2-


     While new requirements for permit applications already
 in process may delay the issuxnc'* of sone permits, other perait
 processing activities will not bo substantially affected.
 Activities that should continue include:

     • Requesting land disposal permit applications.  However,
       under the new legislation, within one year of'enactment
       all existing interim status land disposal facilities
       must submit thoir Part B permit application, as well as a
       certification of compliance with applicable ground-water
       and financial responsibility requirements, in order to
       retain interim status.  Because oH tho new statutory
       requirement, the timeframa provided in the National Permits
       Strategy for requesting remaining land disposal pernit
       applications, including the one year extension into PY 1986,
       is eliminated.  Current schedules for calling in land
       disposal facilities should be reevaluated and new schedules
       should be, developed which will conclude all Part B requests
       for existing interim status land disposal facilities within
       the first six months of enactment;

    . • Requesting remaining incinerator applications,  as
       scheduled;

     * Processing interim status closures.  However, owners
       and operators of land disposal facilities that received
       waste after July 26, 1982, and closed between that date
       and January 26,  1983, should be advised in writing that
       the new RCRA amendments extend the Part 264 ground-watter
       monitoring and response requirements to them.

     • Joint inspection and permit writer visits within ninety
       days of the permit application request should continue.
       These visits should be used to assist facilities in under-
       standing new requirements* as well as to offer them
       advice on application requirements that have not changed;

     • Continuing technical evaluations of those parts of the
       ponait applications that are not affected b*y the RCRA
       amendments;

     * Preparing public participation plans for the environmentally
       •ignificant facilities whose permit applictions are in
       process or^rill be requested in PY 1985.

     Por your information, we are currently in the midst of a
process to identify and analyze the issues that reauthorization
poses for near-term implementation of the RCRA program.  Our aim
is to prepare the policies and guidance that tho Regions and.
States need on specific reauthorization issues according to their

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                               -3-
 algnificance and  immediacy.  Additional  'RCRA Reauthorization
 St-atutory  Interpretations" will t>«  issued periodically to alert
 Regions, States and other affected or  interested organiiations
 to  the  interpretations of various provisions such as those
 described  in the  attachment, as well as  to key changes in program
 directions and policies .necessitated by  the latest RCRA amendments.

     Until guidance Is provided on the new permit requireaents
 hiqhlighted in the attachment, I encourage you to call
 Peter Guerrero, Chief, Peraits Branch  (FTS-382-4740) to discuss
 their scope, policy interpretations and 'implementation procedures.

 Attachment

 Addressees!

 Regional Administratorst Regions I-X
 Regional Waste Management Division Directors, Regions I-X
Hazardous Haste'Branch Chiefs, Regions I-X
 Regional Counsels, Regions I-X
 State Hazardous Waste Prograa Directors
Assistant Adainistrator for Enforcement «nd Compliance Monitoring
Associate General Counsel for Solid wast* and Emergency Response
OSKER Office Director*

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                                                                 9501.1985(01
                                 OCT
       i,U3JEC7i   Application of  ;.'ov«Tbcr  1CJC3  Deadline  to
                           as and  Post-Closure  ferTits
                             ofi^3   1
       i-'.CMi      J. Winston Porter "
                  Assistant Administrator

       T0»        :!arr>  "erayJ.arian,  Director
                  Toxics and  «aate . .anacejnent Division


            In your memorandum of  August 30, you  requested cur
       interpretation regarding application of  the iiovenber  1988 cead-
       line to vast* piles and post-closure permits.  We agree with
       your conclusion that all waste piles are subject  to $213(c) of
       liSWA requiring issuance or  denial of all land disposal permit
       applications by November 1988*  This interpretation is consistent
       with $201(k) of HSWA which  includes waste  piles in the definition
       of land dispoeal.

            With regard  to the priority of post-closure  permits, we
       recognise the difficulty in making  final determinations on all
       land disposal applications  by  November 1988.  We  must* however,
       continue to strive to meet  that goal*  Therefore, in  order to
       achieve the greatest environmental benefits from  available re-
£      sources, high priority should  be placed  on the processing of
       operating land disposal unit applications  and Part 265 closures.
2      For those land disposal units  where releases are  likely or have
       already been Identified, either $3008(h) orders or 53004(u)
       authority through post-closure permits should be  used.  The
£      selection of the appopriate mechanism for  addressing  these
£      releases should be set through the  facility management planning
 i      process.  The issuance of post-closure permits for the remaining
^      land disposal units a lower priority.

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                          9501,1986(01,
                              sen I  see
Mr.  Kenneth  L. Vaesche
Director
Waste Management  Dlvliion
Colorado  Department of Health
4210 East llth Avenue
Denver, Colorado   80220

Dear Mr.  Waeache:

     Than* you for your  letter of July 25, 1986, In which you
identified potential Issues associated vith the permit application
for  destruction of nerve agents at the Pueblo A nay Depot.  Because
Congress  mandated, under P.L.99-143, that the Amy destroy the
U.S. stockpile of nerve  agents by September 30, 1994,  EPA considers
the  permitting of incinerators to destroy the nerve agent stocks
a  high priority.   We set January, 1988. as the target dace for
tinai issuance of the KCRA permits because we anticipate it will
take at least several years to construct these incinerators once
the  RCRA  permits  are issued.  The high permitting priority tor
the  nerve agent projects is rerlected in FPA's FY-1987 RCRA
Implementation Plan.

    We recognise  that Colorado has other high priority work
involving  land disposal  facilities.  However, Colorado and EPA
Region VIII oust  factor  the Pueblo permit application into the
State grant workplan negotiation process to ensure that it receives
priority  attention in FY-1987.  If you believe the State does not
have adequate reaourcea  to process this application, you should
consider  allowing  EPA to asaume the lead for processing it,
though Colorado would be responsible tor issuing the permit.

     EPA  has stressed to the Army that they are subject to State
requirements, both technical and administrative, which may be
more stringent and alto  more extensive (i.e., siting approvals)
than the  Federal  requirements, and that the Army needs to work
vith the  States where their facilities will ba located to ensure
that all  State requirements are met in a timely manner.  EPA  (HQ)
ia heavily involved in thia project to provide technical guidance
and assure coordination  between the Army. EPA Regional Officea,
and the States.   Thia involvement was supported by the States.
Regions,  and the  Army, at the May 15-16, 1986, EPA-State-Army
meeting.   Chip Stewart of the Colorado Department of Health
represented Colorado at  that meeting.

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      The yenitting tlmefrane that we have  established  tor  Che
 Army to Beet Che Congressionally Mandated deadline  of  1994  if,
 admittedly,  ambitious.   There are many aspects  of this  prolect,
 soch as Part B application deficiencies and siting  difficulties,
 that nay affect the ability to meet the mandated deadline.  The
 Any is well aware of the problems and is working with  the  States
 and Regions  to resolve  these issues early in the process.   The
 EPA-State-Any workgroups which have been active this  summer  is
 one atteapt  to ensure chat Che Amy's applications  are  complete
 and thereby  minimise the need for Multiple  and  tiae-consualng
 Notices of Deficiency (HDDs).  (Chip Stewart has been a workgroup
 participant  and we appreciate his input.)

      With regard Co Che siting issues, the  Any has launched an
 expanded public intonation program in an atteapt to aake the
 public  aore  receptive to the new facilities.  The Any  has  held
 two public aeetlngs on  their Environmental  Impact Statement (EIS)
 for this project in Pueblo, Colorado, on April  28,  and  August 21,
 1986.   Similar public meetings were held lor the other  proposed
 sites,  which are located throughout Che U.S.  The purpose of the
 meetings on  Che £15 is  Co inron the public about the  strategy
 and the risks posed by  the nerve agent disposal program, and  to
 aolicit comments regarding the EIS.  The deadline for public
 comment on che EIS is Sepcenber 23, 1986.   It is ay understanding
'that the Any plans to  have an expanded public  intonation  program
 during  FY 1987 for all  ttteir permit applications.

      I  appreciate your  concern regarding Che difficulties which
 may be  encountered in processing the permit application for the
 Pueblo  Any  Depot and your raising them to  me at chis  time.   I
 urge you co  raise che permitting priority issue and other resource
 concerns during che annual granc negociaclon process wich the  EPA
 Region  VIII  Office, which I believe is underway now.

      Please  feel tree Co concacc me it you  have additional  questions
 or  concerns.

                                       Sincerely,
                                       Arthur Glater
                                       Chief, PAT Incinerator Sacclon
cc:   Bruce  Waddle                Larry Hapaneky
      Lie  Coesworth              Denise Hawkins
      Ken  Shueter                Bob Duprey
      Robin  Anderson             Jon Teagley

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                                                        9501.1987(01)
      cr:-
KEMQRA-SPL'N

SUBJECT:  Land Disposal Facilities Not on a  Permitting or
          Closure Schedule

PROKi     Marcia E. Williams, Director  j£> rf/s*** *"
          Office of fcoiid Waste

TOi       Hazardous Waste Division Directors, Regions 1-10


     In hoverber 1986, OS* began  tracking progress  toward the
November 1988 permitting deadline in the RCRA Permit Activities
Monthly Report.  This report  includes a number ot facilities
that are not on a multi-year  strategy for permitting or
closure.  These facilities lack a multi-year strategy for a
number of reasons.  In soite cases, the facility no  longer
functions as a RCRA site (e.g., the facility is bankrupt or
under Superfund's jurisdiction),  or is not considered to be
a land diapoaal facility but  has  not been removed fror. the
land disposal universe.  However, in most cases the facility's
fcCRA regulatory status is unresolved.

     All facilities that are  RCRA-regulated  facilities are
subject to the permitting deadline.  Delays  in determining
their regulatory status could lead to missing the permitting
deadline at these facilities.  As ft result, we should resolve
the regulatory status of these facilities as soon as possible.

     Attached to this memorandum  is a list of these facilities
in your He9ion (this list is  found in OStf's  RASrtiKU in the
Multi-Year Strategy section under the title* "List  of Facilities
Liot on the Disposal Multi-Year Strategy with C305-D in HfcDMS".
All Keyions have access to the RASMENU.).  Please resolve the
regulatory status of these facilities by November 1, 1967,  in
the following fashioni

     1).  Send a permitting or closure nulti-year strategy
          for the land disposal facilities on this  list that
          are subject to RCRA regulation to  George  Garland,
          Chief of the State  Program Branch.  ObW's
          Information Management  Staff  (IMS) will then assign
          the appropriate multi-year etrategy designation to
          these facilities.

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     2).  Replace the C305-D cesignation in HWCMS with the
          correct C305 designation for any facilities that
          are no longer subject to kCRA regulation (e.g.,  if
          a facility is actually only a RCRA storageTacility,
          it should become C305-S, if it ia not a RCRA-
          regulated facility, C305 should be blank).

     3).  Keep the C305-D designation for all bankrupt
          facilities or facilities now subject to Superfund.
          OSWEfi is currently creating a new designator in
          HHDHS that will identify these facilities.

     In a nunber of cases, Regions have discovered operating
land disposal facilities that do not have either interim
status or a peraiL»-0|>«faLiuyas land disposal facilities.
When these facilities are discovered, they are entered into
tfWDMS as C305-D facilities.  They automatically appear in
the "not on a persit or closure track" category.  IKS moves
these facilities into the closure track after consulting
with the Region involved.  We will continue this practice
for all newly discovered illegal facilities.

     If you have any questions, please contact Chat Miller of
the Information Management Staff on  (FTS) 382-2220.

Attachment

cct  Jack McGraw (without attachment)
     KCRA Permit Section Chiefs, Regions 1-10
     HWDMS RPO's, Regions 1-10
     Kate Bouve (without attachment)
     Pruce Weddle (without attachment)
     Ken Schuster (without attachment)
WH-563:CM:cnt382-2220t9/11/87tCM's disk7doc99

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              UNITED STATES ENVIRONMENTALJKOTECTIOI1.JCINCY       9501.1937(02)
                             OEC\ A
MEMORANDUM

SUBJECT:  RCRA Program  Directions  for  FY  1989

FROM:     J. Winston  Porter
          Assistant Administrator

TO:       Regional Administrators
          Region  I-X

     During the development  of  the FY  1988  RCRA  Implementation
Plan, several Regions expressed a  desire  to take a more
integrated approach to  addressing  environmentally-significant
facilities and activities.   I agree that  as we move  beyond
the November 1988 land  disposal permitting  deadline, we  need  to
focus oven more of our  resources on corrective action and closure
at the entire universe  of environmentally-significant facilities.

     To direct our resources toward these goals, we  will need
effective ways to identify the  most significant  facilities.
With the development  over the last few years of  facility
management plans  and multi-year strategies, we began a process
to establish priorities based on the environmental significance
of facilities.

     In an effort to  refine  and apply  this  process more  broadly,
some Regions have established systems  to  rank all facilities  and
activities based  on potential threats  to  human health and environ-
mental significance.  As we  incorporate an  even  greater  emphasis
on health and environmental  benefits in our decision making  and
priority setting, it becomes increasingly important  for  RCRA
program managers  to continue to refine and  apply their screening
and ranking systems to  identify those  facilities posing  the
greatest health and environmental  risks.

     In PY 1989,  efforts to  establish  priorities should  be
expanded to encompass the entire universe of facilities, including
all treatment, storage, and  disposal facilities, whether operating
or closing.  We do not  envision this to be  a highly  resource-
intensive effort  but  rather  anticipate that existing data sources
and Regional and  State  knowledge of site  conditions  can, to  a
large extent, be  used to establish priorities.   In addition,

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                        rr""HmrilT1  PROJECTION AGENCY
                             -2-
since a number of these priority facilities may ultimately be
eligible for management under Superfund, Superfund resources
also will be available to assist in  the  initial screening and
ranking through the PA/SI process.   This preliminary establish-
ment of priorities is an integral part of  the Environmental
Priorities initiative  (EPZ).

     Once environmentally significant facilities have been
identified, high priority should be  placed  in PY 1989 and beyond
on addressing corrective action and  permitting or closure/post-
closure at the most significant facilities, regardless  of RCRA
and CERCLA authorities to address these  facilities.  Although
the 1989 incinerator deadline will continue to be an important
goal, some reallocation of resources from  incinerator permitting
to other environmentally-significant facilities and activities
may by justified on a case-specific  basis.  As part of  this effort
to increase our focus on the most environmentally-significant
facilities, the Office of Solid Haste is examining revision of
the SPMS system to better reflect the level of effort and
environmental benefits associated with the  various targetted
activities.

     This memorandum is intended to  help focus your initial
planning activities for FY 1989.  Additional guidance will be
provided in the FY 1989 RCRA Implementation Plan, the FY 1989
Agency Operating Year Guidance, and  through the EPI Task Force.
Also, to help support these planning efforts, OSWER will be
issuing guidance on the use of Section 3008(h) orders,  RCRA
National Priorities List listing policy, and post-closure
permits as tools for instituting corrective action.  Finally,
as part of the EPX, Superfund resources  will be used to conduct
approximately 1,000 new preliminary  assessments  (PAs) on the
highest priority sites and you will  have available for  priority
setting purposes information on RCRA sites  that are now in CERCLIS
and that have received PAs and SZs.  Guidance on this effort
also will b« provided.

     As tm plan for the challenges of FY 1989,  Z look forward  to
working with you to ensure the greatest  level of environmental
benefits are achieved.

ccx  Deputy Administrator
     Regional Division Directors
     Regional RCRA Branch Chiefs
     Regional Enforcement Branch Chiefs
     Regional Superfund Branch Chiefs

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                                                           9501.1987(03)
   \        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON, D.C  20460
                                                           _ E O '
   Of,°  28 	                                   SOLID WASTE AND EMEPGCN.C " n =




 MEMORANDUM
SUBJECT:  Impact of Proposed Rules on Permit Deadlines

                                           f,/
 FROM:      Marcia  E.  Williams,  Director  f/,/  C^^ — - —
           Office  of  Solid  Waste  (WH-563)

TO:        Allyn M. Davis,  Director
           Hazardous  Waste  Management  Division  (6H)
           Region  VI


     Your  memo of November 30  indicated  concern  that  the  timing
of  the  proposed location standards  and  incinerator  rules  may
jeopardize your ability to meet  the 1988  and  1989 permit  deadlines.
The  draft  location and  incinerator  standards  were developed
partly  in  response to public concerns about shortcomings  in  the
current  regulations.  I do not believe  that delay of  these  important
regulations until after the 1988 and  1989 statutory permitting
deadlines  would be an environmentally sound decision  in  light o;
their  importance.

     We  do recognize, however, that proposing new regulations  in
the  midst  of the  permitting process has  the potential to  delay
certain  permit activities  where  the public is concerned  about
EPA  and/or the State issuing a permit that does  not incorporate
the  new  requirements.  In  order  to  minimize any  disruption  of
the  permit process,  we  will continue  to share drafts  of  these
.rules  with the Regions  prior to  proposal.  Where you  conclude
that the draft rule  contains a requirement applicable to a  ,
permit  you are drafting and that such a requirement is needed
to  protect human  health or the environment, you  can use  the
omnibus  provision to add that  requirement to- the draft permit.

     When  we propose the new incinerator requirements in the Spring,
the  preamble will explain  that we have  provided  guidance documents
to  the  permit writers to help  them implement  the proposed conurols
immediately under the omnibus  authority codified at S270. 32(b) •'.').

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     While we currently do not plan to include a similar discussion
in the proposed location standards rule,  you may also use the
omnibus provision to apply a proposed location requirement to a
particular facility.  The Permit Assistance Teams are available
to assist you in resolving any permit specific issues that arise.

     In conclusion, I believe that if we work together we can
minimize any permit delays these new regulations may cause.
Should the regulations legitimately cause you to miss a SPMS
commitment, we will be able to renegotiate these on a case-by-
case basis.  I would expect, however, that we can jointly keep
delays to a minimum through regular communication on the
direction of the rules and on their impact on particular permits.

cc:  Regional Hazardous waste Division Directors
     Thad Juszczak
     Bruce Weddle
     Joe Carra

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                                                               9501.1990(01
                 RCRA/SUPERFUND HOTLINE  SUMMARY

                             JULY 1990

2.   Toxicity Characteristic Waste Part B Permit Application Deadlines

An existing, previously unregulated facility may become subject to RCRA
regulations (and begin to operate under interim status, 40 CFR Part 265
regulations) because it is handling a waste  newly regulated due to the
Toxicity Characteristic (TC).  According to the March  25, 1990 Federal
Register (55 Fg 11798), the facility must submit a Part A Permit application
six months from the date  of  publication  in the Federal Register (55 FR
11846) by September 25, 1990. When must the facility submit the Part B
portion of the  permit application?

    The date on which  the facility  must submit its  Part B permit
    application depends on the type of unit. If the permit is for a facility
    other than a "land disposal facility," then  the TSDF must submit its
    Part B application when EPA requests it, with a date established that
    provides the facility at least six months notice. (40 CFR 270.1 (b))  If the
    facility meets the definition of a land disposal facility, then the Part B
    must be submitted no later than 12 months after the date on which
    the facility first becomes subject to the permit requirement (40 CFR
    270.73(d)(l)), in this situation, by September 25, 1991.  The definition
    of land disposal facility is not codified in 40 CFR, but a  statutory
    interpretation  can  be found in  the September 25,  1985 Federal
    Register. (50 FR 38946) The Agency interprets the term to encompass
    the  following  facilities:  "landfills;  land  treatment units; surface
    impoundments for  disposal,  treatment, or storage; waste piles; and
    Class I hazardous waste underground injection wells". (50 FR 38947)

Source:        Wayne Roepe, OSW     (202) 475-7245
Research:      Cynthia Hess

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9502 - CORRECTIVE
ACTION
                 ATKl/l 104/53 kp

-------
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
                      WASHINGTON, O C. 204CO

                          APR I 8
                                              SOLID WASTI AND IMf MGINCv MS*

"EMORAMDL'M                  OSWER POLICY DIRECTIVE  #9502.00-2

SUBJECT:  RCRA,Correctiye Action at Federal Facilities
               <£ t^   -"^
FROM:     J. 77inston Porter
          Assistant Administrator

TO:       Peqional Administrators, Regions I - X


     On March  5, 1986, we oublished two notices in the Federal
Register (copies attached) about corrective action at Federal
facilities.  I am writinq to clarify some possible misconcep-
tions over the two March 5 notices.

     The first notice states:  (1) $3004(u) aoplies to Federal
facilities; (2) Federal aaencies are subject to the same
"orooerty-wide" definition of facility as other owner/ooera-
tors; and (3)  the tern "owner" aoplies to individual Federal
deoartnents, agencies, and instrumentalities rather than the
U.S. Government.  The second notice announces EPA's intent
to promulgate  rules to further clarify Federal ownershio and
to establish a scheme of priorities for corrective action  at
Federal facilities.

     Our office has heard conflicting statements on the effect
of EPA's intent to promulgate a rule on national priorities.
Some Federal agencies may incorrectly believe that corrective
action has been 'put on hold* until CPA issues a final
regulation.  This is not true.  Until EPA issues a final rule
on priorities  Cor corrective action at Federal facilities, the
Regions Must continue to process arid issue permits, including
negotiating corrective action schedules of compliance under
S3004(u).  Current permitting negotiations on corrective action
between EPA and Federal.agencies must not be affected by the
two Federal Register notices.  EPA shall continue  to  require
corrective action at Federal facilities and EPA shall
continue to require schedules of compliance in the permits of
Federal facilities.  Where appropriate, administrative orders
under S3008(h) should also be issued to direct Federal agencies
to conduct corrective action activities prior to issuance  of
the permit.

-------
      in  negotiating  schedules of compliance,  the Federal
 agencies may  legitimately  raise the  issue of  the relative
 priority of the  facility  in question.  Where  EPA, the State
 and  the  Federal  agency aaree that  the  facility  is of lesser
 importance, the  timeframes for conducting corrective action
 activities in the schedule of compliance should reflect this.
 Where  the three  parties are unaole to  agree on  the schedule
 for  conducting corrective  action activities,  these disputes
 should be referred to Bruce Weddle,  Director, Permits and..
 State  Programs Division, OSW, or Llovd Guerci,  Director,  *
 RCRA  enforcement Division, OWDf-:, to  resolve permitting or
 enforcement issues,  respectively.  We  are prepared to work
 with  the Federal agency Headauarters to obtain  resolution of
 these  problems.

      I have already  written to the major Federal agencies
 (Departments of  Energy, Defense and  the Interior) to explain
 our  intent to continue the permit  process and to negotiate
 schedules of compliance for corrective action.  I urged each
 of them  to begin considering their own priorities to facili-
 tate  the negotiation process, and  I  will meet with each
 agency to discuss its plans.

     while negotiation of  corrective action schedules of
 compliance may be handled  on a case-by-case basis until the
 final  rule is promulgated, there is  one area  discussed  in
 the  Federal Peqiater notice which  we cannot address without
 a regulation.  The notice  states that  in some situations
 where a private  party has  oartial  property interests such
 as leases or mineral extraction rinhts, it may  be aporopriate
 to define the facility boundary in terms of the private
 party's property interest  rather than  the Federal agency's
 property interest.   In these limited situations the private
 party would be responsible for talcing  corrective action
 rather than the  Federal government.  In all such cases
 prior  to issuance of the final rule, the Federal agency
 will be considered the owner of such property and will be
 held resoonsible for releases from such operations and  for
 releases on its  contiguous Federal lands.

     I hop* this will help to clarify  corrective action at
 Federal facilities.  Questions on  this subject  may be
 addressed to Paul Connor,  Federal  Facility Coordinator  in
OSW  (PTS 475-7066) for permitting  issues or to  Tony Baney,
 Federal facility Coordinator in OWPB"(FTS 382-4460) for
enforcement issues.

Attachments

cc:  Director, Hazardous Waste DivtfteW,
      Regions I-X
     Chief, Hazardous waste Branch,
      Regions I-X
     Allan Hirsch, OF*
     Regional Federal Facility Coordinators,
      Regions I-X

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                                                        9502.00-3
August 4, 1986
MEMORANDUM
SUBJECT:  Implementation of UIC Corrective Action Requirements

FROM:     Michael B. Cook, Director
          Office of Drinking Water

          Marcia Williams, Director
          Office of Solid Waste

TO:       Charles H. Sutfin, Director
          Water Division, Region V

          Basil G. Constantelos, Director
          Waste Management Division, Region V


     Several issues have recently been raised by Region V
regarding how RCRA corrective action requirements under §3004(u)
should be addressed when issuing permits to hazardous waste
injection wells under the Safe Drinking Water Act.  This
memorandum is intended to clarify several points of guidance
contained in Underground Injection Control Guidance #45, issued
on April 9, 1986.

     As outlined in the above guidance, a UIC permit may be
issued to a hazardous waste injection well at a RCRA interim
status facility, without addressing the requirements of RCRA
§3004(u).  In such case, the well retains RCRA interim status
until such time as the entire facility is addressed for the
purposes of corrective action.  When the §3004(u) requirements
have been addressed for the entire facility, the well obtains a
RCRA permit by rule.  The §3004(u) requirement cannot be
implemented selectively at the well only.

     For a UIC permit which is issued at an interim status
facility for which the §3004(u) requirement is not addressed, a
corrective action program for the injection well  (as outlined in
Section VIII of Guidance #45)  should be followed.  Such
        This has been retyped from the original document.

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                               -2-

corrective action programs will be implemented under SDWA
authorities, and need not invoke RCRA §3004(u).

     To the extent that existing SPMS accounting measures specify
that UIC permits for hazardous waste injection wells must also be
RCRA permits by rule, we will work to adjust those measures to
reflect the guidance in this memorandum.

     We appreciate the complexity of these issues, and the
difficulties inherent in effectively coordinating and
implementing these new requirements.  If you have any questions
or further problems, please contact Ellen Berick in the Office of
Drinking Water (382-5547), or Dave Fagan in the Office of Solid
Waste (382-4740).


cc:  Hazardous Waste Division Directors, Regions I-X
     RCRA Branch Chiefs, Regions I-X
     Water Division Directors, Regions I-X
     Drinking Water Branch Chiefs, Regions I-X
     B.  Weddle
     P.  Baltay
        This has been retyped from the original document.

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           UNITED STATES ENVIRONMENTAL PROTECTION AGEOgflt?* POLO DIRECTIVE NO.
                       WASHINGTON, D.C. 20460
                                                 9502.00*4  «



                           AJS 2 I  1986                		
                                                        OFFICE OP
                                               SOLID WASTE ANO EMERGENCY AES'Oi
 MEMORANDUM


 SUBJECT:  ImplementatioAofL RCRA Facility Assessments

 FROM:     J. Wrfra£3h Porter! Assistant AdntLnistrator
          Office  of Solid Waste and  Emergency  Response

 TO:       Hazardous Waste Division Directors,  Regions I-X


     The purpose  of this memorandum  is to clarify existing
 policy and to provide further  guidance on implementation of
 RCRA Facility Assessments (RFAa) in  the RCRA permit and the
 RCRA enforcement  programs in the Regions.

     As outlined  in previous guidances, as well as in- the
 FY 86 and FY 87 RIPs, the RCRA Facility Assessment (formerly
 referred to as PA/SI) is designed to be the first step in
 the process of implementing the RCRA corrective action process.
 The general function of the RFA is to provide  the basis for
 the Agency to make preliminary determinations as to whether
 or not there are, or are likely to be, releases of concern
 at a facility.  The RFA also assists in determining whether
 or not, and what  types of, further investigations or interim
 measures should be required of the owner /opera tor.

     It is in the Agency's interest,  and the public's interest,
 to have made an overall assessment of actual and potential
environmental problems fron all sources at a facility,  and to
have determined, before issuing a permit, what investigations
must be initiated at the facility to characterize the nature
and extent of the contamination.  Each of the Regions has
begun to initiate some number of RFAs.  It is  our understanding,
however* that the RFAs being conducted by the Regions and
States vary significantly in terms of their technical approach
and completeness.  In particular, sampling and analysis,
which will often be necessary in making determination* in an
RFA, is in some cases not being done before the permit is
issued.  In other cases, RFAa have not been conducted at all
prior to issuing permits.

     An RFA should be completed before issuance of a RCRA
permit.  A "complete" RFA will typically include a site visit
as well as any sampling and analysis required  to make the
necessary determinations in the RFA.  It should be understood

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                                                       ruuv.i
                             -2-
                                                 950 2 . 00-4
 that,  for the purposes of SPMS tracking, only complete RFAs
 will  be  counted  as  accomplishmenta.

      If  properly planned and executed, an RFA can be completed
 within a relatively short time frame  (three months or less).
 Since RFAs can be conducted concurrently with other permit review
 activities, we believe that doing RFAs prior to permitting should
 have  little impact  on permit issuance schedules.  There may be
 some  facilities, however, which are scheduled to receive draft
 permits  in the next  several months (i.e., this calendar year),
 but for  which an RFA has not been initiated.  If completing an
 RFA for  such facilities is likely to substantially delay issuance
 of the final permit, Regions may consider having the necessary
 sampling and analysis portion of the RFA done after permit
 issuance, under a schedule of compliance.  In such cases,  however,
 the Preliminary Review and Visual Site Inspection portions of the
 RFA should be completed before the permit is issued.

      It  may also be  appropriate to conduct an RFA before talcing
 action under RCRA Section 3008(h), the Interim Status Corrective
 Action Authority.   Information from the RFA can provide evidence
 necessary to meet §3008(h) criteria where it is not otherwise
 available, and can  provide information necessary to properly
 scope  an order.  We  recognize,  however,  that it may not be
 possible to conduct  an RFA prior to issuing an order in cases
 where  there is a need to initiate such an action quickly or
 when a facility is not a current RFA priority.  RFA priorities
 for FY 1987 are all  operating land disposal facilities scheduled
 for permit issuance  by November 1988, and 30 percent of the
 closing  land disposal facilities.

     Previous guidance has expressed a preference for requiring
 owner /opera tors to  perform sampling and analysis which may be
 required to complete an RFA.   It should be understood that while
 owner/operator support, if it can be secured on a timely basis,
 is encouraged, owner/operator support should not be sought if it
 cannot be expected to be timely or reliable.  Regions have been
provided substantial extramural funds to perform RFAs.  These
 funds  should be used as necessary to assure timely completion
of comprehensive RFAs.

     We recognize that completing RFAs prxor to issuance of
 permits My have some implications in terms of timing and
 resources) for certain facilities.   We ask that Regions communicate
 any concerns regarding this policy to Dave Fagan (OSW) at FTS
 382-4692.

 ccs Regional Hazardous Waste Branch Chiefs
    Regional RCRA Permit Section Chiefs
    Regional RCRA Enforcement Section Chiefs
    M. Williams
    G. Lucero
    B. Weddle
    L. Guerci

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 .•10 •
o" —
                                                          9502.OC-6
               UNITED STATES ENVIRONMENTAL PROT..

                           WASHINGTON. DC. 20460
                                                           C = » CE OF
                                                  S C L ' Q A AS T ; i \ 3 E V £ 0 - c •
    SUBJECT: "Definition  of  Solid Waste 'lanageTient  Unit  £cr  the
             Purpose of  Corrective  Action  Under  Section  3004(j)

    F^O"!:    ?'.arcia ~. V.'illians, Director
             Office of Solid tfaste

    TO:      Hazardous "aste Division Directors, Regions  I-X


         The purpose of  this memorandum  is  to  provide clarification
    regarding one aspect of the definition  of  solid waste management
    unit as related to RCRA corrective action  under Section 3004(u).
    The  concept of a solid waste management  unit has been explained
    in various guidances since the  passage  of  the  1984 Hazardous
    and  Solid1 ''Jaste Amendents  (HS'.vA).

         As explained in the July 15, 1935  HStfA  Codification Rule,
    a solid waste management unit is "...  any  unit at a  facility
    from which hazardous constituents might  migrate, irrespective of
    whether the units were  intended  for  the  management of solid and/
    or hazardous wastes."  This definition  was intended  to  include
    those types of units which have  traditionally  been subject to
    regulatory control under RCRA:  container storage arsas, tanks,
    surface impoundments, waste piles, land treatment units, landfills,
    incinerators, underground  injection  wells  and  other  physical,
    chemical and biological treatment units.

         A memorandum from John Skinner  to  the Hazardous Waste
    Division Directors (June 14, 1985) further interpreted  the ter:?.
    solid waste management unit to  include  areas at facilities whicn
    have become contaminated by routine, systematic and  deliberate
    releases of hazardous waste or  hazardous constituents.  An
    example of this type of "solid  waste management unit" is a wood
    preservative "kickback" area, where  drippage of preservative
    fluids onto soils from pressure-treated wood is allowed to occur
    over time.  This interpretation  was  reiterated in the final
    RCRA Facility Assessment Guidance and  the  National  RCRA
    Corrective Action Strategy of October  14,  1986.

-------
     Recently, however, several Regions have  inquirso wnec.isr f.e
term "deliberate" meant that the owner/operator had actually
intended to create the release of hazardous wastes or hazardous
constituents.  We wish to clarify that the term "deliberate" in
this context was not meant to require a showing that the owner/
operator knowingly caused a release o£ hazardous wastes or hazard-
ous constituents.  Rather, the term "deliberate" was included to
indicate the Agency's intention not to exercise its Section 3004('
authority to proceed against one-time, accidental spills whicn
cannot be linked to a discernible solid waste management unit.
An example of this type of release would be antaccidental spill
from a truck at a RCRA facility.  Routine and systematic releases
constitute, in effect, management of wastes; the araa at whicn
this activity has taken place can thus reasonably be considered
a solid waste management unit.  Therefore, in implementing correc-
tive action under Section 3004(u), Regions and States should
consider areas which have become contaminated through routine
and systematic releases of hazardous wastes or hazardous constit-
uents to be solid waste management units.  It is not necessary
to establish that such releases were deliberate in nature.

     This concept, and other issues relating to the definition of
solid waste managerent unit, will be addressed in the proposed
ruletraking being developed for corrective action under Section
3004(u).

     If you have any questions regarding this interpretation of
of solid waste management unit, please contact David Fagan at
FT5 382-4497.

cc:  Regional RCRA Branch Chiefs
     Regional RCRA Permit Section Chiefs
     Gene Lucero
     Bruce Neddie
     Joe Carra
     Mark Greenwood

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                                         OSWER Do.recuj.vt .-»o.  3502.00-7

 *^*° ""«»>.
- A  '
J JK* \        UNITED STATES ENVIRONMENTAL PRO              9 5 0 2 . C C -1
  	7                   WASHINGTON, O.C. 20440



                                ^R   3 fTO

                                                    SOLID AAS*E 4NO SM68Gc\Cv J£;3

   MEMORANDUM

   SUBJECT:  Use of  53008(h)  Orders or  Post-Closure Permits  At
            /Closing ,/acidities4

            ^  l^. HI/-&A+'/*
   FROM:     j. i^ns^ron Fortef/,'kssistant Administrator

            7                 /
   TO:      /Regional Administrators, Regions  I  -  X


   SUMMARY

         The purpose of this  memorandum is to  clarify the  use  of
   53008(h) orders and post-closure permits  to address  corrective
   action at closing interim  status  facilities.  The first part of
   this memo briefly reviews  the  authorities and their
   applicability.  The second part of this memo  presents
   considerations that may be used in making your  decision on
   whether to use a  S3008(h)  order or a post-closure permit  with
   S3004(u) and S3004(v)  conditions.

   I.  BACKGROUND

         Many closing RCRA facilities require  corrective  action  to
   mitigate potential threats to  human  health  and  the
   environment.  Corrective action at environmentally significant
   closing facilities should  be completed as expeditiously as
   possible.*  Two principal  authorities can be  used to compel
   corrective action at these facilities: 53008(h) orders and
   post-closure permits.** Questions have arisen  regarding  which
   authority to use.  In  particular,  advice  has  been sought  on
   when to use a post-closure permit  instead of  53008(h)  order to
   compel corrective action at  interim  status  facilities or
   facilities that have lost  interim  status.
         *The Environmental  Priorities Initiative (EPI)  provides a
   priority-setting mechanism for identifying and evaluating
   environmentally significant facilities.

         **Two other  RCRA corrective action authorities, 53013 and
   57003, may also be available.   Additionally, Superfund
   authorities may also  be applicable.  Furthermore, these
   authorities may be used in combination.

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                               -2-

A.  Section 3QQ8(h)

     Sectioir-3008(h) authorizes EPA to issue corrective action
administrative orders and to initiate civil actions for
facilities currently under interim status, facilities that once
nad interim status, or facilities that should have had interim
status.  A §3008(h) order may be issued whether the facility is
operating  (prior to receiving a permit), is closing, or is
closed.

     Section 3008(h) orders may address releases or potential
releases to all media.  EPA may use these orders to require
study or cleanup actions where the Agency has made the
determination that there is or has been a release of hazardous
waste or hazardous constituents into the environment from a
facility.  (Guidance on the interpretation of §3008(h) is
provided in a December '.6, 1985 memorandum from J. Winston
Porter.)

B.  Section 3004(u)

     Section 3004(u) requires every treatment, storage or
disposal facility that is seeking a RCRA permit after November
8, 1984 to undertake corrective action for releases of
hazardous waste or hazardous constituents from solid waste
management units (SWMUs), regardless of when the waste was
placed in the unit involved.  Section 3004(u) allows the use of
schedules of compliance in the permit to accomplish corrective
action.

C.  Post-Closure Permits

     Post-closure permits are required for any landfill, waste
pile,  surface impoundment, or land treatment unit which
received waste after July 26, 1982, or which ceased the receipt
of wastes prior to July 26, 1982 but did not certify closure
until after January 26, 1983.  However, a post-closure permit
is not required if the unit closes by removal under standards
equivalent to S264 standards.*  Post-closure permits are also
not required for treatment and storage units, although under
the new tank regulations (51 FR 25422), post-closure permits
may be required.  For treatment and storage units, we
*Interim status units that closed by removal after January 26,
1983 under Part 265 standards are subject to post-closure
responsibilities unless such units demonstrate that the
facility meets the closure by removal standards of Part 264.
(See December 1, 1987, 52 FR 45788 amending 40 C.F.R.
§270.1(C)).

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                               -3-

recorrunend that a RCRA Facility Assessment (RFA)  be completed
and a_$3008fti) order be issued, if necessary, before the
operating permit is denied.

     Under current regulations post-closure permits are
required even where a facility has closed under interim status
and a §3008(h) order has been issued to address corrective
action.   The terms of any §3008(h) order may, of course, be
made part of the post-closure permit, as appropriate.

II.   Consideration-s in Selecting S3Q08(h) Orders or
     Post-Closure Permits

     As discussed above, there are situations in which only one
authority is applicable.  For example, for units not subject
to post-closure care (e.g., interim status treatment and
storage facilities or facilities with surface impoundments that
have clean closed according to Part 264 standards), S3008(h)
orders are the appropriate corrective action authority.  In
many cases, however, either authority may be used; e.g.,
interim status land disposal facilities subject to the
post-closure care requirements.

     Since $3008(h) and §3004(u) provide overlapping authority
in terms of the scope and type of cleanup actions which may be
required of interim status facility owner/operators, when a
choice is available we leave the decision to the Regions to
determine whether to use a-3008(h) order or S3004(u) conditions
in an operating or post-closure permit.  The following
considerations are offered to assist you in deciding, on a
case-by-case basis, how to proceed.

     o  A post-closure permit may be an easier approach than a
S3008(h) order in the case of a willing owner/operator. A
S3008(h) order/judicial action may be the preferable first  step
where the owner/operator  is uncooperative, or where there  is
disagreement with the Agency or uncertainty over the scope  of
activities to be conducted.  (Some regions have found that  the
owner/operator may prefer a post-closure permit instead of  a
§3008(h) order because of the perceived stigma attached to  an
enforcement order.)

     o  In situations which will  require long-term  oversight,
it may b« more appropriate to( determine at the outset  to  use  a
post-closure permit instead o'f issuing a S3008(h) order.
Permits are designed to address long-term activities.
Enforcement authorities,  which may involve judicial action and
approvals, are less well-suited for  activities requiring
long-term oversight.   (Of  course, as noted above  the
cooperativeness of the owner/operator will influence this
decision).

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                               -4-

     o  A S3008(h) order may be more appropriate where a prompt
action is necessary and where a post-closure permit is not soon
scheduled t^> be issued.*  This is because S3008(h) orders allow
more flexibility in both timing and scope than permits.   For
example, a $3008(h) order could focus only on the specific
cleanup requiring immediate attention without having to address
post-closure care or corrective action elsewhere on the
facility.  Conversely, a post-closure permit must address, to
the extent necessary, releases from all SWMUs as well as
post-closure care activities.

     o  A §3008(h)" order may be more appropriate than a
post-closure permit where there is concern that releases are
coming from sources other than SWMUs.  The language of section.
3008(h) refers to releases from facilities.  This may be
broader language than that in section 3004(u) which refers to
releases from SWMUs.

     CONCLUSION

        These considerations should be evaluated and weighed in
any decision on which corrective action authority should be
used. The Agency's objective for closing facilities is to
minimize the post-closure release of hazardous wastes and
hazardous constituents into the environment and to address
corrective action for existing or potential releases at the
time of closure.  The post-closure permit provides a
coordinated one-step mechanism for addressing corrective action
at the entire facility together with post-closure care for
regulated units.  In the long-run,"therefore, we anticipate
that post-closure permits should serve as the routine mechanism
for the majority of corrective actions at closing land disposal
facilties.  Under current regulations, use of $3008(h) will not
obviate the need to issue a post-closure permit, unless closure
by removal takes place and satisfies Part 264 standards as
required under the new rules promulgated at 52 FR 45788.
Hence, complementary use of both a S3008(h) order and a
post-closure permit (with or without additional S3004(u)
conditions added) remains an important option.
     *lf an imminent and substantial  endangerment  to  health  or
the environment exists, a  S7003  order may  be  appropriate.

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                                                    9502.1984(01)
December 7, 1984

MEMORANDUM
SUBJECT:  Region VIII Policy
          Oily Wastewater Treatment Ponds

FROM:     John H. Skinner, Director
          Office of Solid Waste  (WH-562)

TO:       Robert L. Duprey, Director
          Region 8
          Air and Waste Management Division (8AW-WM)


     We have reviewed the proposed Region VIII position discussed
in your memos dated May 1 and October 12, 1984 that define
permitting coverage of refinery wastewater treatment ponds.  As
your staff may have informed you, there have been several
meetings between my staff and yours to discuss this problem.  We
have also met with Chevron, Phillips, Tosco and API and,
separately, with Region IX to discuss the issue.  We share your
concern about the threat posed to ground and surface waters by
some of the unlined wastewater ponds that treat or store oily
wastewaters.  However, we believe that the similarity of
downstream unit sludges (in terms of lead and chromium levels) to
those found in the API Separator are not a sufficient basis for
defining the material in the downstream units as API Separator
Sludge.  In fact, the similarity of these sludges was a
significant factor in our decision to move forward on an expanded
listing to regulate these pond sludges.

     Specifically, we are planning in a forthcoming listing to
regulate oil/water/solids separation sludges generated in the
wastewater treatment system prior to biological treatment.  This
listing was originally proposed in November of 1980.  We expect
to issue a notice identifying all of the available data in
support of the listing and to provide some clarifications in
response to previous comments.  Current plans are to promulgate
that listing by late summer.

     While the listing revision should cover most sludges
generated in these ponds,  we realize that does not address your
        This has been retyped from the original document.

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                                -2-

 short term problem.  We do have some suggestions in this regard.
 Section  206  of  the Hazardous and Solid Waste Amendments of  1984
 provides that persons obtaining RCRA permits must undertake
 corrective action for all releases of hazardous constituents  from
 any solid waste management unit as a condition of obtaining the
 RCRA permit.  Thus,  if a refinery pond is releasing hazardous
 constituents and the refinery seeks a RCRA permit for any unit at
 the facility, the refinery would have to undertake corrective
 action for the  releases from the pond.   (This could be done
 either through  the permit, or pursuant to an interim status
 compliance order.)   This principle applies even if the pond is
 not considered  to hold a hazardous waste, since Section 206
 applies  to releases  of hazardous constituents from solid waste
 management units.

     A second option for addressing these pond sludges is to
 regulate the wastes  as hazardous based on their exhibiting one or
 more of  the  characteristics of  hazardous waste (see 40 CFR
 §261.21-24).  You mentioned this option in your recent letter
 with respect to EP Toxicity.  However, your staff seems to have
 overlooked corrosivity (high pH has been found in some COD ponds)
 and reactivity  (§261.23(a)(5)).  It is likely that some refinery
 pond sludges will contain excessive levels of reactive sulfides.

     The final  option that could be used to deal with downstream
 impoundments and basins is applicability of the mixture rule.  It
 is imperative,  however, that your staff understand the proper
 framework for the application of the mixture rule.  To maintain
 that a pond  is  regulated because an API Separator is an
 inherently inefficient unit and allows sludge to be carried
 through  to a pond, is inaccurate.  Likewise, downstream oxidation
 ponds are not regulated simply  because they sometimes receive
 flow that has bypassed the API  Separator.  In both cases, the
 listed API Separator Sludge has  not yet been generated.  Rather,
 API Separator Sludge is generated when it is deposited in the
 bottom of an API Separator.   The mixture rule is relevant only in
 those cases where previously deposited sludge is scoured,
 resuspended, and then carried out of the unit with the
 wastewater.  If the  Region can  make a case for scouring from a
 separator, the mixture rule is  applicable and the wastewater
 becomes  a hazardous  waste until  delisted or discharged to a
 stream subject to regulation under the Clean Water Act.

     The burden of proof in the  demonstration of scouring is upon
 the Agency.  Such an argument,  although technically complex, can
 be made  based on well established hydrodynamic principles.
Realizing that there are limited resources and capability for
developing such an argument by  the Regions, we have (at the
        This has been retyped from the original document.

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                               -3-

request of your staff) taken an active role in the development of
guidance for the application of this argument.  Attached to this
memo is a preliminary list of factors that may be required to
establish the occurrence of scouring from a given separator.
These points are being provided at this time to facilitate the
initiation of information gathering in the more serious cases.

     We have also requested that the Office of Waste Programs
Enforcement  (OWPE) develop more thorough guidance.  That effort
is being conducted by their contractor (Metcalf & Eddy).   We
anticipate that your staff will be contacted by them in the near
future.  The contractor should be able to provide some direct
assistance to your staff in some specific cases, thereby serving
the dual purpose of training and resolution of specific factors
of concern.  Mike Barclay (FTS:  475-8727) of OWPE is the
Headquarters lead on that project and should be contacted for any
further information.  Ben Smith of my staff (FTS:  475-8551) is
our technical expert in this matter and the lead on our study of
petroleum refineries and their wastes.  Do not hesitate to
contact him if additional questions arise pertaining to this or
other matters.

cc:  RA's Region I-X
     Mike Barclay (OWPE)
     Steve Siverman (OGC)
     Susan Manganello (ORC,  Region VIII)

Attachment
        This has been retyped from the original document.

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Factors To B« Evaluated In Dotarwinlng The'potentla1 For

               Separator SlurtQ*  Scouring          -"••*C\^-.-;
                                                  * •
 Sludge Accumulation Practices  -  Continuous sludge r••ova 1^-1
 from tho separator rules out the occurrence of scouring.   **
 At the other end of the spectrum are facilities that allow"
 sludge to accumulate to considerable depth.  Accumulation ••
 to a depth greater than 5O% of the flow depth makes scouring
 probable.  Intermediate ranges of accumulation will preb- .*
 ably depend more heavily on other factors.        .-.•• v'v,--'
•^*rT  .--» .•«. -— v »*•"» •* •<•>'•*• v - ' "   '"•       ••  , •  -  .•^•••*—.. • •*.''^ik-i^'T*>-.«C^.—
 flow variability - Unless overloadud,  units with'mixlima-r-
•to-«iniinu», flow ratios at the separator effluent of less  ^
 than 2 and inlet flow ratios of  less than 4 are probably  *\
 not experiencing'much rosuspension of sludge.       .      .'.*
       •• '  '-•"• •*;•.•                  •       .•-•••.•'-".,
 Poor Separator Design or Operation - Factors contributing  «
 to scour conditions includet   excessive, inlet or outlet  /.;
 tone turbulence} nominal horisontal velocities greater  • •.';'
^th«n 30 f»«t p«r •inut*> novlnal overflow rat«s  (Clow/
 surface area) greater!than 10,000 gallons per day/square V^':
 foot of basin; basins less than  30 feet in lengthr.opera-
 tion 'under pressure (e.g., with  a backwater at the' inlet
 of a separator with a-frosen surface), settling  xone  -
 turbulence (sometimes seen as  bubbling with solids
 entrainment). *>$*- •. ;.—•u ~V"-.;V-.V^-;*^ "  •     ';..••
'  .  •     •'•'...-".".   -'•'  '.-.- . .•-^-.;••.  ."
 Separator Effluent Characteristics -. Excessive weir loadingn
 (e.g., operation with a-suppressed weir. Clow depth greater
 than a foot) facilitate carryover of resuspended particles.'
 Visible, large (diameter greater than 1/4 inch)  sludge  v .'.
 particles in the separator effluent are strong evidence  .'<
 of scouring associated with microbial degradation of  ,xl ,""~
 deposited jsludge.*v- .•*/.".;>\ >'••  •" /r''vr'.;.-«'5-.«-«r-.^;~--_F.'i ••'."• -*V;;•'•-.'>£
'•« ,--.''-.'%? -.' " t ^ 'k it ."f^-*. •   .    '    -..*'• ^- _i  'i.-  ...  -  •'-..
 Sludge Characteristics - Particle slie distribution as  V..-*
 measured by wot sieve.and hydrometer analyses  is necessary
 information to define scour  conditions. 'The presence of •i.'
 coke fines in the wastewater influent is also  important >V:
 because that size of particle  «.lmm) is non-cohesive   .. ;
 and highly susceptible  to  rosuspension;

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                                                                 9502.1985(01)
       i         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
< >i\l/^- *                    WASHINGTON, DC 20480
v— .•?
                               FEa  6 :*
                                                   SOL.O WASTE AND Evte«GENC»
    MEMORANDUM
     SUBJECT:   RCRA  Reauthor izat ion  Statutory  Interpretation  13:
               Immediate  Implementation  of  New Corrective Action
               Requirements.
               .x  /
     FROM:     J%CK W./McGraw
              ^ Acting Assistant Administrator

     TO:       Addressees


     BACKGROUND

         One  of  the most  important  early-enactment  provisions  of  the
     RCRA reauthorization  is the  new authority  for corrective action
     for continuing releases  [Section 3004(u)].  As you  know,  this  pro-
     vision  is applicaDle  to all  permits  issued  after November  8,  1984.
     This memorandum provides  preliminary guidance on the  new  information
     to be submitted with  Part B  applications  to satisfy the  new require-
     ments.  The  guidance  applies to those facilities whose Part B
     applications have  been  requested,  and for  which final determinations
     were not  made prior  to  November 8,  1984.

         The  new continuing release provision  in effect requires  that
     each facility seeking a RCRA permit  must  (a) identify all  solid
     waste management units  at the facility;  (b) identify  releases
     of hazardous wastes  or  constituents  that  have occurred  from those
     units;  and  (c) perform  corrective  action  for those releases.   Vir-
     tually  all  regulated  facilities will be  affected by  this provision,
     since it  applies to  inactive and closed  units at such facilities,
     as well as  to the  operating  units  subject  to permitting.

         Much of the implementation of  the continuing  release  provision
     is subject  to interpretations which  have  not yet been made by the
     Agency.   An  effort is currently underway  to clarify  the  full  impact
     of this provision  on  the  RCRA permit program.

         Policy  guidance  on implementation of  the  new  $3004(u) authority,
     including the requirement for financial  assurance  for corrective
     action, is  expected  to  be issued in  draft  within a month.   Separate
     guidance  is  being  developed  on how to determine whether or not a
     facility  has a release  that  may pose a threat to human  health and  the
     environment. Additional  guidance on the technical aspects of
     different types of corrective action programs,  and on the use of
     interim status corrective action orders,  will also be issued.

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ACTION

     Several actions can be taken to implement this new  cor-
rective action requirement prior to issuance of the above mentioned
guidance packages.  Specifically, we recommend that a notice  be
sent to each facility whose Part B has been requested and for
which a final determination was not made prior to November 8, 1984.
This notice should provide a general explanation of the  new cor-
rective action provision, and the fact that additional information
must be submitted to satisfy the new requirement.  In general,
EPA will need to obtain the following information in order to
determine whether a facility is in compliance with section 3004(u):

     (a) Identification of each unit at the facility that might
         fall within the definition of solid waste management unit,
         that has not already been described in the Part B appli-
         cation.  Although no final decision has yet been made  on
         the definition, a solid waste management unit may include
         any landfill, surface  impoundment, waste pile,  land  treatment
         unit, injection well,  incinerator, tank (including waste-
         water treatment units, elementary neutralization units,
         and tanks used in reuse/recovery operations), container
         storage area, transfer station, or waste recycling oper-
         ation at the facility.  The applicant should also under-
         stand that EPA views the "facility" as not limited to the
         area where wastes are managed, but includes the entire
         contiguous property under the control of the owner or
         operator.  For each unit, the following information should
         be supplied:

              - Type of unit
              - Location of each unit at the facility on a
                topographic map
              - General dimensions
              - Whether the unit is currently operating, and if
                not, when the unit closed or ceased operating
              - Description of  the wastes  that were placed in
                the unit  (where  available)

     (b) All information available to the  owner/operator on
         whether or not releases have occurred  from any  of the
         solid waste management  units  (including the  hazardous
         waste units) at the facility.  Releases to ground water,
         as well as to other media  (e.g.,  soils, surface water,
         air) should be described.  Such information  would
         include available ground or  surface water monitoring
         data, results of soil  sampling, spill  reports,  inspection
         records, etc.

     We recommend that  in most  cases, applicants who have  already
submitted  their Part B application should  be  given no more than
30-45 days  in which to submit  this  information.
                                -2-

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     It should be understood that there is currently no provision
 in 40 CFR Part 270 which requires submission of the above infor-
 mation in Part "B applications.  In a sense, therefore, submittal of
 the  information by permit applicants is "voluntary."  However,
 section 3005(c) of the Act provides that permits can be issued
 to facilities only upon a determination that the facility is  in
 compliance with the requirements of Section 3004 of the Act.
 Therefore, failure to submit information to demonstrate a facility's
 compliance with the $3004(u) requirement would be grounds for denial
 of the permit.

     The above information, when submitted by the permit applicants,
 will allow the permit writer to make an assessment as to which
 facilities are likely to require corrective action programs, and
 how  permitting and enforcement priorities might subsequently be
 realigned.

      Some States may have existing regulatory requirements analogous
 to the new RCRA continuing release provision.  Such States may
 already have gathered substantial information on solid waste man-
 agement units and releases at their facilities.  In preparing the
 notices to be sent to permit applicants, Regional Offices should
 coordinate with their States to avoid requesting such information
 that has already been collected by a State agency.

     Some facilities may contain only units with a relatively
 low  likelihood of having caused a release (e.g., indoor container
 storage areas, above-ground tanks, etc.).  In such cases, the
 Region/State may consider going forward with issuing the permit,
 providing that:

     - The owner/operator has indicated that there is no
       information indicating a release from any of the units;
       and

     - An assessment of the facility, based on a site in-
       spection and other available information, confirms that
       a release that poses a threat to human health and the
       environment is unlikely to have occurred.

     For many facilities, the absence of a release will not be
 so easily established.  Further, some facilities will already have
determined that such a release(s) has occurred.  For these  facil-
 ities further information will have to be developed to  identify
and/or characterize releases.  As noted earlier, guidance on  these
 issues will be forthcoming.

     Any questions or comments on procedural aspects of  imple-
menting this corrective action authority should be directed to
 Dave Fagan (382-4497).  For information on the guidance packages
 being developed, please contact Art Day (382-4658), or  George
Dixon (382-4494).
                              -3-

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Addressees:

Regional Administrators,  Regions I-X
Regional Waste Management Division Directors,  Regions  I-X
Hazardous Waste Branch Chiefs,  Regions I-X
Regional Counsels, Regions I-X
State Hazardous Waste Program Directors
Assistant Administrator for Enforcement and Compliance Monitoring
Associate General Counsel for Solid Waste and Emergency Response
OSWER Office Directors
                               -4-

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                                                    9502.1985(02)
June 17, 1985
Regulation of Wood Treatment Plant Drip Areas as Solid Waste
Management Units

John Skinner, Director
Office of Solid Waste

James C. Scarbrough, Chief
Residuals Management Branch, Region IV
     In your April 23, 1985, memo, you asked whether the ground
areas at a wood treatment plant that receive drippage from the
treated wood are solid waste management units and, therefore,
subject to the continuing release provisions of HSWA.  We agree
with you that these areas are solid waste management units,
subject to the continuing release and interim status corrective
action order requirements of the 1984 RCRA amendments.

     As we understand the process, when the pressure treated wood
is removed from the treating cylinder, excess preservative is
forced out of the wood by the internal pressure still remaining
in the wood.  This is commonly referred to as kick-back drippage.
The length of time over which drippage occurs varies from about
four to twenty-four hours, depending on the type of wood treated,
the series of pressure or vacuum treating cycles employed, and
the preservative solutions used.  Often, a final vacuum is drawn
on the preserved wood which then delays the onset of this
drippage by an hour or so after it is taken out of the pressure
treating cylinder.

     Although some of these residuals have been found to contain
significant concentrations of carcinogenic substances (such as
chrysene and benzo(a)pyrene),  they are not currently classified
as hazardous wastes under RCRA, either as discarded commercial
chemical products under Section 261.33 or otherwise as listed or
characteristic wastes.  The Agency is now obtaining data to
determine whether these residuals should be listed along with
other wastes from the wood preserving industry.

     These residuals, however, are definitely solid wastes.
Therefore, any specific ground area that routinely receives this
        This has been retyped from the original document.

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                               -2-

kick-back drippage would be considered a "solid waste management
unit" since it is a discrete area of the facility where wastes
have been or are deliberately, routinely, and systematically
placed or allowed to leak onto the land.  The unit is thus
subject to the corrective action requirements of 3004(u),
providing that the facility is seeking a RCRA permit.

     If the facility has interim status but is not seeking a
permit, enforcement authorities under Section 3008(h) and others
can be used to require necessary corrective measures.

     I trust that this response is helpful to you in preparing
your case in the compliance order proceeding regarding a wood
treater's Part B permit application.
        This has been retyped from the original document.

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                                                    9502.1985(02)
                                                       Attachment
June  14,  1985
MEMORANDUM

SUBJECT:  Regulatory status of wood preservative "Kickback"
          emissions

FROM:     John H. Skinner, Ph.D.
          Director
          Office of Solid Waste  (WH 565)

TO:       Elizabeth Maxwell
          Assistant Regional Counsel
          Region V


     In a March 29, 1985 memo, you requested clarification of the
regulatory status of the ground area around tracks or other areas
outside of the immediate treating cylinder area where drippage
collects from newly treated woodJ/   This area  (referred to as
the "kick-back drippage area") is a solid waste management unit,
subject to the corrective action requirements of the 1984 RCRA
amendments.

     As we understand the process, when the pressure treated wood
charge is removed from the treating cylinder, excess preservative
is forced out of the wood by the internal pressure still
remaining in the wood.  This is commonly referred to as kick-back
drippage.  Typically, a charge of newly treated wood is allowed
to rest in a specific area while still loaded on the railroad
platform car for some time during this pressure equalization
process.  In some cases, this drippage may be partially collected
in troughs or sumps beneath the tracks.  The length of time over
which drippage occurs varies from about four to twenty-four
hours, depending on the type of wood treated, the series of
pressure or vacuum treating cycles employed, and the preservative
I/   While the Agency has  determined  the  status of this area, we
     are currently evaluating other parts of wood preserving plants
     to determine if these  areas also should be classified as land-
     based units.
        This has been retyped from the original document.

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                               -2-

solutions used.  Often, a final vacuum is drawn on the preserved
wood which then delays the onset of this drippage by an hour or
so after it is taken out of the pressure treating cylinder.

     At Southern Wood Piedmont's Waverly, Ohio facility, some of
this residual is collected in troughs beside the railroad track
and periodically dredged out manually.  Substantial amounts,
however, also drip onto the ground.  The facility has supplied
analytical data demonstrating significant concentrations of
carcinogenic substances in these deposits (e.g..  chrysene at 2500
ppm and benzo(a)pyrene at 730 ppm).

     Although these residuals are not currently classified as
hazardous wastes under RCRA, either as discarded commercial
chemical products under Section 261.33 or otherwise as listed or
characteristic wastes, the Agency is now obtaining data to
determine whether these residuals should be listed along with
other wastes from the wood preserving industry.

     These residuals, however, are solid wastes.   The specific
ground area which routinely receives this kick-back drippage
would be considered a "solid waste management unit," since it is
a discrete area of the facility where wastes have been or are
deliberately, routinely, and systematically placed or are allowed
to leak onto the land.  The unit is thus subject to the
corrective action requirements of 3004(u),  providing that the
facility is seeking a RCRA permit.  If the facility has interim
status but is not seeking a permit, enforcement authorities under
Section 3008(h) and others can be used to require necessary
corrective resources.
cc:  Regional Administrators
     Regional Branch Chiefs
        This has been retyped from the original document.

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                                                                           9502.1985(04)
                  RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                      JUNE 85
Oorraeti*! Action

1, A Uaataiarit facility ia applying for • aaacuroa Cbnaervation and fecovary tet
   (KMO 53005 operating parnit.  This facility currently Mnagea scrap Mtal
   oaatinad for raelamtien.  On January 4,  1985, (SO FK  (14), tha Aoancy Oaclarad
   that acrap Mtal, «han racyclad, ia a Subtitla C Mata.  Concurrently, tha
   Agancy amounoed  that it tculd not ragulata acrap  netal deatinad for racycling
   at tfaia tin.  Bacauaa thia facility ia Backing a  S3005 oparating permit,
   tba facHitr Bjat addraaa ralaaaaa of h*r^rrV*** vaata  or ronst itir^"*"* fron
   any aolid waata Mnaganant unit punuant to S3004(u) (corractiv* action).
   Muat thia facility addraaa tha unragulatad acrap natal Benagewnt araa coo-
   earning
       •ran thauefc acrap aa>tal oaatinad for racycling  ia not ragulatad, it ia
       oonaioarad  a aolid vaata*  Thua, a ralaaaa of a haxardoua waata or oonatitiiant
       at tha acrap avtal aanaganant araa (aolid waata Banagaoant unit) mat ba
       •ddraaaad -porauant to *3004{u) of
       Booroat    Dava Pagan  (202) 382-4497

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                                                               9502.1985(05
                    RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                      AUGUST 85
Corrective Act: or. for Continuing Releases  ( 53004 (un

2.  An owner/operator of a  treacner.t, storage or disposal facility (TSDf) is preparing
    a fOA Part B application.   The  facility design includes sjnpt hoidi.TJ wastewattr,
    The wastewatar is considered a listed  hazardous waste because it contairj spent
    chlorinated solvents listed  L- 5261.31 and the mixture rule of $261.3(a)(2),
     Guidance  on  v.e $3004(u) corrective action  provision is found in RGv\ Reauthorization
     Statutory Interpretation 13  (RSI  13) dated  February 5, 1985, and the July 15,  1985,
     codification  rule (50  PR 28711).  ROtA pecnits issued after soveraoer 8, 1984,  mist
     contain compliance sch«3ules for  corrective action and assurances of financial respon-
     sibility  foe  ccavleting such corrective action per $264.101 (50 f* 28711).

     Source:    ave Fagan   (202)  382-4497

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m^
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY        95°2- 1985( 06 )

                         WASHINGTON, D.C. 20460
                             GCT 2 9  -335
                                                         OFFICE Of
                                                SOLID WASTE AND EMERGENCY RESPONSE

  MEMORANDUM


  SUBJECT:  Application of HSWA Sections to DOE's Oak Ridge Facility
  FROM:     Marcia Williams
            Director
            Office of Solid Waste

  TOt       Janes H. Scarbrough
            Chief, Residuals Management Branch
            Waste Management Division, Region IV


       Your July 25, 1985, letter asked several questions
  regarding the applicability of HSWA requirements to the DOE Y-12
  facility at Oak Ridge.  The first provision you asked about is
  §3004(u), which is invoked only when a facility is seeking a
  RCRA permit.  HWDMS indicates that the Y-12 facility is seeking
  a permit, which triggers the corrective action authority 'to
  address releases from solid waste management units (SWMUs).
  However, Oak Ridge is a Federal facility.  The applicability of
  §3004(u) has been called into question for Federal facilities,
  and EPA is involved in on-going negotiations with other Federal
  agencies on this issue.  Specifically, the final codification
  rule states thatt

        The extent to which the above interpretation
        applies to Federal facilities raises legal and
        policy issues that the agency has not yet
        resolved....Permit applications for Federal
        facilities will continue to be processed,
        but recognizing that final Federal facility
        permit* may not b« issued where these unresolved
        issues exist, EPA^will make its best efforts
        to re«olv« these issues in the next 60 days.
        50 F«eV tog. 28712 (July 15, 1985).
       If th*-*ffecility is seeking a RCRA permit and it has no SWMUs
  or if it has SWMUs that it agrees to address, the permitting
  process can move forward and corrective action pursuant to
  53004(u) can progress accordingly.  However, if the facility is
  not willing to address SWMUs, the permitting process for this
  facility becomes more complex.  For further information on
  §3004(u), please contact Dave Fagan of the Permits Branch at
  FTS 382-4751.

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                               -  2  -

      The  final  codification  rule does not set standards for
 implementation  of  §3004(v) and states that in the interim
 decisions to issue orders  for  this section shall be done on
 a  case-by-case  basis.  This  section of HSWA provides that:

       As  promptly  as practicable after the date of
       enactment...the Administrator shall amend the
       standards...regarding  corrective action required
       at  facilities for the  treatment, storage, or
       disposal,  of hazardous waste...to require that
       corrective action be taken beyond the facility
       boundary  where necessary to protect human health
       and the environment....

 If you are interested in pursuing  such an order for this
 facility,  you should contact Ginny Steiner of the Office of
 Waste  Programs  Enforcement at  FTS 475-9320.

     We are  as  yet unsure what mechanism to use in applying
 §3008(h)  to  Federal facilities due to our dispute resolution
 policy for such facilities.  Normally, however, if a facility
 is operating under interim status, the authorities in
 §3008(h)  can be used to deal directly with on-going environ-
 mental problems.   The trigger  for issuing such orders and
 initiating civil referrals is  the existence of a release.
 However,  because of the nature of the &3008(h) provision,
 it is  subject to limitations.  Your question is not entirely
 clear, however,  in terms of what units are leaking and
 their  permitting status.  You  state that the pond is a RCRA
 unit and  then state that it has  no ground-water monitoring
 system.   If  the pond is operating pursuant to the interim
 status requirements, it must have a ground-water monitoring
 system.   If  you have specific  questions on this process or
how it should be implemented,  please call Ginny Steiner at
 the number listed  above.

     In addition,  you have asked whether it is significant in
determining  the applicability  of RCRA corrective action that
one or more  contaminants being released through the NPDES
point  are  not sp«cified in the permit.  This factor is not
 significant  ia  determining RCRA's applicability to the
 release.   1fce> key  question is  whether the release from an out-
 fall addressed  ia  the NPDES permits is within the exemption
 for NPDES  discharges found in  $1004(27) of RCRA.  We are
currently  developing guidance  covering RCRA jurisdiction and
NPDES  discharges.

     You have also asked whether a release which occurred prior
to the date  of  the NPDES permit  could be addressed by correc-
tive action  measures pursuant  to §3004(u).  Corrective measures
could apply  to  a release which occurred prior to the issuance
of a NPDES permit.  As a matter  of policy EPA has decided to

-------
                              - 3 -

rely on the NPDES program to address releases, otherwise within
the scope of $3004(u), that are addressed by that program.
See 50 Fed. Reg. 28714 (July 15, 1985).  In keeping with that
policy it may become necessary to distinguish between releases
which occurred prior to the issuance of a NPDES permit and any
subsequent releases.  As a practical matter this may be diffi-
cult if not impossible to do; therefore, EPA policy is that
where such a distinction cannot be made and the existence of a
prepermitted release is clear, the entire contaminated area is
subject to clean up.

     Please feel free to contact Chaz Miller, our Federal
Facilities Coordinator, at FTS 382-2210 if you have any further
questions on these issues; we are developing the policies for
these new statutory authorities as quickly as possible.

cc:  Thomas W. Oevine, Director, Waste Management Division,
      Region IV
     RCRA Branch Chiefs,  Regions I-X
     State Programs Branch, OSW
     Permits Branch, OSW

-------
      3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     /                WASHINGTON. DC 20460
                         DEC I 6 1985
                                   9502.1985(09)
MEMORANDUM
SUBJECT:  Interpretation of Section 3008(h) of the Solid
          waste.Disposa,! Act
waste
  J
J.C/Wi
FROM:     J.C/Winston porter, Assistant Administrator
          Office of Solid Wte and Emergency Response
           (^Z^L/VK ^L^L
          CoTTrTneylr. Price, "Assist ant Administrator
          Office of Enforcement and Compliance Monitoring

TO:       Regional Administrators
          Regional Counsels
          Regional Waste Management Division Directors
          Director* National Enforcement Investigation Center

     As part of our effort to support case development activities
undertaken by United States Environmental Protection Agency
oersonnel, we are transmitting to you guidance on the use of
Section 3008(h), one of the corrective action authorities added
to the Solid Waste Disposal Act by the Hazardous and* Solid waste
Amendments of 1984.  As you are aware, Section 3008(h) allows the
Agency to take enforcement action to require corrective action or
any other response necessary to protect human health or the
environment when a release is identified at an interim status
hazardous waste treatment, storage or disposal facility.  Because
the authority is broad, both with respect to the kinds of environ-
mental problems that can be addressed and the actions that the
Agency may compel, we have produced the attached document to
provide initial guidance on the interpretation of the terms of
the provision and to describe administrative requirements.  The
document will be revised as case law and Agency policy develop!
In addition, the Office of Solid Waste and Emergency Response
intends to develop technical guidance on various types of response
measures and the circumstances in which they might be appropriate.

     In view of the need to issue RCRA permits and to ensure that
the substantial number of interim status facilities expected to
cease operation in the near future are closed in an environmental 1>
sound manner, we. encourage you to use the interim status corrective
action authority as appropriate to supplement the closure and
permitting processes.  Questions or comments on this document: or
the use of Section 3008(h) authority in general can be addressed t:
Gene A. Lucero, Director of the Office of Waste Programs Enforceme:
(PTS 382-4814, WH-527) or Fred Stiehl, Associate Enforcement
Counsel for Waste (FTS 382-3050, LE-134S).

Attachment

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 I.   ItfTRDCUCTION
      The Hazardous  and Solid Waste Amendments of 1984 have substantially
 expanded the  scop*  of the RCRA hazardous waste rnanaqeraent program.  One of
 the moat significant provisions  is the  inttrim status corrective action
 authority, which allows EPA to take enforcement action to cental response
 measures when the Agency determines that there is or has been a release of
 hazardous waste  at  a RCRA interim status facility.  Prior to the 1984
 Amendments, EPA  could require remedial  action at interim status facilities
 by,  inter alia,  (1) using RCRA 57003 or CSRCLA $106 authorities if an imniner.t
 and  substantial  endangernent may have been presented, or (2) when significant
 ground-water  contamination was detected, calling in Part 8 of the RCRA permit
 application and  requiring corrective action as a condition of the permit.  The
 Amendment* added Section 3008(h) to deal directly with environraental problems
 by requiring  clean-up at facilities that have operated or are operating subject
 to RCRA  interim  status requirements.
     The  purpose of this document is to provide preliminary guidelines on the
 scope of Section 3008(h) and to sunnarize appropriate procedures.  The document
will be  revised  as  case law and Agency  policy develop.  Other relevant RCRA
guidances that may be consulted include:
     • Final  Revised Guidance) on the Use and Issuance- of Administrative Orders
       under Section 7003 of JOA, Office of enforcement and Compliance Morutorir.<;
       and Office of Solid Haste and emergency Response - September, 1984.
     • Issuance  of Administrative Orders under Section 3013 of RCRA, office of
       Enforcement and Compliance Monitoring and Office of Solid Waste and
       Emergency UMponie - September,  1984.
     • Draft Guidance) on Corrective Action for Continuing Releases, Office
       of Solid Maate and Emergency Response • February, 1985.
     • Final RCRA Ground-Water Monitoring Compliance Order Guidance, Of fiee
       of Solid Waste and Emergency Response - August, 1985.

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                                      -3-
     Tb exoedite S3008(h) actions,  the Reaions  should establish procedures lor

drifting 'and  reviewing ortl«rs and referrals and clearly delineate the roles

and  responsibilities of Regional RCSA enforcement and program personnel (inciudirsg

CERCIA  personnel as necessary) and  the Office of Regional Counsel in those

processes.  Draft orders should be  sent  to the Chief, Compliance and Inpl«r»ntat:=r

Branch,  RCRA Enforcement Division,  Office of Waste Program Enforcement.

     Hcadquartcn is cormittsd to conducting tinly  nvi«w of $3008(h) orders.

To avoid tht delays associated with discussion and review of rough drafts, we

ask  that orders be in "near final"  form  wnen they are submitted.  Generally,

the  orders will be examined to determine whether (1) the elements of proof are

adequately defined and documented,  (2) the response  to be compelled is practicaole

and  environmentally sound, and (3)  the action supports national RCBA program goals.

Written  cownents or concurrence will be  provided to  the Regions within ten working

days of  receipt.


III.  SCOK OF SECTION 3008(h)

Section  3008(h) provides:

        (1)  Whenever on the basis of any information the 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) of this subtitle, the Administrator
            may issue an order requiring corrective  action or such other
            response Measure as he  deems necessary to protect human health
            or the) environment, or  the Administrator may commence a civil
            action in the United States  district court in the district in
            vtoich tne facility is located for appropriate relief, including
                        or permanent injunction.
       (2)  Jtoy order ittued under this  subsection nay  include a suspension
            or revocation of authorization  to operate under Section 3005(e)
            of this subtitle, shall state with  reasonable  specificity the
            nature of the required corrective action or other response
            measure, and shall specify a time for compliance,  if any
            person named in an order  fails  to oon^ly with  the order,  the
            Administrator may assess,  and such  a person shall be liable to
            the united States for, a  civil  penalty  in an amount not to exce«d
            525,000 for each day of noncorapliance with  the order."

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 pouring,  emitting, •nptying, discharging, in jeering, escaping, leaching,  i\jnpi.r.<;
 or disposing  into the environment.  The exemptions described in the CERCLA definit:
 art considered  inapplicable or inappropriate for JOA purpoMS, however,  and art -c
 includ«d  in the BCRA definition.
     The  term 'environment' is also broad.  The legislative history for
 Section 3008(h), which discusses UM of the authority to respond to release*
 to various environmental media, makes it clear that Section 3008(h) is not
 limited to a  particular medium.  H. Rep. No. 1133, 96th Cong., 2d Sess. 111-112
 (1984).  The  Agency will use Section 3008(h) to address releases to surface
 waters, groundwater, land surface or subsurface strata and air.
     It is not  necessary to have actual sailing data to show a release.   ATI
 inspector nay find other evidence that a release has occurred, such as a  broken
 dike at a surface impoundment.  Less obvious indications of release night also
 be  adequate to make the determination.  For example, the Agency cquld have
 sufficient information on the contents of a land disposal unit, ths dssign 
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      "Hazardous  constituents"  are  the  substances  listed  in Appendix VTi; to
 40  CFR Pare 261.   H.  tap.  No.  198,  98th  Cong.,  1st Sess. 60-61  (19831.
 According  to the  legislative history for Section  3004(u), which  is read  in con-
 junction with Section 3008(h),  the  term  also  includes Appendix VTli hazardous
 constituents released from solid waste and hazardous constituents that are react::
 by-products.  S.  top.  No.  284,  98th Cong., 1st  Sees. 32  (1983).  It should be
 noted  that the legislative history  for the new  underground storage tank  provisions
 states that Section 3008  is not applicable to underground storage tanks  regulated
 under  Subtitle I.  Such releases may be  addressed by Section 7002 and Section
 7003 authorities,  however.  H.  Hep. No.  1133, 98th Cong., 2d Sess. 127 (1934).
 Section 3008(h) remains applicable  to  releases  fron underground  tanks containing
 hazardous  or solid waste  subject to Subtitle  C  provisions.
 "...fron a  facility...*
     For interim  status corrective  action purposes, EPA  intends  to cnploy the
definition  of 'facility' adopted by the  Agency  in the corrective action
program for releases  from  permitted facilities.  The preamble to the perrutti.-.c.
 requirements  for  land  disposal  facilities indicates that the term  'facility1
 refers to  ..."the  broadest extent of EPA's area jurisdiction under Section
 3004 of RCRA...(meaning]  the entire site that is under the control of the
owner or operator engaged  in hazardous waste  management." 47 FT* 32288-39
 (July  26,  1982).   See) also the  Final Codification fele.  SO fR  28712  (July IS,
 1985).  Therefore, the definition of facility encompasses all contiguous property
under  the> owner or operator's control.
     The permit program,  as amended by Section  3004(u),  requires corrective  actic
 for releases of hazardous  waste and hazardous constituents from solid waste
management units  at a facility. EPA interprets 'solid waste manaaement  unit1

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 releases from *aste itarvageraert units not required to undertake  corrective
 action or otherwise exenpt from RQtt regulations and releases,  such as air
 emissions, to environratntal madia other than groundwater.   14.  at 112.
      The text of the statute,  the broad remedial purpose,  and the clear intent
 to authorize action beyond the scop* of the permit regulations  support the
 position that Section 3008(h)  authorizes CPA to addrvss all typ*s of rtlea»es
 of hazardous waste  within  a facility.   As discussed previously,  the ttrn
 'hazardous wastt* enccnpasses  'hazardous constituents1  from both hazardous and
 solid waste.
      Section 3008(h)  will  also be used  to address releases that havt nu?rate<1
 from  the facility.   New  Section 3004(v),  which provides that EPA may issue
 orders requiring corrective action for  releases that have  crossed the facility
 boundary if  the  permission of  the owner of the affected property can be obtained,
 supports the Agency's interpretation that such releases are subject to action
 under Section 3008(h).   See also the Final Codification Rule. 50 PR 23716
 (July 15,  1985).
      In  a  S3008(h)  order or judicial referral, Agency oersonnel should desc:n"»
 hazardous  and solid waste  management units within the boundary  of the facility
 and hazardous and solid  wastes (and associated hazardous constituents) managed ^y
 the facility  in  addition to information indicating that a  release has occurred.
Since Section 3008(h)  unequivocally authorizes EPA to address releases fran
units, the order or oosplaint  should establish some link between the hazardous
 constituent* In  a release  and  the hazardous or solid wastes in waste management
 units where  possible. For exatt^le, the findings of fact might state that  the
 facility treats,  stores  or disposes of  certain listed Subtitle C wastes, that
 those wastes  were listed because they contain the hazardous constituents cited
 in Appendix VII  to  40 CFR  Part 261 and  that sane or all of those constituents
 have  been  found  in  the environment, thereby indicating a release.

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 The  Agency Deliev»s tnac Congress  intended the interim status corrective 4ctioc
 authority to apply to such facilities.  The legislative history for Section
 3008(h)  supports this petition by making  it clear that the authority can ^
 used  to  address releases frcra units that  do not have  interim status, such aa
 wastewater treatment tanXs.  H. tap. No.  1133, 98th Cong., 2d Sess. 112 (1984).
     Third, EPA considers Section  3008(h) to be applicable not only to owners
 or operators of facilities in the  above two categories but also to units or
 facilities at which active operations have ceased and interim status has be«r.
 terminated pursuant to 40 CFR Part 124 or Sections 3005(c) and 3005(e)(2)  of.
 RCBA.  Section 3008(h) specifically provides that the interim status corrective
 action orders may include a suspension or revocation of the authority to opnrate
 under interim status, as well as any other response necessary to protect human
 health or the environment.  Consequently, a corrective measures program can
 be imposed under Section 3008(h), even if a facility's interim status has b»en
 taken away as a result of an interim status corrective action order.  The
 Agency also believes that Section  3008(h) can be used to compel responses to
 releases at facilities that lost interim  status prior to a $3008(h) action.
This approach is consistent with Congressional intent to assure that
 significant environmental problems are addressed at facilities that treat,
 store or dispose of hezinVnjs waste but do not have a final RCRA operating  or
post-closure permit.  H. Itop. No.  1133, 98th Cong., 2d Sess.  110-112  (1984).
     Whet* • State U authorized to administer the RCPA program, the  require-
ment* for obtaining the State's equivalent to interim status may differ fron
 thoae of the federal program.  In  authorized States that do not duplicate ttw
 federal procedures, hazardous waste treatment, storage and disposal  facilities
 that have not been granted or denied a final ROA permit are generally considered
 interim status facilities.  Land disposal facilities  that were  issued Statt permit!

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      for  •x*npl«,  • $3008 (h) ord«r might  r»quir* that th« owrwr or operator
 conduct a study  to characterize  the  nature and extent of contamination, tNm
 select  a  remedy  *nd submit  a corrective action plan to EPA.  The Agency and the
 owner or  operator  would  than confer  on the plan and amend the order  to reflect anv
 modifications.   H.  Hep.  No. 1133, 98th Cong., 2d SMS., Ill  (1984).  Becau.se a
 study on  the naturt and  extent of contamination and the Mltction and d«si;n of
 a nnwdy  may rtquirv a significant areount of tins, Section 3008(h) should b«
 «Bploy«d  to rvquirt int«rim rwasurta a« rwcvssary to protect hwnan h^alt.1-! and
 th« •nvironmtnt  prior to ooqpl«tion  of th« study and selection of a  r«r»cy.
 Cxanples  of inttrin rsrwdies that could be compelled include removal of the
 waste or  containment of  the source of the contamination by lining a  unit or
 erecting  dikes.  In acne instances,  preliminary punning and treating of affected
 groundwater may  be  appropriate.
      While the information  needed to make a determination that  there is or has
 been  a  release is minimal, more  information may be needed to justify a specific
 interim or full  remedy.  The Administrator can require "corrective action or
 such  other response measures as  he deems  necessary to protect human  health or
 the environment.*   To show  that  a response may be necessary to protect turian
 health  or the environment,  the present or potential threat posed by  the nilease
 should  be described.  The Agency may consider a variety of factors,  including
 the quantity of  hazardous *astej the nature and concentration of hazardous
 constituent* or  other hazardous  properties exhibited by the waste; the facility's
          *•»
waste BafsjgsMnt practices; potential exposure pathways; transport and environment
          -v
 fats  of hazardous  constituents;  hinans or environmental receptors  that might be
exposed;  the effects of  exposure, and; any other appropriate factors.  To compel
 corrective action  investigations or  studies, only a general  threat  to human
health  or the environment needs  to be identified.

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 Elements of Orders
      Because it is the focal point in all proceedings fubeequent to its  issuance,
 the initial order must be as complete as possible.   Failure  to develop an
 adequate document may have adverse consequences if  the Agency seeks judicial
 enforcement.   All $3008 (h)  orders should contain the following general elements:
      • A statement of the statutory basis for the order.
      • Factual allegations shoving that there is or KM been (1)  a relent  (2)
       of hazardous waste or hazardous constituents (3) into the environment
       (4)  at  or frcn an  interim status facility.   Ficts  indicating that the
       response is necessary to protect human health or the  environment should
       also be presented.
      • A determination, based on the factual  allegations,  that then is or
       has  been a release of hazardous waste  or hazardous  constituents to
       the  environment from an interim status facility.
      • An order that clearly identifies the tasks to be performed,  and a itchedult
       of compliance accompanied by appropriate reporting  and approval requirsmer.
      • A statement informing the respondent that he has a  right to request
       a hearing within 30 days of issuance concerning any material fact  in
       the  order or the terra* of the order.
      • A notice of opportunity for an informal settlement  conference.  It
       is the  Agency's policy to encourage settlement of 53008(h)  actions
       through informal discussions.  The respondent should  be cautioned, however
       that a  request for a conference does not affect the 30 day period i!or
       requesting a hearing.
    •  A statement that EPA may assess penalties not to exceed $25,000 per
       day  of  non-compliance with the order.
      It may be appropriate to include a provision for stipulated penalties  in
orders on consent.  Such  a provision* however, should be drafted to make  it
 clear that  the stipulated penalty is not EPA's sole remedy and that Agency  has
          .«•
not waiveAtbs statutory  authority to assess  penalties under Section 3008(h)(2).
 It is isnsseiiiliil that the Regions pursue judicial  referrals to inpose penalties
for nonoompliance with a  53008(h) administrative order rather than issuing
a subsequent order for penalties.

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 Developnent  and  Preservation of  the Adninistrative
      $3008(h) orders might be reviewed  In administrative or judicial
 Therefore, it U esa+ntial that  Information required by the statute and til
 other relevant infocaatian or documents obtained by the Agency be compiled in
 an adminiatrativt record, preserved and readily retrievable.  The EPA official
 initiating the action should maintain a file that contains the following:
      • EPA investigative record*, such as inspection reports, sailing and
       analytical data, copies of business rscordt, photographs, ttc.;
      • Rsports and intsmal Ag«ncy documtnts us«d in g«n«riting or support;.ng
       th« tnforcvntnt action, including txosrt witnsss statsraants;
      • Copits of all documents filed with the Regional Hearing d«rX or th<»
       Presiding Officer;
      • Copies of all relevant correspondence between EPA and the respondem:;
      • written records of conferences and telephone conversations between
       EPA and the respondents,  and;
      • Copies of all correspondence between EPA and State or other federal
       ag«nci«e pertaining to the enforoment action.
V. CIVIL JUDICIAL ACTIONS
     Under Section 3008(h), EPA may initiate civil judicial action to corbel
appropriate relief, including a  tenporary or permanent injunction, or to
enforce a 53008(h) administrative order.  As noted previously, the decision
to pursue administrative or judicial remedies will be made on a case-ov-
case basu.  Generally, however, a civil judicial action may be preferable
to issuance of an administrative order in the following types of situations:
       'IB
       not likely to oonply with an order or has failed to
y with a 53008(h) order.
       • A person's conduct must be stopped immediately to prevent irreparable
         injury, loss or damage to human health or the environment.
       • Long-tern, complex and costly response measures will be required.,
         (Because) compliance problems are more likely to arise during
         ioplsmtntation of these actions than while carrying out a svrple,
         short-tarsi action, it may be better to have the matter already
         before the court for ease of enforcement.)

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 In addition to increasing the  number  and  Hind* of units  subject  to correctivii
 action,  EPA will UM the Section  3004(u)  authority  to address  releases  to  air,
 land  and surface waters  as will as  to groundwater.  furthermore, Section 300
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     With  regard  to  imminent and substantial endangennent actions, the legis-
 lative  history makes it clear that enaccrwnt of Section 3008(h) does not
 alter the  Agency's interpretation of Section 7003.  H. Rep. No. 1133, 98t:h Cong.
 2d Sets. Ill  (1984).  RCTA $7003 or (ZfCIA $106 actions are appropriate :.f
 conditions at an  inttrin status facility may pr*««nt an ianirwnt and subiitartiai
 •ndanoarMnt  and  th« Agency rwsds to nov* quickly to address ths prool«&»   7h«
 'iourwnt hazard' provisions of IOA and CZIO nay bs Mpscially h*lofu:i  if
 th« Agency wishes to take action against responsible parties other than or in
 addition to the current owner or operator.

VII.  1CSE RATION
     The policies and procedures set forth herein and the internal offion
procedures adopted pursuant hereto are intended solely for the guidance
of United States Environmental Protection Agency personnel.  These policies and
procedures art not intended to, do not, and may not be relied upon to criate a
right or benefit, substantive or procedural, enforceable at lav by a par:y to
litigation with the  United States.  The Agency reserves the right to taKo any
action alleged to be at variance with these policies and procedures or that is
not in compliance with internal office procedures that may be adopted pursuant
to these materials.

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 ^         UNITED STATES EN VIRONMENTAL PROTE

                      WASHINGTON. D.C. 20460             9502.1986(01)


                        JAN  8 1986
                                                       OFPICE O*
                                              SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT:  RCRA Corrective Action  at  Federal  Facilities
FROM:     y? WTrtseon  PGrter
          Assistant Administrator

TO:       Regional Administrators,  Regions  I  -  X


     On November  19,  1985, I sent you a memorandum describing  a
Federal Register  notice we intended to publish  addressing
RCRA corrective action activities at Federal  facilities.   In
that memorandum,  I requested that you contact each of  the
environmental commissioners in your Region  to inform them  of
the notice and explain to them the  issues involved.

     Shortly after that I sent another memorandum requesting
that contact with the State environmental commissioners be
delayed while we  considered some issues surrounding the notice.
Those issues have now been resolved and I am, once again,
requesting that you personally contact your environmental
commissioners to  explain the notice.  Lee Thomas and I are
meeting with the  fifteen State environmental  commissioners on
the State/EPA Committee on January  16.  Since I intend to  bring
this issue up at  the meeting, I would appreciate your  making
these contacts before the meeting.

     I an attaching a copy of my November 19  memorandum, the
Federal Raglater  notice and talking points  which may be
useful when you telephone the environmental commissioners.
As before* subsequent to your contacts with the environmental
commissioners, I  recommend that your RCRA Division Directors
and Branch Chiefs also contact their State  counterparts  in
order to inform them.

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                               - 2 -
     The.development of regulations addressing corrective action
at Federal facilities will take some time.  However, I want to
stress that we should proceed, in close cooperation with the States,
to process Federal facility permit applications, including correc-
tive action where required.
Attachments

cc:  Hazardous Waste Division Directors,
     Regions I - X
     Hazardous Waste Branch Chiefs,
     Regions I - X

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            UNITED STATES ENVIRONMENTAL PRO             9502.1986(01
                        WASHINGTON, D.C. 204             Attachment
                          "OV19 1985
                                                        OFFICE Of
                                                SOLID WASTE AND EMERGENCY flESPONSi
MEMORANDUM
SUBJECT:  RCRA Corrective Action at Federal Facilities
FROM:     J. Winston Porter
          Assistant Administrator

TO:       Regional Administrators, Regions I - X

     On July 15, 1985, EPA codified the requirements of the
Hazardous and Solid Waste Amendments of 1984 (HSWA) in the Federal
Register.  The preamble to the Codification Rule (50 FR 28712)
explained that Federal agencies had several concerns aFout the
corrective action provision in $3004(u) of HSWA.  The preamble
stated that EPA would attempt to resolve the legal and policy
issues raised by the other agencies subsequent to promulgation
of the Codification Rule.

     Following extensive negotiation, EPA and the Federal agencies
have agreed that Federal facilities are subject to corrective action
requirements to the same extent as any other facility.  This decision
will be announced in the Federal Register (see attached draft notice,
an advance copy of which was E-mailed to you on Friday, November 15).
The announcement will also explain that the Federal agencies have
identified several issues which EPA believes merit further considera-
tion through future rulemaking.

     By this memorandum, I will explain those issues and how EPA
intends to address them.  I am also requesting that you personally
contact each of the State environmental commissioners in your
Region to inform them of the soon-to-be published Federal Register
notice and explain to them the issues involved.

     Below is a full discussion of each of the issues raised by
the Federal agencies and how EPA intends to address them.  I
have also attached talking points which may be useful when you
telephone the environmental commissioners.  I ask that you make
all of the telephone calls by November 27.  Subsequent to your
contacts with the environmental commissioners, 1 recommend
that your RCRA Division Directors and Branch Chiefs also contact
their State counterparts in order to inform them.

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Definition of  "Owner"

     a.  Although EPA has concluded that the statute requires
Federal agencies to operate under the same property-wide definition
of  facility as non-Federal entities, the Federal agencies have
pointed out that the United States could be considered the "owner"
of  a Federal hazardous waste facility.  Under that interpretation,
contiguous tracts of Federal lands owned by the United States but
administered by different Federal agencies could be considered a
single "facility" for corrective action purposes.  Therefore, for
purposes of §3004(u), EPA is interpreting the concept of ownership
as  referring to individual Federal departments, agencies and
instrumentalities.

     EPA will propose a rule to clarify the definition of owner and
explain more fully the rationale for recognizing specific subdivi-
sions.  In some cases, ownership would refer to major departmental
subdivisions that exercise independent management authority over
hazardous waste facilities.  For example, within the Department of
Defense, each of the four branches of the Armed Services would be
treated individually as an "owner".

     b.  The Department of Interior has expressed concern that
Federal agencies might be considered owners of hazardous waste
facilities on Federal lands operated by private parties with
partial property interests such as leases or mineral extraction
rights.  EPA intends to propose a rule that limits Federal agency
responsibility for facilities operated by private parties with
legal ownership interests by identifying a "principal owner" for
the purpose of defining the facility boundary under $3004(u).
To determine whether a private party on Federal lands should be
treated as a "principal owner", EPA might consider such factors
as the degree of control the Federal agency exercises over the
private party's actions or the amount of benefit the agency
derives from the private party's waste management operation.

National Priorities for Corrective Action at Federal Facilities

     Federal agencies have advocated the establishment of national
priorities for cleaning up releases at Federal facilities under
§3004(u).  The agencies have argued that since the Federal budget
is not unlimited, priorities would help optimize the use of avail-
able funds nationally.  They are also concerned that States may
not share the same priorities as those that may be established on
a national basis.

     Therefore, EPA intends to develop rules that would allow
Federal agencies, subject to EPA approval and after consultation
with the States, to set priorities for corrective action.  These
rules would assure a State's full participation in establishing
the priorities, but they would also require State adherence  to
the priorities, once established.

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     As stated earlier, EPA intends to fully involve the States
in the development of the rules described here.  We also intend
to involve Federal agencies and environmental groups, in order
to obtain the broadest possible perspective in developing the
regulations.  Please solicit, from your States, their views on
how we might best obtain State input; i.e., the appropriate
State organizations or individuals in State government who should
be involved in our negotiations.

     We have informed the Regional RCRA Division Directors and
Branch Chiefs of a conference call on this issue.  The call will
be conducted on November 21 from 2:00 to 3:00 pra, Eastern Standard
Time, and will be sponsored by staff of the Office of General
Counsel and the Office of Solid Waste.  To participate in the
call, Regional personnel should dial FTS-475-8347.

Attachments

cc:  Hazardous Waste Division Directors,
     Regions I - X

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January 23, 1986                                     9502.1986(Ola)


MEMORANDUM

SUBJECT:  Information on Solid Waste Management Units

FROM:     Marcia Williams, Director
          Office of Solid Waste

TO:       Regional Hazardous Waste Division Directors


     As you know, §3004(u) requires corrective action for all
releases of hazardous waste or constituents from previously
unregulated solid waste management units (SWMUs).   The
implementation of this provision has broad resource implications
for the RCRA program.  In order to properly plan for and request
the needed level of resources, we are undertaking a project to
characterize the SWMU universe nationally.

     This exercise will take place in conjunction with the Regional
Implementation Reviews and will be performed by Headquarters review
team members.  Based on the responses received from the SWMU
letters sent by your offices in January 1985, and any other SWMU
information summaries you may have already completed in-house,
information will be compiled on:  (1) the number of unregulated
SWMUs by facility type (i.e., storage/treatment, incinerator,
disposal), and (2) information on the type of SWMUs if such
information is available.  Although your existing SWMU information
should be available at the time of the facility review portion of
your scheduled Implementation Review, this exercise will not
require you to further analyze or summarize that information.  A
review team member will contact your staff prior to the facility
review.

     If you have any further questions concerning this project,
please contact Peter Guerrero, Chief Permits Branch, at 382-4740.
        This has been retyped from the original document.

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                                                         9502.1986(02)
Mr. Richard C. Fortuna
Hazardous Waste Treatment Council
1919 Pennsylvania Avenue, N.W.
Washington, D.C.  20006

Dear Mr. Fortuna:

     I am pleased to respond to your letter of December 30, 1985,
in which you posed several questions regarding the Environmental
Protection Agency's current policy approach to implementing the
new RCRA corrective action authorities provided by the Hazardous
and Solid Waste Amendments of 1984 (HSWA).  The following are
our responses to the specific questions which you raised in your
letter.

        Q:  Can a facility terminate interim status simply by
            withdrawing its Part A application?

        A:  A facility cannot simply withdraw its Part A application
            with the intention of terminating interim status and
            thereby absolve itself of any future RCRA responsibil-
            ities.  As provided by 40 CFR 270.73, interim status
            is terminated when (a) final administrative disposition
            of a permit application is made; or (b) interim
            status is terminated as provided in §270.10(e)(5).
            Termination of interim status must take place according
            to the procedures specified in 40 CFR Part 124.
            Thus, a facility such as the one mentioned in your
            letter cannot terminate its interim status by  simply
            withdrawing its Part A application.  Interim status
            will additionally be terminated if a facility  failed
            to certify under the Loss of Interim Status provisions
            of HSWA, and may be terminated pursuant to an  enforcement
            order.  In any case, however, the termination  of interim
            status does not terminate the facility's obligation to
            comply with interim status requirements, including
            groundwater monitoring and closure, permitting
            requirements or corrective action requirements.

        Q:  Are all land disposal units that received hazardous
            wastes after July 26, 1982, subject to the  $3004 cor-
            rective action requirements, even if such a  unit is
            closing?  What if such units  did not take hazardous
            wastes, but are releasing hazardous constituents?

        A:  Yes, all land disposal units that accepted hazardous

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                       -2-

     waste after July 26, 1982, are potentially subject to
     RCRA corrective action authorities.   First,  EPA would
     consider all such units to fall within the scope of
     its authority to issue corrective action orders to
     interim status facilities under Section 3008(h).  EPA
     believes that Section 3008(h) applies not only to
     facilities operating under interim status, but also to
     all facilities that terminate interim status and
     facilities that accepted hazardous waste after November
     1980,  but never formally qualified for interim status.
     In addition, 40 CFR §270.l(c) currently requires units
     that receive hazardous waste after January 26, 1983,
     to obtain either operating permits or post-closure
     permits,  These permits will require corrective action
     under 40 CFR 264.100 and Section 3004(u).  Also, new
     Section 3005(i) requires all units receiving hazardous
     waste after July 26, 1982, to meet the requirements
     of Subpart F to 40 CFR Part 264.  This includes
     requirements for corrective action for releases to
     groundwater under 40 CFR §264.100.  To implement
     this requirement, EPA is in the process of amending
     §270.l(c) to extend permit applicability to units
     that received hazardous waste after July 26, 1982.
     These permits will also require corrective action under
     40 CFR 264.100 and Section 3004(u).   A land-based unit
     that does not receive hazardous waste, but releases
     hazardous constituents may fall under these corrective
     action requirements.  We will assume for the purposes
     of answering your question that the unit accepted solid
     waste and is a solid waste management unit.   All releases
     of hazardous constituents from solid waste units located
     within the boundaries of a facility that contains any
     hazardous waste unit subject to the Section 3008(h)
     interim status order authority or subject to permit
     requirements will fall within the scope of the new
     corrective action requirements.  Section 3008(h) allows
     EPA to order cleanup of releases from solid waste units
     at facilities within the scope of the interim status
     corrective action authority; Section 3004(u) requires
     cleanup at facilities that obtain permits.

Q:   When is a facility or unit that undertakes closure
     subject to corrective action for continuing releases,
     and under which authorities: §3005(c) post-closure
     permits, §3004(u), §3008(h), or §3005(i)7  Under what
     circumstances would different or dual authorities be
     used at the same facility?  Which units would be subject
     to post-closure permits, and which units  subject to
     other corrective action mechanisms?

A:   As explained above/ if a closing unit has caused a
     release requiring corrective action, that corrective
     action can be required through either a post-closure

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                       -3-

     permit  (using the authority of §264.100 or §264.101,
     depending on the type of unit and the type of corrective
     action  required), or through an enforcement order.   (We
     are assuming that, by referring to closure, you are
     describing a facility that has at least one unit that
     accepted hazardous waste.) Section 3005(i) of RCRA
     does not of itself provide a separate mechanism for
     corrective action; rather, it simply establishes the
     applicability of Part 264 standards to regulated units.

          The exact mechanism(s) which will be used to
     require corrective action will depend on the specifics
     of the  situation at the facility.  The scope of the
     corrective action authorities under §3008(h) and §3004(u)
     are similar.  Regions and States are in the process of
     preparing plans for environmentally significant
     facilities to determine which authority, or combination
     of permitting and enforcement authorities, may be
     appropriate and yield most effective environmental
     results.  An example of a situation where a mix of
     authorities might be used to implement corrective
     action  could be a facility Where a serious release
     situation is known to exist, but where a permit for the
     operating units at the facility will not be issued  for
     a substantial period of time.  A §3008(h) enforcement
     order could be issued to compel the owner/operator  to
     begin the necessary investigations and/or implement
     required corrective actions, while the permit is being
     prepared.  When the permit is issued, the remaining
     corrective action activities would be conducted under
     the permit.

         As  explained in the previous response, the facilities
     currently subject to post-closure permits include all
     of those facilities that had an operational land disposal
     unit as of January 26, 1983.  If a facility is subject  to
     a post-closure permit, all solid waste management units
     at that facility are covered by that permit.

Q:   What monitoring requirements are or will be imposed
     at such facilities to determine the nature and scope
     of the  required corrective action?

A:   Regulated units which close under interim status
     are subject to the applicable ground water monitoring
     requirements of Subpart F of Part 265.  The adequacy
     of existing ground water monitoring systems will be
     evaluated as part of the closure process, and if
     necessary, will be required to be upgraded.  If ground-
     water contamination is detected, the owner/operator
     is required under §265.93 to make an assessment of  the
    -nature  and extent of contamination.  In addition, the
     units are subject to other authorities, including post-

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                       -4-

     closure permits and orders under Sections 3013 and 3008.
     Upon issuance of a post-closure permit, the applicable
     requirements for ground water monitoring, including
     compliance monitoring and corrective action, must be
     complied with.  As indicated by the preamble of the
     final codification rule, the Agency will generally
     look to the protection standards of Subpart F for
     clean up levels for releases to ground water at solid
     waste management units.  EPA is developing technical
     guidances for investigations at solid waste management
     units.

Q:   Would units that stored or managed fuels deemed to be
     hazardous under State law also be considered solid waste
     management units?  Under what circumstances, if any,
     would such units not be solid waste management units?

A:   The question of whether or not a unit which stores
     or manages a fuel would be classified as a solid
     waste management unit depends, in part, on whether or
     not that fuel is considered to be a solid waste under
     Part 261 RCRA regulations.  If the fuel is a solid
     waste,  the unit would be a solid waste management
     unit.

Q:   How does EPA Headquarters plan to interact with the
     States and EPA Regional Offices to ensure that closures
     of interim status facilities address the corrective
     action requirement?

A:   The Office of Solid Waste and Emergency Response
     currently is examining a number of issues relating to
     closing RCRA facilities and integration of corrective
     action at those facilities.  We expect to be issuing
     guidance to the Regions and States addressing the
     specific issues which you have raised, and others,
     in the future.

Please let m« know if you have any questions.

                         Sincerely,  />
                         J. Winston  Porter
                         Assistant Administrator

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                                                                   9502.1986(03)
             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                              JANUARY 86
5.   Corrective Action

    The Hazardous and Solid Waste  Amendments of  1984  (HSWA) set forth requirements
    for corrective action for continuing  releases under $3004(u).  This provision
    is applicable to any facility  that  is seeking a RCRA permit.

    A facility currently has a RCRA permit and is seeking a major modification
    to that permit under §270.41.   would  this facility be subject to the corrective
    action requirements of S3004(u)  when  goiny through a major permit modification?

        Section  3004(u) states that corrective action for a  facility shall be
        required aa a pondition of each permit issued after  November 8, 1984.
        Because  a permit modification is not equivalent  under $270.41 to the
        issuance of a permit, a facility that is seeking a major modification
        to a  RCRA permit  issued prior to November 8,  1984,  is not required to
        address  the corrective action requirements of $3004(u).  A  facility
        permit being reviewed for reissuance, however,  is subject to the §3004(u)
        corrective action provisions.

        Source:    Carrie Wehling (202) 475-8067

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                                                         9502.1986(04)

          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON. O.C. 20460
                             3 !
                                                          E Of
                                              SOLID WASTE AND EME«GENC> RESPONSE
MEMORANDUM

SUBJECT:  B.CRA Corrective Action at Federal Facilities

FROM:     BrucV'R. wed'dle, Director
          Permits and State Programs Division

TO:       Allyn M. Davis, Director
          Hazardous Waste Management Division  (6H)
          Region VI


     This responds to your memorandum of January  15,  1986,  in
which you pose several Questions about corrective action at
Federal facilities.  I hope this clarifies the relation between
the national priorities and corrective action.

     You asked how national priorities for Federal  facilities
will be coordinated.  We do not expect to have a  final rule
published in the Federal Register before eighteen months from
now.  In the interim, the Regions and States must continue  to
process and issue permits to Federal facilities.  Priorities
will be reflected in the compliance schedules  of  the  permits
for individual Federal facilities.  Compliance schedules should
be negotiated on a case-by-case basis with each facility, with
one of the factors considered being the parent agency's nation-
wide corrective action responsibilities.

     There are many ways we could address national  priorities  in
the proposed rule.  One method would be to establish  a national
ranking for each Federal facility.  Another method  would be to
develop a process for negotiating compliance schedules for
corrective action at Federal facilities.  At the  moment we  are
considering the latter approach.  Under this method/  corrective
action would continue to be addressed as described  above.

     You also expressed concern about lack of  funding for Federal
facilities.  EPA can influence the parent agency's  funding  deci-
sions through the A-106 budgeting process.  You should aggres-
sively use the A-106 process to ensure that funding is available
to undertake the activities in permit or enforcement  compliance
schedules in the timeframes provided.

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                               - 2 -

     You also asked if $3008(h) orders could be issued to
Federal facilities.  You should continue to issue $3008(h)
orders when appropriate.   Although we cannot assess penal-
ties to other Federal agencies, we can use the authority
of $3008(h) to compel investigation and cleanup activity.

     Finally, your memo stated that in accordance with
Winston Porter's November 21,  1985, memo, you would not
contact State Environmental Directors about corrective
action at Federal facilities.   That memo explained that
the States should not be contacted until issues raised by
the Department of Energy were resolved.  These issues
have now been resolved.  This was explained in a January 8,
1986, memo from Winston Porter requesting the Regions to
contact the States.  Please begin contacting State
Environmental Directors if you have not already done so.
If you have further questions about corrective action at
Federal facilities, contact Paul Connor of my staff at
(FTS) 382-2210.

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                         9502.1986(05)


                             MAR 2 4 1986
»r. Philip X. Mascianconio
United States Steel Corporation
one Tech Center Drive
:;onroeville, PA  15146

L/ear Mr. Maaciantonio:

     I am pleased to respond to your letter of February 19, 1986,
regarding the applicability or" KCRA corrective action requirements
to iacilities for which Part A applications were filed, but at
which hazardous wastes were never actually stored, treated or
disposed.

     If, as you stated in your letter, your facility never, did
treat, store or dispose of hazardous waste (as defined in 40 CFP
Part 261), EPA does not consider that facility to have attained
interim status, even though a Part A application was submitted
(i.e., a 'protective filing").  This interpretation is outlined
in a Federal Register notice published on September 25, 1985
(50 rR 36946).

     Facilities which have never engaged in treatment, storaoe or
disposal of hazardous waste are not subject to the corrective
action provisions of RCRA $3004(u) or S3008(h).  It should be
noted, however, that authorities under CERCLA or other statutes
may be available to the Agency to address environmental concerns
at such facilities, regardless of their status under RCRA.

     I hope this has adequately Addressed your concerns.  Please
let me know if I can be of further assistance.

                                Sincerely,
                                J. Winston  Porter
                                Assistant Administrator

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<5
V
         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY        9502.1986(06)
                    WASHINGTON, O.C. 104*0


                         APR I 5 BBS
                                                     or net of
                                            •OLIO WAST! ANO tMFHOtNCV MES^ONSE
Honorable Nary L. Walker
Assistant Secretary for
  Environment, Safety and Health
Department of Energy
1000 Independence Avenue, S.W.
Washington/ D.C. 20585

Dear Nary:

     Section 3004(u) of the Resource Conservation and Recovery
Act (RCRA) requires hazardous waste facility owner/operators
seeking permits to undertake corrective action for environmental
releases at solid waste management units within their facilities.
On Narch 5, 1986, EPA published in the Federal Register a notice
(copy enclosed) announcing EPA's intent to promulgate rules
implementing these corrective action provisions at federal
facilities.

     Among other things, the March 5 notice indicated that
•EPA intends to develop rules that would allow Federal agencies,
subject to EPA approval after consultation with the States, to
set priorities for correcting releases from solid waste manage-
ment units at facilities that they own or operate.'

     The notice also indicates that, in the interim before
these rules are finalized/ EPA and the States will review and
issue RCRA permits/ with EPA implementing corrective action
requirements at federal facilities until the State is authorized.
EPA will address issues not yet resolved by rulemaking on a
case-by-case basis*

     I want to encourage you to begin developing plans to
establish corrective action priorities within your agency.
Having such internal priorities will facilitate the ongoing
negotiation process for permitting during this  interim period.
I would like to meet with you within the next two to three
months to discuss your preliminary prioritization planning.

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                             -2-
      I  look  forward  to working with you  to  implement the
corrective action provisions.  If you have  any questions,
please  contact Jim Cruickshank of my staff, at 382-4431?

     Thanks very much for your cooperation  and assistance

                                Sincerely,
                                J. Winston Porter

Enclosure

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                                                                  9502.1986(07)
              RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                APRIL 86
7.  Corrective Action for UIC Wells

    The owner of a hazardous waste underground injection well  is
    applying to his State for a UIC permit after November  8,  1985.
    Section 3004(u), as amended by the Hazardous and  Solid Waste
    Amendments of 1984, stipulates that a RCRA permit issued  after
    November 8, 1984 must require corrective action  for all releases
    of hazardous waste or constituents from any solid waste management
    unit at a treatment, storage, or disposal facility.  Must  corrective
    action be addressed in the UIC permit?

         Section 270.60{b), regarding permit-by-rule  regulations  for
         UIC wells was amended in the final codification rule  (50 FR
         28752) to require compliance with corrective action  regulations
         under $264.101.  The proposed codification  rule of March 28,
         1986 restates that a UIC permit issued after November 8, 1984
         is not a RCRA permit-by-rule until corrective action requirements
         have been met for all solid waste management units at the
         facility (51 FT* 10714).  A memorandum dated  April 9,  1986,
         from Michael Cook (Office of Drinking Water) to the  Regions
         further clarifies this point by stating that a UIC permit  is a
         RCRA permit-by-rule when corrective action has been  addressed
         for the entire facility.

         Corrective action for the well only will be  addressed in the
         UIC permit.  If there are other RCRA units at the facility,
         corrective action for those units will be addressed  in a RCRA
         permit, when it is issued.  If there are no  other RCRA units
         requiring a RCRA permit, then corrective action for  any  other
         solid waste management units will be addressed in the UIC
         permit.

         Source:    Dave Pagan  (202) 382-4740
         Research:  Kim Gotwals

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                                                          9502.1986(07a!
               RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                                 APRIL 86
1.  Corrective Action Orders Under S3008(h)

    The owner/operator of a surface impoundment has managed hazardous wastes
    in the impoundment without interim status or a RCRA permit.  A release
    of hazardous wastes fron the impoundment has contaminated surrounding
    soil and groundwater.  Upon discovery'of this improper management and
    resultant contamination, the EPA intends to issue a corrective action
    order under Section 3008(h)  of RCRA.  Given that the owner/operator
    never an interim status, can the corrective action order be issued?

         Section 3008(h)  authorizes the EPA Administrator to issue
         corrective action orders to address releases of hazardous
         wastes into the environment from facilities authorized to
         operate under Section 3005(e).  This authority extends to
         include those facilities that should have had interim status,
         but failed to notify EPA under Section 3010 of RCRA or failed
         to submit a Part A application.  Accordingly, the corrective
         action order can and should be issued to ensure prompt and
         thorough clean-up of the site.  (Please see the December 16,
         1985 memorandum from J.  Winston Porter, Assistant Administrator,
         Office of Solid Waste and Emergency Response, entitled
         "Interpretation of Section 3008(h) of the Solid Waste Disposal
         Act").

         Source:    Virginia Steiner  (202) 475-9329
         Research:  Jim Ginley

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY       95Q2 1986(09)
                   <£     ,-       «••. •        -.         ^4
MEMORAJtDUM
SUBJECT!  Permit Issues Related  to U.S. Army  -
          Aberdeen Proving Grounds

PRUKi     Bruce Heddle, Director
          Permits and State Programs Division

TOi       Robert Allen, Chief
          Masts Management Branch


     In your memorandum of January 24, you  requested  our  response
to several issues surrounding the issuance  of the corrective
action portion of the permit for Aberdeen Proving Grounds.  Our
response to each issue is discussed separately below*  This
information has also been discussed with Jack Potosnak of your
staff.

1.  Definition of "facility0 as  it applies  to Federal facilities.

     Notice was published March  5 (51 Federal Register 7722)
which resolves three issues outlined in the Final Codification
Rule, regarding the definition of fecility  for purposes of
corrective action at Federal facilities!

    1.  Mill establish that |3004(u) is applicable  to Federal
        facilities;

    2.  Reconfirms the definition of 'facility* as  the
        •ntirs site under control of the owner/operatori

    3.  Establishes that the owner of Federal lands is the
        individual Federal department or agency, rather
        than the SB vovernment.
     A second notice was  also  published which  announces our  intent
to develop regulations  to address  additional issues  raised by
Federal agencies  Including national  priorities Cor corrective
action.

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                              -  2 -


2.  Unexploded Ordinances

     You inquired •• to whether  range/impact areas containing
unexploded ordinances at Aberdeen qualify as solid waste management
units.  W« believe such areas do not qualify because there is a
strong argument that unexploded ordinances fired during target
practice are not discarded materials within the regulatory definition
of 'solid waste".  Ordinances that do not explode would be expected
to land on the ground.  Hence, the "ordinary use" of ordinances
includes placement on land.  Moreover, it is possible that the
permittee has not abandoned or discarded the ordinance, but rather
intends to reuse or recycle them at some point in the future.

     Also, the U.S. District Court for the District of Puerto Rico
held that the military target practice activities do not generate
•solid waste* because the statutory definition does not include
materials resulting from military operations.  Barcelo v. Brown,
478 P. Supp. 646, 668-669 (D. Puerto Rico 1979) (copy of relevant
portions attached).  The Court qualified this position, however,
by suggesting that when the military engages in activities that
resemble industrial, commercial or mining operations/ or community
activties, materials resulting from such operations are wastes
and are subject to regulation under RCRA.  Hence* we think the
Court's opinion suggests that materials resulting from uniquely
military activities engaged in by no other parties fall outside
the definition of solid waste.

3.  White Phosphorus Burial Zone

     As relayed in your memorandum/ white phosphorus munitions
were dumped in a shallow water area and covered with fill.  The
area is part of the Chesapeake Bay/ but it is within the boundary
of Aberdeen Proving Ground.  You asked whether the the fact of
being underwater restricts applicability of RCRA/ HSWA authorities,
and whether a multi-year monitoring program can be prescribed at
the location.

     As described in the January 30, 1985, draft guidance on
corrective action for continuing releases under |3004(u), the
tent "solid vaate management unit* applies to active and inactive
units containing hasardous wastes or solid wastes at the facility.
further/ the t«m facility is defined as including all contiguous
property undtor the control of the owner or operator at which the
units subject to permitting are  located.  In the case of the
white phosphorus burial sone, since white phosphorus is a hasardous
waste and the unit is located within the facility boundary/ the
fact of being underwater would have no effect on its designation
as a solid waste management unit.  Further, since the unit would
be subject to $3004(u), a water quality monitoring program would
appear to be an appropriate response to determine evidence of
any releases from the unit.

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                             - 3 -
4.  Radioactive Material

     You inquired •• to whether aeveral items listed in your
memorandum fall undar tha "aource apacial nuclear, by-product
material" exemption undar 261. (a) (4).  Tha items would not ba
axampt to tha axtant thay ara mixed with or contain haiardoua
waata.  However, no RCRA regulations hava baan davalopad to covar
auch mixed radioactiva waataa.

5.  Drum Claanup

     Your laat iaaua eantarad on  tha appropriatanaa of a permit
condition raquiring a facility-wide affort to locata and racovar
abandoned 55 gallon drums found on tha aita.  Drums with contents
would ba taatad and removed to the container atorage area if
found to be hazardoua.

     We do not believe exiating author it lea would allow recovery
of theaa druma unlaaa there waa evidence of a release.  Under the
authority of Section 30U4(u), if  EPA'a preliminary aaaaaamant
ahowed that there waa a reasonable likelihood of releaaea of
hazardoua conatituenta iron any of theae druma, EPA or the facility
could test the material in the drums to determine if the remaining
waata ia hazardoua and to determine if any releaaaa hava occurred.
If releases had occurred, the appropriate corrective action neaaur<»s
could be required.

     If you have any further queationa, please contact George Paiaon
at 382-4482.

Attachment

cci  KCftA Branch Chiefa (w/o Attachment)

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                                                            9502.1936(101
          RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                             MAY  86
4. Corrective Action

   The Hazardous and Solid Waste Amendments of 1984 contain several
   corrective action provisions.  Section 3004(u)  requires that permits
   contain provisions for corrective action and financial responsibility
   for implementing such corrective action.  Amended Section 3004(a)
   of the Solid Waste Disposal Act (SWDA) authorizes regulations on
   financial assurance for corrective action.  Does this financial
   responsibility requirement extend to amended Section 3004(v),
   corrective action beyond the facility boundary?

        Yes, the proposed codification rule dated  March 28,  1986 (51  PR
        10714) explains that the financial responsibility requirement
        extends to corrective action beyond the facility boundary.
        Proposed Section 264.101(c) codifies this  requirement.   The
        final closure rule, issued on May 2, 1986  (51 FR 16422),
        contains some financial responsibility provisions, but  does
        not contain specific provisions for corrective action.   The
        Agency will address the specific requirements for financial
        responsibility for corrective action in a  separate proposal
        due out in September 1986.

        .Source:    Debbie Wblpe  (202) 382-7729
        Research:  Kim B. Gotwals

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                                                          9502.1986(11)
                              JUN 161986
 "r.  Harrv C.  Conner
 President and CEO
 'Jaste-Tech Services,  Inc.
 13400  West 10th Avenue
 Golden,  Colorado  30401

 Dear Mr.  Conger:

      Thank you for your May 21,  1986,  letter concerninq  the
 requirements  needed to meet the  land disposal ban of the Hazardous!
 and  Solid Waste Amendments of 1984  (HSWA).   You expressed concern
 that the  permitting process and  the corrective action program pose
 an  impediment in meeting the Julv 1987 land  disposal ban deadline
 for  haloqenated oraanics and similar deadlines.  We appreciate
 your thoughtful comments and suggested guidance to the Ren ions
 and  States.

      while the Congress and the  Environmental Protection Agency
 (EPA)  believe it is important to implement the land disposal  ban,
 Congress  did  not indicate  a willingness to forego other  important
 activities, such as corrective action  and permitting,  to accomplish
 this.   EPA is trying  to implement corrective action and  nermittinn
 in a manner that has  the least disruptive impact  on implementation
 of the land disposal  ban.

     As  to vour suggestion for a waiver of the nre-construction
 ban,  Section  3005(a)  of the Resource Conservation and  Recovery
 Act  (RCRA) precludes  construction of new facilities until  a permit•
 is issued.  EPA does  not have discretion to  waive thisj  it would
 reguire  a statutory change.

     You  also made son* specific suggestions about corrective
 action.   W* have Issued guidance which addresses  many  of your
 concerns  a copy of which is enclosed.   The guidance states that
 an incinerator/treatment; unit can be permitted separately.  That
 permit must address all releases to media other than ground
 water  froa regulated  units—i.e., land disposal units  that received
 waste  after July 24,  1982—and all  releases  from  non-regulated
 units.  A permit  issued separately  to  regulated units  would
 address any needed ground  water  corrective action in accordance
 with Subpart  P of 40  CFR Part 264.   Corrective action  for  media
 other  than ground water normally takes place after issuance of
 the  permit through permit  schedules of compliance.   For  ground
  t
howeuer, yu«t be  con
Before  issuance of| t


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     Finally, nround water  rel^as^s  fron reaulatf?H  units can
addressed in separately  issued  remits.   This  is  usually the
"^ost tifne and resource  intensive  oart  of corrective action,
it should greatly reduce  permit development  and  orocessinq t
for incinerator/treatment units.

     Aqain, thank you  Cor your  thouohtful letter.  The Aqencv
identifies new treatment  canacity as a hiqh  oerTnittinn priority
and will continue to do  everythinn that it can to implement  t-he
nost efficient rerjulatorv oronram within the new provisions  of
the law.

                              Sincerely,

                               ./s/ Taok  If. i'afirftT

                              J.  Winston Porter
                              Assistant Administrator
 WH-562/D.ZEITLIN/sld/6-9-86/Control  No.:AX600861/Due Date:6-10-86
        382-4651

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                                                    9502.1986(13)
August 22, 1986

MEMORANDUM
SUBJECT:  Applicability of Regulations on Financial Assurance for
          Corrective Action

FROM:     Deborah L. Wolpe

TO:       Gary Gosbee, Region I


     You have asked for an interpretation of the applicability of
the financial assurance for corrective action requirement to both
regulated units and other solid waste management units.  The July
15, 1985, final codification rule contained two references to the
financial assurance for corrective action.  Section 264.101
entitled "Corrective Action for solid waste management units"
states that permits shall contain "...assurance of financial
responsibility for completing such corrective action."  Section
264.90(a)(2) entitled "Applicability", states that "...The
financial responsibility requirements of §264.101 apply to
regulated units."  Your question appears to be whether
§264.90(a)(2) supersedes §264.101(b), so that financial assurance
only applies to regulated units.

     As you know, regulated units are a subset of solid waste
management units (see 50 Fed. Reg. 28702, 28714, July 15, 1985).
Our interpretation is that the statement on financial assurance
in §264.90(a)(2) is not necessary, but is there as a reminder
that regulated units are subject to the requirement in §264.101.
Ordinarily, an owner or operator of a facility with only
regulated units complies with the requirements of §264.100, not
264.101, and therefore might miss the financial assurance
requirement, which is only in §264.101.  Financial assurance
applies to all solid waste management units, including regulated
units.
        This has been retyped from the original document.

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                         en tiKUNMCff I AL PROTECTION AGENCY      Qcn, 100,,
                                                          3 bU <.. ir do I 14 )
                             AUG 2 2  1986
Mr. Carl Schafer, Jr.
Deputy Assistant Secretary
  of Defenae. (Environment)
Department of Defenae
The Pentagon, Room 3D833
Waahington, D.C.  20301

Dear Mr. Schafer:

     I would like to bring to your attention an iaaue that nay
frustrate our mutual efforta to clean up hazardous vaate contamina-
tion.  On November 8,  1985, the Cannon Air Force Base aubmitted a
Part B pernIt application co Region VI.  The application addressed
one surface impoundment, one container storage area, one landfill,
and one open-burning treatment area.  The Part B application
contained no information on the 41 sites addressed by the CAFB
Installation Restoration Program.  On April 30, 1986, Region VI
requested information on the solid waste management -units that
were not identified in the Part B application.  CAFB responded to
EPA's request with the following language:

          We have omitted these sites and units with the
          understanding that the Environmental Protection
          Agency agreed at the Washington level that the
          IRP will continue to function as a DOD program
          that ia not regulated under RCRA and the 1984
          Amendmenta.  We understood this agreement was
          based on recognition that clean up of DOD sites
          should be baaed on national priorities rather
          than regional or local ones.  If the IRP Is
          subject to regulation by the EPA regions,
          national priorities will be lost.  We have not
          been notified by Air Force authorities of any
          change in chit understanding.  Therefore, we did
          aec Include In our Part B application any alee or
          unit addressed in Che IRP.

     CAFB states that RCRA and the 1984 Amendments do not apply
to DOD'a IIP*  We are concerned that CAFB'a position repreaenta
the official position of the Air Force.  For example, Offutt AFB
haa informed another EPA Regional Office that the laae ia not
required to algn a schedule of compliance under Section 3004(u)
of RCRA until EPA Issues a final rule on national priorities for
corrective action.

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                                -2-


     It appears Chat Che Air Force hat misinterpreted our
rulemaking efforts on corrective action at Federal facilities.
It is EPA's position that Section 3004(u) applies to Federal
facilities.  Furthermore, ve shall continue to call for permit
application* and Co issue RCRA permits to Federal facilities.
Our permitting prograsi is not delayed or postponed pending our
rulemaking OB priorities for corrective action at Federal faci-
lities.  We rtiterated our position on this Issue in a March  5.
1986, Rotlee published In the Federal lexliter, which clearly
stated that, "In the interim [while warking to resolve national
priority and principal owner IssuesJ, EPA and the states will
proceed to review and Issue IdtA permits, and EPA will implement
3004(u) requirements at federal facilities."

     Because our permitting program cannot wait for a final rule
on national priorities, ve encourage you to begin setting priorities
tor corrective action under Section 3004(u) of RCRA.  Your priorities
can be used as a factor during permit negotiations, and schedules of
coapliance under Section 3004(u) can reflect the relative priority
of your facilities.

     If the Air Force has misinterpreted our position on Section
3004(u), I would appreciate your clarifying to then their obli-
gations under RCRA.  I am confident that our offices can avoid
misunderstandings during future permit negotiations if we maintain
a common understanding of RCRA.  Please let me know the outcome
of any discussions on this matter you may have with the Air Force.

                           Sincerely yours,


                            /a/ Jag* R. MoGrar
                              Winston Porter
                           Asalatant Administrator
cc:  Warren Hull
     Michael Heeb
     Jim Crulckshaak
bcc: Hazardous fiaste Division Directors & Branch Chiefs,
      Regions -I-X

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                                                     9502.1986(15)
MET 10PAN DUN

SUBJECT:  regulatory Status of *ood Treatment Cylinder
          Creosote Sumps

FROM:     Marci
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                             -2-
     Pleaae be aware, if yea are not already, that the Agency ia
currently developing a proposed regulation (expected to be
published in the federal Register in the spring of 1917) which
•ay list as hasardous wastes certain wood preservation and
treatment wastes*  Such a listing may affect the regulatory
status of the sump in question.  (For additional information
contact Dr. Gate Jenkins at FTS 382-4786.)  In addition, you may
also wish to review a draft memorandum entitled "RCRA Regulatory
Interpretation Assistance Request - Cleanup of Residues of
Commercial Chemical Products Within a Warehouse Storage Area,"
which was circulated to the Regions for review oa June 3, and
which deals with issues related to those posed in your memorandum.

     The recent decision by Judge Tost in In re Irown *cod
Preserving Co., Inc. (RCRA-84-K-R) does not require IPA to
publish this MBorandua.  That decision takes the position
that the Administrative Procedure Act requires the Agency to
publish policy memoranda and interpretive statements that set
out new rules or substantially modify existing rules*  This
memorandum merely offers an opinion as to whether the facts you
have outlined for this facility fit the existing definitions of
•solid waste," •hasardous waste,* and "solid waste management
units."  It does not establish a general policy of treating all
process sumps at wood preserving facilities as "solid waste
management units."  Hor does it create or change any other
rule or policy.

     I appreciate that we need to be careful to go through
notice and comment on decisions that might be interpreted as
expanding regulatory controls beyond what is evident from
existing rules or statutory language.  Per example, if we list
certain wood preservation wastes we may want to discuss in the
Federal Register the regulatory status of areas in which en-
vironmental releases from treated wood are routine and expected.
         iver, publishing statements of general policy would
not solve the entire problem presented in the Brown case. The
Regions also need to ensure that the facts of each ease show a
violation of the statute or regulations.  Complicated scientific
or technical issues may require you to use experts to present or
explain the evidence*

     Applying these ideas to the facility described in your memo-
randum, to regulate the sump as a SWMO you would have to collect
facts demonstrating, for example, that the creosote in the sumps

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                             -3-
was in fact "discarded," and that the suirp is a "discrete" unit
This nenorandurn cannot sjsstitute for fim factual evidence
concerning the specific facility at issue.

     If you have additional questions, please contact
y.ichele Anders at FT3 362-4534.

cc:  Gene Lucero, CWPE

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                         9502.1986(16)
MEMORANDUM


SUBJECT:  Open Burning/Open Detonation at DOD Facilities

FROM:     Bruce R. Weddle, Director
          Permits and State Programs Branch  (WH-563)
          Office of Solid Waste

TO:       Gary B. Gosbee, Chief
          MA Waste Regulation Section
          EPA Region I


     This memo responds to your September 8, 1986 memo about
EPA's definition of SWMU's at DOD facilities.  Your memo outlined
EPA1s regulation of open burning/open detonation  (ob/od) areas,
and you explained how this applies to the Fort Devens facility.

     I agree with your interpretation of the ob/od issue, and
it appears from your description of the units at Fort Devens
that your interpretation of SWMU's is consistent with our under-
standing of the ob/od issue.  RCRA applies to discreet areas
where DOD performs ob/od for disposal purposes.  RCRA does not
apply to "training areas" or "impact ranges" as long as these
areas are not used for disposal purposes.  If however, DOD used
a training area or impact range for disposal purposes, then
these areas might be subject to RCRA.

     In the near future EPA will propose new regulations under
Subpart X of 40 CFR Part 264.  The proposed regulations in
Subpart X address the ob/od issue.  Because you have practical
experience in this area I encourage you to comment on the new
regulations when they are proposed in the Federal Register.

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                              - 2 -
Paul Connor (PTS 475-7066) is the contact on this issue in my
Division and Ossi Meyn (FTS 382-4654) is the point of contact
on the new Subpart X regulations.  Thank you for keeping me
informed on this issue.

cc:  Dave Pagan
     Ossi Meyn
     George Garland
     Jim Michael
     Andrea O'brien
     Gwen Ruta
     Craig Johnston
     Tina Kaneen
     Lee Herwig
     Warren Hull
     Matt Hale

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                                                    9502.1986(17)
September 29, 1986


Captain Michael Carricato
Deputy Assistant Secretary
  of Defense (Environment)
Room 3D833
The Pentagon
Washington, D.C.  20301-8000

Subject:  Summary of the September 17, 1986 Meeting

Dear Captain Carricato:

     Thank you for coming here to discuss the applicability of
RCRA to DOD's installations.  I was encouraged by our meeting,
and I was pleased with our progress in identifying RCRA issues
that arise at your facilities.  This letter summarizes my
understanding of the issues we discussed at the September 17
meeting.  Please contact me if your understanding of our meeting
differs from the following.

     We discussed three issues that often arise when EPA is
preparing a RCRA permit for a DOD facility.  These issues arose
recently in two letters from DOD to EPA Region III.  The letters
addressed RCRA permits at DGSC in Richmond, and Aberdeen Proving
Ground.  We are anxious to resolve these issues and I hope that
our recent discussions more accurately reflect DOD policy than do
the two letters.  The three issues are:

     1.   Will EPA's RCRA permits incorporate the IRP cleanup
          schedule for "IRP units"?

     2.   Does EPA's RCRA program have oversight over the IRP?

     3.   Does RCRA apply to "non-IRP units"?

     We agreed that EPA's schedule of compliance under §3004(u)
could incorporate, to the extent practicable, the IRP cleanup
schedule.  We further agreed that EPA's RCRA program included
oversight over the IRP cleanup when included in the permit.
Finally, we agreed to further discuss the applicability of RCRA
to "non-IRP units."
        This has been retyped from the original document.

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                               -2-

     We discussed EPA's definition of "facility."  I reiterated
EPA's position that is discussed in the March 5, 1986 FR Notice.
We agreed that if DOD wishes to pursue this issue, you will
discuss this with me, and I will schedule a meeting with Marcia
Williams, if necessary.

     We agreed on the need for policy development between our
offices and for dispute resolution procedures.  I suggested two
possible mechanisms:

     •    a headquarters-level task force that would meet
regularly to discuss issues and resolve policy questions for DOD
facilities;

     •    a process for resolving disputes between DOD and
authorized States or EPA Regional offices.  We agreed to address
these proposals in more detail during subsequent meetings between
our two offices.

     I mentioned a meeting between our two Offices of General
Counsel on the issue of DLA ownership.  You agreed to. look into
ways of expediting the transfer of information to us about DLA's
property management authority.  This information will assist our
General Counsel's office in resolving this issue.

     We will contact you shortly to set up another meeting.
Please let me know if you have anything to add to this summary.

                         Sincerely yours,
                         Bruce R. Weddle,  Director
                         Permits and State Programs Division
                         Office of Solid Waste
cc:  Paul Connor
     Mike Heeb
     Warren Hull
     Marcia Williams
        This has been retyped from the original document.

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            RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                            SEPTEMBER 86
5.  RCRA Enforcement

    When can the §3008(h) authority be used?  How can a $3013 order
    supprt the $3008(h) action?

         The Hazardous and Solid Waste Amendments of 1984 (HSWA) added  $3008(h),
         one of the corrective action authorities, to the Solid Waste Disposal
         Act.  Section 3008(h) allows the Agency to require corrective  action or
         any other response necessary to protect human health or the environment
         when a release of hazardous waste is identified at an interim  status
         hazardous waste treatment/ storage or disposal facility.

         Section 3008(h) provides:  "Whenever on the basis of any  information
         the Administrator determines that there is or has been a  release of
         hazardous waste into the environment...".  Appropriate information can
         be obtained from a variety of sources, including data fron laboratory
         analyses of soil, air, surface water or ground water samples,  observa-
         tions recorded during inspections, photographs, and facts obtained from
         facility records.

         Actual sampling data is not necessary to show a release.  Other evidence
         that a release has occurred might be a broken dike at a surface impound-
         ment discovered by an inspector.  Less obvious indications of  a release
         might also be adequate to make the determination.   For example, the
         Agency could have sufficient information on the contents  of a  land
         disposal unit, the design and operating characteristics of the unit,and
         the hydrogeology of the area in which the unit is located to conclude
         that there has probably been a release to groundwater.  The Agency
         could then order the owner or operator to perform an investigation to
         confirm the presence of contamination, and, after confirmation, to
         undertake corrective action.
          However, to exerciae the interim status corrective action authority,
          the Agency must first have information that there is or  has been a
          release at the  facility.  Additional sources that may  provide infor-
          mation on releases include: Inspection reports, RCRA Part A and Part B
          permit applications, responses to RCRA $3007 information requests,
          Information obtained through RCRA $3013 orders, notifications required
          by CERCLA $103, information gathering activities conducted under CERCLA
          $104, and informants' tips or citizens' complaints corroborated by
          supporting information.

          A $3013 order may be used in some instances in which EPA does not have
          adequate information that there is or has been a release.  Section  3013
          provides that the Agency may compel monitoring, testing  and analysis if
          the  presence  of hazardous waste at a facility or site  at which hazardous
          waste has been  treated, stored or disposed of may present  a substantial
          hazard to human health or the environment.

          Source:    Ginny Steiner   (202) 475-9329
          Research;  Caroline Danek

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                                           9502.1986(19)
MEMO RANDOM
SUBJECT;  Headquarters Support for Corrective Action
          Technology

PROM:     Bruce R. Weddle, Director
          Permits and State Prograve Division

TO.       RCRA Branch Chiefa, Region* I-X


     The corrective action authorities of RCRA provide one of
the Agency's most effective tools for assuring the clean-up of
releases at hasardous waste management facilities.  Because of
this, ve are committed to providing you with continuing technical
assistance on corrective sction.  This summsr the Land Disposal
Permit Assistance Team (PAT) had a PhD candidate in geology
working full time investigating case studies of corrective action
technologies.  (!• focused on the clean-up of ground water, soil,
and surface water.  The results of his efforts weret  (1) the
creation of a corrective action computer database; (2) biweekly
technical sessions for OSWER staff: (3) a seninar for non-technical
management and staff) and (4) a list of suggested publications
for a base library on corrective action.

     Some of the results of these efforts are available for your
use right now, while other projects are in the planning staae.
The computer database is now available to help your stsff analyse
corrective action proposals which are submitted by owner/operators.
It contains over 200 entries* which are summaries of journal
articles and fcPA publications on corrective action technologies
which have been demonstrated in the field or in bench scale
projects.  The system is designed around a list of key words,
which Is attached (along with an example of a data output),  we
direct the computer to search for and locate entries that contain
key words !• which you ars interested*  Por example, you may
be interested in elesnup experience with specific chemicals
(e.g., PCBs, TCI), or using specific technologies (e.g., air
stripping, in situ biological treatment).  When the computer
finds entries which contain those key words, it will print out a
citation and abstract of the appropriate srtlele(s).  If the
abstract seems relevant, the entire article can then be examined
in your library.

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                              - 2 -
     Nor* details will be given to your ataff when they call in
with a requ**t.  At th* present the data bat* ia acc«aaed by
calling Jan*tt* iansen (PT3 382-4754) or Dave Eberly (PT8 382-4691)
with your r**7o**ts.  Aft«r w* get a computer with a modem, you
will b« abl* to directly access th« database with a Regional PC
through a modem.  We will send out detailed instructions on how
to do thia when the system is aet up.  The database will be
updated on a regular baa is.

     Thia summer's sepinar on corrective action technologies was
well received.  I have attached a copy of the handout from the
seminar, which I believe will be useful to you, even without
having attended the seminar.

     As was mentioned above, a list of suggested references on
corrective action was compiled during the creation of the databaae.
I have attached that list in hopes that your office will be able
to provide your staff with copies of each publication.  The sources
of the publications are also attached.

     In the future, we plan to set up a corrective action computer
bulletin board for staff to communicate between Region*.  Por
example, if a staff member in one legion would like to know if
anyone else has encountered a situation similar to one which
they have met, they can put up a 'note* on the bulletin board.
Staff from other Regions can view the bulletin board and contact
the person who had the queation.  This can help to improve
communication between the Regions on issues of common interest.
We will also consider the need for other information sharing
mechanisms (e.g., conference calls, workshops) as we all develop
experience in this area.

     Finally, we hope that you will help us to share interest!no
corrective action proposals throughout the Regions and States.
when you receive a proposal which could be of some interest to
others, plea** contact Dav* Bberly or Janette Ran*en (numbers
listed above).  They will work with you to decide th* bsst way
to disseminate the information*  If you think of other ways
in which we can help, pl*aa* contact T*rry Groaan of the Land
Dispoaal FAT (PT8 382-4740).

Attachments

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                              - 3 -
ce:   Hlnatoo Porter
     MarcU villlaM
     Gene Lucero
     Henry Long«at
     Jack L*h««n
     Perait Section Chi«f«,  Regions I-X
     RPA Contact*, Region* I-X
     Sue Moraland, ASTSWMO
     Ken Shuater
     Matt Rale
     Terry Groqan
     Dave Paqan
     Art Day
     Don Sanninq, ORD

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                                          9502.1986(20)
    DEC   81986


MEMORANDUM

SUBJECT:  The Department of Defense Installation
          Restoration Program

FPOM:     Marcla E. Williams, Director ry
          Office of Solid Wait*       //

TO:       Waste Management Division Directors
          Regions I - X


     This memorandum discusses RCRA permits at facilities owned
or operated by the Department of Defense (DOD).  DOD has developed
the Installation Restoration Program (IRP) to identify and clean
up hazardous waste sites.  Under the IRP. DOD prepares studies
and generates data that can aaaist EPA in drafting BCRA permits.

     The IRP is carried out In stages that are comparable to the
stages of a cleanup required by RCRA.  Phase I of the IRP is
intended to identify waste sites and is comparable to a RCRA
Facility Assessment.  A Phase I report should identify most, if
not all. of the aolid waste management units at a DOD facility.
Phase II of the IRP characterizes the nature and extent of con-
tamination at a aite or unit.  Phase II usually provides site
characterization infornalton and Monitoring data and is comparable
to a RCRA Facility Investigation.  Phase III of the IRP is an R&D
phaae that is used where a site cannot be controlled with proven
technology or where a site is suitable for evaluating new tech-
nologies.  Although the permitting process has no R&D stage,
Phase III of the IRP can be helpful in identifying new or unique
corrective Measures.  Phase IV of the IRP develops and implements
a reaedial action plan.  Phaae IV ia comparable to identifying
and implementing corrective measures under RCRA.

     EPA haa placed a high priority on RCRA compliance at Federal
facilities.  The work performed under the IRP will provide you
with much of the Information you need to prepare a permit, and
I urge you to incoporate the IRP process into the permit develop-
ment process.  This means that you need to work with the DOD
installation In reviewing the results of each phase of the IRP
process and when neceasary. expand the scope of the IRP to include
all solid waste management unite at the fjtciliev.

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                              - 2 -
     Please keep in mind that we are developing a rule that will
recognize priorities for corrective action at Federal facilities.
After ve promulgate the rule we will incorporate a facility's
priority into the achedule of compliance under I3004(u) of RCRA.
Until we prepare a final rule, peraits should recognise that DOD
can not address releases fron every solid waste sianagenent unit
at every facility simultaneously.

     In sun, I urge you to use the IRP process when you ioplenent
the RCKA corrective action authorities under I3004(u).  Thank you
for your attention to this matter.

cc:  RCRA Branch Chiefs
     Regions I - X

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                                                                       1987(01
             RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                              JANUARY 87
3.   Corrective Action -
    Acontainer storage facility  subject to interim status (RCRA
    Section 3005 (e)) has two  solid waste management units (SWMUs) on
    site.   If the  facility was closed before receiving a full ?ar- 3

          s-SS!  ^of?f?^Ce interim 3tatUS rorrective action measures
          Section  3008a(h)) against the facility to clean up the SVvML's?
         The authority to enforce corrective action measures at an
         interim status facility is not necessarily tied to closure
         at hazardous waste management units at the facility in question,
         Facilities with closed units may remain in interim status.
         Furthermore, once a facility has obtained interim status,  it  is
        potentially subject to an enforcement action pursuant to
         section 3008 (h).

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                                                    9502.1987(03)
March 6, 1987

Gary D. Vest, Deputy
  for Environment, Safety, and Occupational Health
Deputy Assistant Secretary of the Air Force
  (Installations, Environment, and Safety)
Department of the Air Force
Washington, D.C.  20330-1000

Dear Mr. Vest:

     Thank you for your letter of December 24, 1986 concerning
the inventory of Federal facilities compiled pursuant to Section
3016 of the Resource Conservation and Recovery Act (RCRA).  We
appreciate your efforts in submitting a timely inventory to EPA
and we look forward to working with you when we prepare for the
next inventory that is due January 31, 1988.

     In your letter you raised several concerns about the
inventory.  One concern is the need for more time to complete the
next inventory.  We agree that Federal agencies need more time to
compile their inventories, and we intend to distribute the
guestionnaires for the 1988 inventory well in advance of the
January 31 deadline.  Our target date for distributing the 1988
inventory questionnaires is June 1987.  This date will give you
six months to complete your next inventory.

     Another concern in your letter is the need for more accurate
instructions.  Please be aware that we are revising both the
questionnaire and the instructions.  When we have prepared drafts
of these documents we will distribute them to the Federal
agencies for comment.  The drafts will be distributed through
EPA's Federal Roundtable which meets monthly and is sponsored by
EPA's Office of Federal Activities.  Your representative on the
Federal Roundtable will receive the draft questionnaire and
instructions for comment.

     Your letter also asked about the applicability of RCRA to
releases that are being investigated under CERCLA.  Before Congress
amended RCRA in 1984, RCRA's corrective action authorities applied
only to landfills, surface impoundments, waste piles, and land
treatment areas that received hazardous waste after January 26, 1983,
However, the 1984 amendments greatly expanded EPA's authority under
RCRA to include past hazardous waste management practices at RCRA
        This has been retyped from the original document.

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                                 -2-

facilities.  Section 3004(u) of RCRA states that every RCRA permit
issued after November 8, 1984 shall require "... corrective action
for all releases of hazardous waste or constituents from any solid
waste management unit . . .  regardless of the time at which waste
was placed in such unit" (emphasis added).  Therefore, RCRA permits
must address corrective action for releases from any inactive, closed
inactive, closed or abandoned units at the facility.  For those Air
Force installations that must obtain a RCRA permit it is likely that
the IRP sites at the installation qualify as solid waste management
units and must, therefore, be addressed in a RCRA permit.  Under
RCRA's corrective action authorities.

     Many of your IRP sites that are subject to RCRA's corrective
action authorities are also subject to CERCLA, as amended by the
Superfund Amendments and Reauthorization Act of 1986 (SARA).  Section
120 of SARA requires EPA to ensure that a preliminary assessment (PA)
is performed before April 1988 for every site identified in the
"Federal Agency Hazardous Waste Compliance Docket."  Where the PA
indicates that the site should be evaluated under EPA's Hazard
Ranking System (HRS), EPA has until April 1989 to finish listing the
site on the National Priorities List (NPL).  Within six months after
a site is placed on the NPL the Federal owner/operator must begin a
remedial investigation/feasibility study (RI/FS).  The statute
further provides that EPA and the appropriate State shall publish a
timetable for the "expeditious completion" of the RI/FS.  Within 180
days of the completion of the RI/FS, EPA and the Federal owner/
operator must enter into an interagency agreement (IAG) for the
"expeditious completion" of all necessary remedial actions.

     For those IRP sites that are subject to both RCRA and CERCLA,
the requirements of both programs must be satisfied in full.
However, it is possible that the work performed under one program
would satisfy the requirements of the other program.  Although EPA
has not fully developed guidelines for implementing both programs at
a single facility, EPA will employ the authority or combination of
authorities that best resolve the waste management issues at your
installations.

     The decision as to which program or programs will be used at
your installations should have little or no impact on the ability of
the IR program to clean up your hazardous waste sites.  The cleanup
standards for RCRA and CERCLA are, except for minor exceptions, the
same.  The procedures for cleaning up waste sites under RCRA are
comparable to the procedures under CERCLA.  Furthermore, given the
expanded role for States under SARA, the degree of State involvement
in both programs is similar.  As EPA progresses in developing rules
and guidances for the RCRA Corrective Action Program,  we are striving
to assure consistency between RCRA and CERCLA.
        This has been retyped from the original document.

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                                 -3-

     This letter provides only a brief summary of how RCRA and CERCLA
may be implemented at your installations.  However, we are preparing
a guidance document that describes these issues in greater detail,
and we will distribute this document when completed.

     The final question in your letter concerns our list of potential
RCRA violators.  We compiled this list of facilities from information
submitted to us as part of the inventory.  We placed a facility on
the list if the inventory indicated that it operated a RCRA unit, but
had not submitted a Part A application, a Part B Application, or a
closure plan.

     As you requested, we examined your inventory responses for the
12 Air Force sites on our list of potential RCRA violators.  The
following explanation accounts for each site:

     •    The two sites at Wright-Patterson AFB, Zone 4 and
          Zone 5, are on the list because the inventory
          indicated that the installation has an operating
          waste pile, but had not submitted a Part A
          application.

          We placed the Municipal Airport for the Arkansas
          National Guard on the list because the inventory
          indicated that the airport operates storage and
          treatment tanks but had not submitted a Part A
          application.

          The underground tank at Vance AFB is on the list
          because the inventory indicated that the tank is
          an operating storage tank but had not submitted a
          Part A application.

          We placed three sites at Dover AFB on the list
          because the inventory indicated that each site
          has an operating RCRA unit, but had not submitted
          a Part A application.

          Finally, there are four sites which we have
          determined should not be on the list of potential
          RCRA violators.  The four sites are "Building 219
          [   ]" and "Landfill 1" at Griffiss AFB, the
          "Site D-4 Landfill" at Kelly AFB, and the DRMO
          Storage facility at Plattsburgh AFB.  The
          questionnaires for these sites were filled out
          correctly.  However, when we entered the
          information from the questionnaires into our
          database, we mistakenly indicated that these
        This has been retyped from the original document.

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                                 -4-

          sites had operating RCRA units which had not
          submitted the required information.  We will
          forward this information to the appropriate EPA
          Regional Office.

     Again, thank you for your letter concerning the Federal
Facilities Inventory.  We urge the Air Force to participate in the
process of revising the inventory questionnaire and instructions.  We
hope that through our mutual efforts and cooperation we are able to
produce a thorough and accurate inventory of Federal facilities.  For
more information about the inventory, please contact Paul Connor, at
475-7066.

                              Sincerely yours,
                              Marcia E. Williams
                              Director
                              Office of Solid Waste
                              Gene A. Lucero
                              Director
                              Office of Waste Programs Enforcement
cc:  Lee Berwig, OPA
        This has been retyped from the original document.

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                n cu ii A i ci coMKUNMtNTAL PROTECTION AGENCY
••L:;.CP.VTr.-!
: •.'i.J.-.CT :   Irtcri:.  Tir.al  i'CnA  "cr rect i\.c.  Acticr. k-Iar  (C/-.?'}

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           Cfrice  of -.i^iid  .-aftt.

7C:        James H. Scari;rcuch, chief
           Pesicuals Management branch, Pegion  IV


     In your January  20, 1987, neno to me, you expressed various
concerna about the contents and  uae of the CAP,  including the
application of protection  atandarda.

     I agree that we  need  comprehensive  guidance  to  implement the
RCRA corrective action program.  The  Office  of Solid Waste recently
completed  the option! selection  process  for  $3004(u) corrective
action, which reaolved several outstanding issues necessary for
development of regulationa.   Zn  the next  aeveral  months,  we will
be issuing guidance to  implement these decisions.  Such guidance
will addreaa the  four key  iaaues identified  in your  memorandum,
with special emphasis on setting clean-up target  levels for all
media.  The CAP and the  RFX Guidance  will be revised accordingly
to reflect the reaolution  of  these  issues and  field  experience
in uaing these documents.  The next draft of the  RFI Guidance,
which will b« distributed  for Agency  comment in April 1987,  will
address these issues  in  a  new section on  RCRA  Health and
Environmental Assessments.

     Your  memorandum  also  addresses whether  the RCRA guidance
ahould reference  the  Superfund Public Health Evaluation Manual
(SPHEM).   We have examined this  document  and believe that it
contains a goo<4 deal  of  useful information for evaluating impacts
to public health.  We are  using  the SPHEM in developing the RJZ
Guidance section  on performing RCRA Health and Environmental
Assessments.  The SPHIM will  serve  as a useful technical reference
for the RCRA corrective action program.   For instance,  the SPHEM
provides detailed guidance on how to  aaaess  health impacts at
known points of exposure.  However/ the  elements  of  the SPHEM that
rteal with  determining the  location  of potential exposure points
addreas an issue  that has  not yet been fully resolved for RCRA

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                              - 2 -
 corrective action.  As you know, corrective action decisions may
 be  based on the presumption that potential exposure can occur
 anywhere up to the waste management unit.  In addition, the SPriEh
 directs the use of maximum contaminant levels (MCLs) when determi-
 ning  human health impacts.  The use of MCLs versus other
 health-based standards (e.g., reference doses) has not yet been
 resolved in the RCRA corrective action rule development process.

     You also expressed concern over the technical framework of the
CAP,  including corrective measure alternative selection and labora-
tory and bench scale studies.  Z believe that the CAP provides the
flexibility to alleviate these concerns.  The existing technical
framework of the CAP affords a flexible approach to determining the
number of corrective measure alternatives after the need for correc-
tive measures has been established.  That is, the number (i.e., one
or more) of alternatives to be submitted by a RCRA facility can be
determined by the Regional Office on a facility-specific basis (see
CAP, page 4).  This approach on alternative selection was clarified
on February 3, 1987, at a meeting between OSW staff and several of
your staff in Atlanta.

     The CAP also affords flexibility in the application of
laboratory and bench scale studies.  As stated on page 2 of the
CAP, the scopes of work in the CAP are examples and could be
modified,  enhanced, or sections deleted based on site-specific
situations.  Therefore, at your discretion, laboratory and bench
scale studies may not be required for a specific facility or such
studies may be shifted to the Corrective Measures Study part of
the corrective action process.  Overall, the CAP should serve as
a reference for Regional Offices to prepare permit and enforcement
order conditions,  not as a prescription to b« followed in every
case.

     If you or your staff wish to discuss the above matters further,
please contact Art Day (382-4658) or George Oixon (382-4494) of the
Land Disposal Branch or Matt Hale, Chief of the Permits Branch
(382-4740).

cc:   Gene Lucero
     Joe Carra
     Bob Tonetti
     Matt Hale
     Art Day
     Dave Fagan
     George Dixon
     George Faison

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                                                        9502.1987(05)
April 2, 1987


MEMORANDUM


SUBJECT:  Interpretations of RCRA Applicability to Releases of
          Hazardous Waste

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

          Gene A. Lucero, Director
          Office of Waste Programs Enforcement (WH-527)

TO:       Kenneth D. Feigner, Chief
          Waste Management Branch, Region X

     This memorandum responds to your memoranda of December 25, 1986
and January 20, 1987, in which you raised several issues regarding
applicability of RCRA corrective action authorities, and the
implications of termination of interim status by authorized States in
regard to implementing §3004(u) corrective action.

     The first general concern which you raised relates to the
applicability of RCRA to releases from less-than-90-day accumulation
units.  The Hotline report that you cited and which stated that such
releases "are not generally covered by RCRA regulations," requires
clarification.  It is clearly possible to address releases from less-
than-90-day accumulation units by using the imminent and substantial
endangerment authorities of RCRA §7003 or CERCLA §106.  The
alternative theory which you suggest presents a number of policy and
legal issues which we believe merit further consideration.

     The other concern which you raised in your 12/29/86 memorandum
dealt with the applicability of §3004(u) to facilities which are
closing but which are not subject to post-closure permits.  You
assert that §3004(u) could be applicable to closing interim status
facilities which are not subject to post-closure permits.  This
interpretation is based on the fact that certification of closure
does not terminate interim status in the absence of a final
administrative disposition.  You suggest that until a permit is
denied, or interim status is otherwise terminated, the facility
remains "subject" to a permit and is, therefore,  subject to §3004(u).
        This has been retyped from the original document.

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                                 -2-

There are several legal limitations to this approach, and the Agency
has no plans at this time to develop requirements such as those you
have suggested.

     If closure for the entire facility has been certified and is, in
fact, in compliance with 40 CFR Part 265 and no post-closure permit
is required, there should be no wastes or units at the facility which
would be subject to a RCRA permit.  If the same facility later wishes
to resume operation, the Region may request a Part B, thereby
bringing the facility into the universe subject to §3004(u)
requirements.  Absent such actions, however, §3004(u) does not apply.
Agency interpretation of the applicability of §3004(u) has
consistently been limited to facilities seeking a permit.

     While §3004(u) could be construed to mean that corrective action
can be required either by promulgation of standards or by issuing
permits, Agency interpretation, as supported by the legislative
history, has consistently been that any standards promulgated under
this Section will be standards for facilities in the process of being
permitted.  Although the corrective action standards will not be
applicable as self-implementing interim status (Part .265)  standards,
we anticipate that they will generally be applied in §3008(h)
actions.  As discussed at the Branch Chiefs' meeting in January,  we
intend to include language to this effect in the preamble to the
regulation to be proposed in the Fall of 1987.

     As summarized in your 1/20/87 memorandum, there was some
discussion during the RCRA Branch Chiefs' meeting of whether EPA
could act to "preserve" interim status at a facility which is denied
a permit by an authorized state.  The discussion suggested that such
an action might be desirable for the purpose of implementing §3004(u)
corrective action, if necessary, at such facilities.

     An authorized state's denial of a base program permit is a final
administrative disposition of the permit application.  A facility's
authorization to operate pursuant to interim status terminates upon
such denial (see §3005(e)(1)(C)).  Interim status is granted by
statute and cannot be "preserved" by EPA.  It will not,  therefore, be
possible to extend interim status after a permit has been denied for
the purpose of imposing corrective action requirements.   The Agency
has taken the position,  however, that §3008(h) will still apply since
the facility previously had interim status.

     We understand that the Regions were reluctant to exercise
§3008(h) authorities in the absence of administrative hearing
procedures.  Since guidance on the hearing procedures has been signed
by the Assistant Administrator for Enforcement and Compliance
Monitoring and the Assistant Administrator for Solid Waste and
        This has Jbeen retyped from the original document.

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                                 -3-

Emergency Response and has been distributed, we assume that this is
no longer an issue.

     If you have questions concerning these interpretations, you may
contact Michele Anders (for corrective action and permitting issues)
at 382-4534, or Susan O'Keefe (for enforcement questions) at
475-9313.

cc:  RCRA Branch Chiefs,  Regions I through IX
        This has been retyped from the original document.

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                                                        9502.1987(06)
June 30, 1987

MEMORANDUM


SUBJECT:  RCRA Permits with HSWA Conditions

FROM:     Bruce Weddle, Director
          Permits & State Programs Division (WH-563)

TO:       Sam Becker, Chief
          Hazardous Waste Compliance Branch
          Region VI


     During my recent visit you raised two questions related to the
issuance of RCRA permits with HSWA provisions.  The first issue
concerned the implications of a Region issuing the HSWA provisions of
a permit before the State permit.  The other question pertained to
the status of the HSWA portion of a jointly issued permit if the
State portion is appealed.

     The Agency's policy on the timing of the State and Federal
portions of the permit has been described in detail in a OSWER
memorandum to the Regions by Jack McGraw (July 1, 1985; copy
attached).  EPA's policy is that joint RCRA permits should be issued
simultaneously by EPA and the States.  The memorandum describes
several exceptions to joint permitting that may occur if the State
has already issued the draft or final permit.   However, no
consideration was given to the Region issuing the HSWA conditions
prior to issuance of the State permit.

     Beyond the policy memo noted above,  I believe it is
inappropriate to issue the HSWA portion independent of the rest of
the permit.  First and foremost, a permit is not a complete RCRA
permit unless both the State and Federal portions have been issued.
Therefore, issuing only the Federal portion of the permit would have
no practical impact.  Without a complete RCRA permit, new facilities
cannot begin construction, nor can existing facilities expand beyond
the limits allowed under interim status.   Furthermore, without the
State permit, it is likely that the HSWA corrective action
requirements could not be effectively enforced because §3004(u)
authorities are linked to issuance of the RCRA permit.
        This has been retyped from the original document.

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                                 -2-

     For many facilities, there ma'y also be valid technical reasons
to issue the Federal and State portions simultaneously.  Certain HSWA
requirements may utilize data submitted for the baseline program
permit, e.g., HSWA corrective action conditions may require a variety
of data submitted by the facility for the State permit.  For example,
any corrective action for contaminated ground water required for
regulated units under Subpart F could directly impact ground-water
investigations required for SWMUs under HSWA.

     I also foresee a potential problem arising in public perception
if the Federal portion is issued before the State permit.  This may
lead the public to expect that corrective action investigations and
clean-up activities will be initiated, even though such conditions
could not be properly enforced as noted above.  More generally, the
public may be confused by the separation of corrective action
activities and the operating permit.  Therefore,  public participation
efforts would be more effective if the State and Federal portions are
issued together.

     Your other question pertained to the impact on the HSWA
conditions of a complete RCRA permit if the State portion alone is
appealed.  If a request for review of a RCRA permit is granted all
contested permit conditions will be stayed,  including any uncontested
conditions which are not severable from the conditions in dispute.
Therefore, whether or not the HSWA conditions would be stayed depends
on whether they could be properly implemented without the contested
conditions in the State permit.  In many cases,  HSWA conditions will
be severable from contested portions of the State permit.  Corrective
action requirements to investigate releases from SWMUs, for example,
could presumably begin while unrelated portions of the State permit
are stayed.

     I hope I have answered your questions.   If I can be of any
further assistance, please let me know.

Attachment

cc:  Bill Honker, Region VI
     Suzanne Rudzinski
     Matt Hale
     Bob Kaysor
     Dave Fagan
     Frank McAlister
     Carrie Wehling
        This has been retyped from the original document

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                                                        9502.1987(07)
July 24, 1987
MEMORANDUM
SUBJECT:  Definition of Solid Waste Management Unit for the
          Purpose of Corrective Action Under Section
          3004(u)

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

TO:       Hazardous Waste Division Directors, Regions I-X


     The purpose of this memorandum is to provide clarification
regarding one aspect of the definition of solid waste management unit
as related to RCRA corrective action under Section 3004(u).  The
concept of a solid waste management unit has been explained in
various guidances since the passage of the 1984 Hazardous and Solid
Waste Amendments (HSWA).

     As explained in the July 15, 1985 HSWA Codification Rule, a
solid waste management unit is "...any unit at a facility from which
hazardous constituents might migrate,  irrespective of whether the
units were intended for the management of solid and/or hazardous
wastes."  This definition was intended to include those types of
units which have traditionally been subject to regulatory control
under RCRA:  container storage areas,  tanks, surface impoundments,
waste piles, land treatment units, landfills, incinerators,
underground injection wells and other physical, chemical and
biological treatment units.

     A memorandum from John Skinner to the Hazardous Waste Division
Directors (June 14, 1986)  further interpreted the term solid waste
management unit to include areas at facilities which have become
contaminated by routine, systematic and deliberate releases of
hazardous waste or hazardous constituents.  An example of this type
of "solid waste management unit" is a wood preservative "kickback"
area, where drippage of preservative fluids onto soils from pressure-
treated wood is allowed to occur over time.  This interpretation was
reiterated in the final RCRA Facility Assessment Guidance and the
National HSWA Corrective Action Strategy of October 14,  1986.
        This has been retyped from the original document.

-------
                                 -2-

     Recently, however, several Regions have inquired whether the
term "deliberate" meant that the owner/operator had actually intended
to create the release of hazardous wastes or hazardous constituents.
We wish to clarify that the term "deliberate" in this context was not
meant to require a showing that the owner/operator knowingly caused a
release of hazardous wastes or hazardous constituents.  Rather, the
term "deliberate" was included to indicate the Agency's intention not
to exercise its Section 3004(u) authority to proceed against one-
time, accidental spills which cannot be linked to a discernible solid
waste management unit.  An example of this type of release would be
an accidental spill from a truck at a RCRA facility.  Routine and
systematic releases constitute, in effect, management of wastes; the
area at which this activity has taken place can thus reasonably be
considered a solid waste management unit.  Therefore, in implementing
corrective action under Section 3004(u), Regions and States should
consider areas which have become contaminated through routine and
systematic releases of hazardous wastes or hazardous constituents to
be solid waste management units.  It is not necessary to establish
that such releases were deliberate in nature.

     This concept, and other issues relating to the definition of
solid waste management unit, will be addressed in the proposed
rulemaking being developed for corrective action under Section
3004(u).

     If you have any questions regarding this interpretation of solid
waste management unit, please contact David Fagan at FTS 382-4497.

cc:  Regional RCRA Branch Chiefs
     Regional RCRA Permit Section Chiefs
     Gene Lucero
     Bruce Weddle
     Joe Carra
     Mark Greenwood
        This has been retyped from the original document.

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                                                        9502.1987(08)
August 11, 1987

MEMORANDUM


SUBJECT:  SWMU Corrective Action RIA Facility Data Base

FROM:     Betsy Tarn
          Economic Analysis Staff (WH-565)

TO:       See Attached List


     The purpose of this memo is to present a summary of the SWMU CA
RIA facility data base.  The purpose of this data base is to
represent the range of types of facilities with newly regulated
SWMUs.  Based on the facility characteristics in this data base we
will estimate a range of risks and costs for five regulatory *
scenarios.  These regulatory scenarios vary by timing and extent of
corrective action reguired.

     We developed this data base by collecting RFA data for a sample
of 65 RCRA facilities from the population of facilities with RFAs
recommending RFIs.  We randomly selected a stratified sample to
represent the appropriate proportions of land disposal, storage and
treatment, and incinerator facilities in the population.  As a
result, the data base includes 21 land disposal facilities, 41
treatment and storage facilities, and three incineration facilities.
These 65 facilities have a total of 893 SWMUs.

     In many cases the RFAs did not provide adeguately detailed
descriptive information.  Such inadequate information included waste
type, unit sizes, and hydrogeologic settings.  This information is
essential for estimating potential risks and comparing the
effectiveness of alternative regulatory scenarios.  Therefore, we
used best professional judgment to develop reasonable assumptions for
the missing data from available information, such as the DRASTIC
system for hydrogeologic settings.  As a result, although the 65
facilities are based on much actual RFA data, we consider these
facilities as hypothetical because of the assumptions we had to make
to fill in the data gaps.

     Exhibit 1 displays the number of SWMUs per facility.  Within our
sample of facilities, the minimum number of SWMUs per facility is one
        This has been retyped from the original document.

-------
                                 -2-

and the maximum number of SWMUs per facility is 42.  The number of
SWMUs per facility includes both Subtitle C regulated units and newly
regulated units.

     Exhibit 2 presents the distribution of SWMUs by type of SWMU and
by type of facility.  This exhibit indicates an average of 14 SWMUs
per facility, with about half of the units already Subtitle C
regulated and the other half newly regulated SWMUs.  Exhibit 2
indicates that Federal Facilities tend to have larger numbers of
SWMUs per facility than other TSDFs.  Exhibit 2 also indicates that
land disposal, incinerator, and Federal Facilities tend to have
slightly more newly regulated SWMUs than Subtitle C units.  This
exhibit indicates that storage and treatment facilities tend to have
similar numbers of newly regulated SWMUs and Subtitle C regulated
units.  Finally, this exhibit indicates that the average and median
numbers of SWMUs per facility are similar, which suggests that there
are not extreme outliers biasing these descriptive statistics.

     Exhibit 3 provides the average number of SWMUs per facility by
type of SWMU.  This exhibit indicates that the average number of each
unit type at a facility is between one and six, with tanks being the
most frequent unit type on average.  Exhibit 3 also provides the
percentage of facilities with each SWMU type.  The exhibit indicates
that facilities with newly regulated tanks or landfills are most
frequent.  Finally, the exhibit indicates that facilities with
Subtitle C tanks or containers are most frequent.

     Exhibit 4 lists the nine most frequent waste streams associated
with the facilities in the data base.  The RFA data did not always
provide adequate waste stream data.  Therefore, based on the facility
processes or other unit waste streams reported in the RFAs,  we
assigned appropriate waste streams based on best professional
judgement.  Exhibit 4 indicates that the nine listed waste streams
account for almost 42% of all of the SWMUs.  About 14% of the units
are associated with non-hazardous wastes or,  in a few cases,
inadequate information was available to determine an appropriate
waste stream.  Exhibit 5 is a summary of all waste streams associated
with the 893 units in the data base.  These waste streams have been
combined in more general groups compared to the waste streams listed
in Exhibit 4.  Exhibit 5 indicates that spent solvents constitute the
most frequent waste stream category at 21% of the units.

     Exhibit 6 presents the distribution of the facilities across
DRASTIC hydrogeologic settings.  DRASTIC is a system developed by the
National Water Well Association in 1984.  The DRASTIC system divides
the United States into hydrogeologic settings and provides generally
recognized values for Depth to ground water,  net Recharge,  Aquifer
media, Soil types, Topology,  Impact zone,  Conductivity,  and other
        This has been retyped from the original document.

-------
                                 -3-

input parameters within each hydrogeologic setting.  Exhibit 7
provides a more detailed description of the DRASTIC hydrogeologic
settings in terms of some of the few key parameters.

     In addition to these summary statistics describing our facility
data base, I have a listing of each of the 65 hypothetical
facilities.  This listing describes each facility in terms of the
following:

          type of facility;
          numbers and types of units;
          DRASTIC setting and descriptive hydrogeologic setting
          components;
          nearest downgradient water well;
          ground water velocities;
     -    regulatory status of units;
          waste stream types;
          waste throughput or capacities of units;
          year units open and close; and
          year waste is removed.

     Please review this summary information and let me know if you
would also like to review a listing of each of the 65 facilities.  If
you believe there are types of facilities not adequately represented
by our data base, I would appreciate your suggestions.  I can be
reached at 202/382-3403 to discuss questions and comments.
        This has been retyped from the original document.

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                                                         9502.1987(09)
      SEP  87
 EMCRANDDK

     CT:  Fiber Optics  for  In-Situ Monitoring

FROMi     ttarcia Williams,  Director      X3X
          Office of Solid Waste  (WH-562) '

TOi       Erich Bretthauer,  Director
          tjivironmental Monitoring Systems  Laboratory/Las Vegas

     Thank you for the  report you provided  recently, describing
and providing the status of fiber optics applications  for in-situ
monitoring.  While we nave  recently had to  make  some difficult
short-term priority choices, this subject remains.of substantive
interest to us in OSW as a  Beans of field monitoring at waste
management facilities.                   	

     There are several  potential applications  for developing and
improving advanced field monitoring techniques.  Cur future
efforts in OSW are directed toward a continuum of control, based
upon waste-specific/site-specific interactions.  Ash monofills (a
single, consistent waste at a site) are a cogent example, one for
which a near-term solution  is needed.  In this particular
application, the contaminating constituents are, generally, lead
and cadmium.  Simplified detection of releases of constituents
such as these would perhaps enable us to define corrective action
before significant contamination problems occur.

     Another application of interest to us  is  in biotechnology,
where the sensor might be deployed to detect degradation products
of the bio process* or to detect "toxic" conditions prior to
undertaking in situ treatment.  Other potential applications
include the use of fiber optic sensors for detecting air emissions
(e.g.* from land treatment  areas) or serving as a monitor in
geologic repositories (e.g., an air sniffer in a salt done).

     With our ever-increasing need for field monitoring at
hazardous waste sites, fiber optics technology does show promise.
We would like to see one (or more) of our applications become
part of your fiber optics research program.

ccs  Tom Devine
     Herbert Dee
     Keg Kelly
     John Skinner
     Darwin Wright

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                                                       9502.1987(11)
  'DEC  21 I9S7


MEMORANDUM

SUBJECT:  Options foe Voluntary corrective Action
PROM:     Parcia Will Una
          Dirtctor
          Office of Solid Waste

TO-       Directors
          waste Kanageeent Divisions, Regions Z-X

    Kany unpermitted hasardous waste generators and other
industrial property owners are likely to have solid waste
Eanagewent units on their property that require some degree
of corrective action.  In a nuwber of cases, the facility
owners may wish to proceed with corrective action, either
to reduce their liability or to forestall subsequent EPA
or state action.  Under current RCRA regulations., however ,
certain activities conducted during voluntary correction
action will require a permit if the waates are hazardous
waste (i.e., they are known tc include listed hazardous
wastes or they are determined to be hazardous under 40 CPR
261 subpart C).  This could Include relatively straight
forward activities, such as dewatering wastes or treating
grcundwater, as well as core complicated treatment
technologies such as incineration.

    we are concerned that the tin* needed to obtain a
permit stay in sone cases substantially delay desirable
cleanup and provide a significant disincentive to
generators and other facility owners considering voluntary
corrective action.  I an interested in identifying approaches
that would allow certain relatively low concern treatment
activities to b« conducted durincr corrective action without
a full RCRA permit.  He have identified several possible
a op roaches that might be used to allow voluntary corrective
action at unperpitted sites.  These approaches are outlined
in the attachment.

    Options 1-3 are possible now, without any regulatory or
statutory changes,  with regard to these options, I an
specifically interested in the potential benefits and
obstacles you see to each of the approaches.  Are generators
or others likely to avail themselves of these? *avt you used
any of these approaches with parties seeking to do voluntary
corrective action?

-------
                             -2-

    Ortion 4 would require a rule chanoe.  In our ere]i^in-T
discussions with the Office of General Counsel, they have
indicated th*t they see potential legal problems to this
approach.  Nevertheless, I believe that it may be worth
further investigating this option to see if a leqally
defensible approach can be developed.  With regard to
this option, I'w specifically interested in your thoughts
on the types of treatment activities that may be appropriate
for conditional exemptions fron permitting.

    I see this issue of voluntary corrective action as
beino very important to our program.  I appreciate you
taking the time to consider this issue and I look forward
to your reactions.

Attachment

-------
             UNITED STATES ENVIRONMENTAL PtOTECTION AGENCY
                                                       9502.1988(01)
  AUG 23
MEMORANDUM

SUBJECT:  OECM Conunents on Corrective Action Rule

FROM:     Syva K. Lowrance, Director   -       *
TO:
Sylvia K. Lowrance, Director
Office of Solid Waste
Edward Reich
Deputy Associate Enforcement Counsel
     Last week when we met to discuss your Office's non-
concurrence issues on the RCRA corrective action  rule we  reached
tentative agreement as to how those issues would  be resolved.
This memorandum summarizes my understanding of the agreements  we
reached.

     Issue l.  CAMU.  The idea of including discernible units
within a CAMU will not be explicitly proposed in  the rule, but
will be discussed in the preamble.  The preamble  will also
discuss optional approaches, as per the suggested preamble
language in your August 9 memorandum.

     Issue 2.  Temporary Units.  Temporary units  will be  limited
to managing wastes that originate within the boundary of  the
facility, similar to the concept contained in the "Christmas
Tree1* rule (see attached excerpt from that rule).  We will also
develop additional preamble language explaining the legal
rationale behind temporary units, emphasizing how notice  and
comment on such units is provided through the permit/order
procedures.  Additional clarifying language describing how the
land disposal restrictions apply to land-based temporary  units
will, also be developed.

     Issue 3.  Point of Departure.  We will add rule language  on
10~6 as the point of departure in setting cleanup levels.  The
language 1st essentially the same as the language  in the NCP  (see
attached rule language).

     Issue 4.  Target Levels.  The preamble discussion which
explains the circumstances in which it will not be necessary to
specify preliminary target levels will be expanded to include
additional clarifying examples.
                                                    understanding
                                              •i«tent-|with--howf-the

-------
media aggregate risk would be a factor in establishing cleanup
levels and triggering corrective measure studies.  This
discussion will essentially reiterate the NCP language; i.e.,
that cross media analyses will" be done when there are indications
that site-specific exposure conditions warrant such analyses.

     Issue 6.  Protectiveness.  As we discussed, the approach
articulated in the rule for setting cleanup standards within the
risk range, which allows flexibility to consider several factors
in selecting the appropriate level, is a fundamental concept in
both the RCRA and CERCLA programs.  You indicated that this would
not be a non-concurrence issue for OECM.

     If you have any questions concerning the above, please let
me know.  I will be in touch with you later this week, to confirm
that this summary of our meeting is accurate, and to discuss how
th move the rule forward to OMB.


cc:  B. Weddle (OSW)
     M. Hale (OSW)
     D. Pagan (OSW)
     B. Grimm (OSWER)
     S. Leifer (OECM)
     J. Cannon (OECM)

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                                                9502.1988(02)      g


                                                                   8
     8 :9S£
Mr. Kenneth M. Kastner
Assistant General Counsel
Chemical Manufacturers Association
2501 M Street, N.W.
Washington, D.C.  20037
     I am writing in response to your letter of January 7,
1988, in which you outlined the concerns on the Chemical
Manufacturers Assocation (CMA) regarding constraints on
voluntary corrective action, and offered several ideas as to
how the RCRA program could be adapted to facilitate voluntary
cleanups.

     We share your concern that the current RCRA regulatory
structure provides a disincentive to voluntary cleanup, and we
appreciate your recommendations on this question.  We are
currently exploring possible solutions to the issue through a
number of avenues, including EPA-sponsored corrective action
roundtables, in which your organization has been participating,
and the Keystone RCRA Project, which has identified voluntary
corrective action as a specific area of concern.  I trust that
out of these efforts we and other interested groups can agree
on a series of regulatory and, if necessary, statutory changes
that will remove impediments to voluntary cleanups, and at the
same time ensure adequate protection of human health and the
environment.

     In your letter, you suggested two specific areas for
possible regulatory change — permitting and the definition of
hazardous waste.  In the case of the first, you suggested a
RCRA permit waiver for voluntary cleanups, contingent upon
compliance with certain reporting, handling, design, and
operation standards similar to the standards currently found in
40 CFR Part 264.  As you may know, EPA discussed a similar
approach in its June 3, 1987 proposal on mobile treatment units
(52 FR 20914).  We believe that this approach deserves
particular consideration for voluntary corrective action, and
we expect to explore it in more detail through the Keystone
RCRA project.
                                                                   ft K
                                                                   H- *
                                                                   cb co
                                                                   c ••
Dear Mr. Kastner:                                                  ° •§•
                                                                    r-

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                               -2-
     You also suggested that EPA not define as "hazardous" any
wastes subject to voluntary corrective action.  We agree that
treating cleanup wastes as hazardous wastes may not always be
the most effective way of managing some of these wastes
—particularly soils and groundwater with low levels of
contamination.  Consequently, we are examining the current
regulatory status of contaminated soils and groundwater to
ascertain whether other approaches to these wastes can assure
protection of human health and the environment.   As a result of
this review we expect to reach a decision on whether regulatory
changes are necessary.

     We recognize that the issues you raise require prompt
resolution, and the Agency is committed to addressing them
expeditiously.  As you realize, however, your specific
recommendations and more generally the issue of voluntary
corrective action raise substantial technical, policy, and
legal issues.  We hope over the next several months to work
with you and other interested groups to resolve these, issues
and develop an overall strategy for encouraging voluntary
cleanups.  We look forward to your continued participation in
this process.

                                 Sincerely,
                                 Jeffrey D. Denit
                                 Acting Director
                                 Office of Solid Waste

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                                                   9502.1989(01)

            UNITI0 STATES UWgONMiMTM. PROTECTION ACINCY
                         MA:-
Angus Macbeth, Esq.
Sidley  and Austin
1722 Eye  Street, N.w.
Washington, D.C. 20006
     Re:  Financial Assurance for Corrective Action Beyond the
          Facility Boundary

Dear Mr. Macbeth:

     This is  in  response to your January 5, 1989 letter
concerning current regulations  requiring financial assurance for
corrective action beyond facility boundaries.  Sections
3004(a)(6) and 3004(v) of RCRA, as amended by the Hazardous and
Solid Waste Amendments of 1984  (HSWA), codified at 40 c.F.R.
264.100(6) and 264.10KC), require that corrective action be -
instituted beyond the facility  boundary where necessary and that
:.j-;urances of financial responsibility for such corrective
        be provided.
     As discussed in the December l ,  1987 second HSWA
:~'J. . rication rule (52 F.R.  45788), Congress intended that owners
 ...;! operators of hazardous  waste management facilities provide
-ir.ancial assurances for corrective action beyond the facility
property boundary.  The Agency does not believe that this
requirement duplicates other  financial assurance requirements
such as the third-party liability coverage requirements.   (40
CFR 264/265.147).  Under 40 CFR 264/265.147 an owner or operator
must maintain specific types  and levels of coverage for bodily
injury and property damage  to third-parties.  Sections
264.141(g) and 265.141(g) provide that the terms  "property
damage* or "bodily injury"  have the meaning given such terms
under applicable state law.   Additionally, these terms do  not
include those liabilities which, consistent with standard
industry practices, are excluded from coverage  in liability
policies for bodily injury  and property damage.   (40 CFR
264/265. 141(g».

     In general we believe  that it  is both appropriate and
lilcely that onsite or off-site corrective action activities  win
exceed the common definition  and construction of  "bodily  injury"
or "property damage" as found in an  insurance policy  issued  to

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                               -2-


 satisfy RCRA third-party  liability coverage requirements.   The
 Agency is  also concerned  that to allow the use of established
 liability  coverage  financial instruments to satisfy known
 corrective action costs could deplete those instruments,  thereby
 rendering  funds unavailable to satisfy the claims of injured
 third-parties.

    However,  insurance policies can be used to satisfy financial
 responsibility for  off-site corrective action under the current
 regulations  in certain circumstances.  Specifically, if an
 insurance  carrier determines that off-site corrective action
 costs  are  covered under the terms of its policy, and the carrier
 provides unequivocal documentation of a specified payment to
 cover  all  or  a part of off-site corrective action activities,
 then that  policy would satisfy all or part of the required
 financial  assurance for corrective action.

    The above discussion  concerning the use of insurance to
 satisfy off-site corrective action financial assurance
 requirements can be extended, under limited circumstances, to
 the use of other financial assurance instruments for liability
 coverage provided by a third-party, i.e.. letter of credit,
 surety bond, guarantee and trust fund.  Those circumstances
 could  arise only when the off-site corrective action costs are
 part Of a  third-party claim against the owner, operator, or
 holder of  the financial instrum..-nt and that claim has triggered
 payment of the instrument pursuant to 40 CFR 264.151(h), (k),
 (1) and (m).  The owner or operator of a facility subject to the
 financial  assurance requirements cannot itself be considered a
 third-party within  the meaning of applicable regulations and
 instruments.

    Similarly, when an owner or operator uses the financial test
or corporate guarantee to comply with third-party liability
 financial  responsibility  regulations, and a certified settlement
or court judgement  resulting from a third-party claim for
property damage is  coincident with all or part of the cost
estimate prepared for off-site corrective action, a second
mechanism would not have  to be used to cover that portion of the
corrective action cost.   If, in the situation described above,
the owner/operator  wishes to use the financial test or guarantee
to demonstrate compliance with both third-party  liability
requirements and off-site corrective action financial assurance,
the cost estimate to be used in the alternative  formula provided
 in 40 CFR  264.151(g) would be equal to the sum of the
third-party liability requirements and any off-site corrective
action costs not coincident with the valid third-party claim.
The Agency intends  to carefully re-examine the procedures  and
financial  instruments requirements for corrective action  (51
F.R.  37854), to ensure that owners and operators of facilities
are afforded ample  flexibility to meet the requirements  and that
sufficient funds are available to cover all necessary
 liabilities.

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                               -3-
    Finaliy, your letter requests that the issue of  dupiicative
coverage also be examined in the context of the Subtitle  n
rule.   The Agency is considering t^ese issues in the context  of
the subtitle D proposal (August 30,  1988 53 r.R.  33314)  and wif
                                                              '
                                            'his  issue
    Should  you  have any questions  concerning the above matter
                         Schneider (382-469?)  in the omce of
                         (382"7703)  in tne  Office of General


                               Sincerely,
                              J. Winston Porter
                              Assistant Administrator

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                                                        9502.1989(02)
May 25, 1989

MEMORANDUM

SUBJECT:  Comments on the Proposed OERR and OWPE Lead
          Cleanup Policy Memo

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

TO:       Robert Duprey
          Acting Deputy Assistant Administrator


     In response to your question concerning the OERR and OWPE
policies on soil cleanups for lead, I'd like to briefly describe
OSW's approach to setting lead cleanup standards.  The current OSW
interim policy is stated in the Clean Closure guidance (52 FR 8706
3/19/87), the Subpart S Corrective Action draft proposal, and the
RCRA Facilities Investigation guidance  (Draft as of 1/25/89) is to
use background soil levels for lead and any other constituents for
which an Agency recommended health based exposure limit  (RfD, Cancer
Potency Factor) is not available.  We have reiterated this policy to
the Regions and have provided some guidance on how to determine
background levels.

     We recognize that background levels of lead in soil will vary
from location to location.  In some cases, they may be as high as the
Superfund proposed levels of 500-1000 ppm, while in other cases they
are likely to be somewhat lower.  Currently, an Agency Workgroup
chaired by ORD is developing a health-based guidance document for
lead.  The Science Advisory Board is reviewing their efforts.  Once
this guidance has been developed, we anticipate that the Superfund
and RCRA programs will adopt it and will thereby become consistent in
their cleanup policies for lead.
        This has been retyped from the original document.

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                                                     9502.1990(01)

                           MAY  7 1990
                                                                        i
                                                                       £
                                                                       L

MEMORANDUM                                                             «
                                                                       C
                                                                       K
                                                                       If
SUBJECT:  Interim Guidance on Establishing Soil Lead Cleanup
          Levels at RCRA Facilities                                    I

FROM:     Sylvia k. Lowrance, Director                                 c
          Office of Solid Waste                                        5

TO:       David A. Ullrich, Acting Director                            £
          Waste Management Division, Region V  (5HR - 13)               •"

                                                                       c
                                                                       ^
     This is in response to your memorandum of February 15, 1990       4
requesting interpretation as to whether a recent OSWER Superfund       £
directive (19355.4-02), which sets forth interim soil cleanup          c
levels for lead at Superfund sites, also applies to RCRA closures      [
and corrective actions.  In addition, this memorandum will             r
supplant the memorandum from Sylvia Lowrance to William Muno           =.
dated May 27, 1988, interpreting the use of soil background            |
levels for lead as clean closure standards.
                                                                       r

     As you know, establishing a health-based "cleanup" level for      }
lead in soil has been a major issue for the Agency for some time.
Presently, there is an interoffice project underway to develop         [
site-specific soil lead cleanup levels based on a biokinetic           \
uptake model, as referenced in the above guidance memorandum.  We      ^
anticipate that this model will be finalized within the next           1
several months; however, we recognize the importance of
addressing this issue at this time and so are offering this
interim guidance.                                                       t

     We understand that during this interim period, Region 5 and        *
other Regions and States will need to make decisions as to the          '.
appropriate levels for lead in soil in the context of RCRA
closures and corrective actions.  It is our understanding, based
on some preliminary runs of the new model, that the soil lead
cleanup levels could be as low as 100 - 150 ppm at some
facilities.  These levels would reflect a set of default values,
based on conservative assumptions regarding exposure and other
factors.  Thus, there may be a number of situations where it
would be appropriate to use other assumptions in setting cleanup
levels for specific facilities.  For more information on the

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                       soass HwiRmBnaL IMJJHJOLN MI  v
   EME:      FEB i 5 19*}

SUBJECT:    OBHER Directive #9355.4-02  (Soil leal cleanup
            and its Effect onBCRA Closures.

   FECK:  ~  Davrid A. Ullrich, Acting \&a&  (5BR-13)
                            Di
     TO:    Sylvia K.  Laurance, Director  (06-300)
            Office of Solid Waste

                               is to
tðer a recent OSHHR Superfund directive has any effect on RCRA closures.
The directive (19355.4-02)  sets forth interim soil cleanup levels for lead at
Superfund sites.  Recently, the State of Ohio has informed us that an Colo
consulting firm, QM-Midwest,  is attenpting to use this guidance to establish
clean closure levels for lead at RCRA ^H11H««-  Hie Cbio EEA has asked for
the U.S. EEA's assistance in responding to HW-Midwest on this  issue.

The Chio HA bacane authorized to approve closure plans in Jtine 1989.  Prior
to that time, Region V a^a-wml closure plans for Chio facilities.  It has
been Region V's position that, in general, Superfund guidance is not
applicable to RCFA closures t«!«^iyj» of differences in the Superfund and RCRA
statutes (such as for cost-effectiveness requirements).  However, to  assist
the State of Ohio, an interpretation from Headquarters would be helpful en
the  *rMrniar- directive referred to in
We are aware that the Office of General Counsel is preparing a response to
this issue, basfid on procedural grounds only, for the legal action against
the Agency involving Burnham Corporation in Zanesville, Chio.  However, we
believe a policy interpretation is necessary at this time on this issue,
removed frtm the specifics of the Burnhan case*  We are concerned that this
issue will continue to arise at RCRA «*rn
-------
to contact Susan Griffin of the Health Assessment Section (FTS-
382-6392).

     Until the model is finalized, we believe that it may be
appropriate under some exposure conditions, to establish soil
lead cleanup levels based on the CDC-derived numbers, presented
in OSWER directive 9355.4-02, rather than the 100 - 150 ppm range
provided above.  Alternatively, background levels may also be an
appropriate choice for cleanup levels.  Background levels could
be used, for example, in urban settings or industrial areas,
where they sometimes exceed levels derived from health-based
models.

    If you have any further questions, please contact Dave Pagan
(FTS-382-4497) or Lisa Askari (FTS-382-4535).

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  A ''*                                                9503.1991(01)
  	•  z;        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. D.C. 20460
                            MAY 2 I 1991
                                                        . .- t i C k O -
                                              Si:.. C. A-5*:. -S~ EVE°GENO
Mr. Steve Nowak, Controller
Compacting Technologies International
2417 N.W. Thurman
P.O. Box 29046
Portland, Oregon 97210

Dear Mr. Nowak:

     I am writing in response to your letter, dated
March 14, 1991, in which you request clarification of the
definition of treatment.  Of particular concern to you is whether
treatment includes practices such as compacting hazardous waste
inside a steel drum.

     As described in your letter, Compacting Technologies
International  (CTI) sells a machine that compacts hazardous waste
inside a steel drum; the benefit to the customer is a reduction
in waste volume and thus, a reduction in disposal cost.  Your
concern seems to be whether such a practice constitutes treatment
that is subject to the permitting requirements of
40 CFR 270.

     Treatment is defined in 40 CFR 260.10 as "...any method,
technique, or process, including neutralization, designed to
change the physical, chemical, or biological character or
composition of any hazardous waste so as to neutralize such
waste, or so as to recover energy or material resources from the
waste, or so as to render such waste non-hazardous, or less
hazardous; safer to transport, store, or dispose of; or amenable
for recovery, amenable for storage, or reduced in volume"
(emphasis added).  Based on the limited amount of information  in
your letter, a machine that compacts hazardous waste in a drum
will meet the definition of treatment if the reduction in volume
results in a change in the physical, chemical, or biological
character or composition of the waste.  Bear in mind, however,
that under many circumstances, RCRA permits are not required  for
generators who treat their waste on-site in tanks or containers
(see enclosed memorandum dated June 17, 1986).

-------
     A final determination on whether a permit is required for
such a compaction practice, however, must be made in the EPA
region or authorized state where this machine will be operated.
The determination will be subject to site-specific conditions and
waste types that are best assessed by regional or state
personnel.

     I hope this information is helpful.  Again,' if more specific
information is needed, please contact the applicable EPA regional
office or the authorized state.
                                   Silvia K. Lowranc6
                                   Director
                                   Office of Solid Waste

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9504 - COMPLIANCE
AND ENFORCEMENT
                ATKl/l 104/55 kp

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                                                           9504.1984(01,
   •»
    \      UNITED ST.. TtJENVI-C-'M^NTAL PROTECTION AGENCY

                      WASHINGTON. O.C.  20410
                                1C IS34
MEMORANDUM
SUBJECT:  Enforcing Groundwater Moni'toring  Requirements  In
          RCRA Pare B Permit Applications/*}

FROM:     Courtney M. Price L>*-^ * ^' ^*~
          Assistant Administrator for Enforcement
            and Compliance Mcrnitorii
          Lee M. Thomas
          Assistant Administrator
          Office of Solid Waste and Emergency Response

TO:       Regional Counsels
          Regions I-X

          Air and Hazardous Materials Division  Directors
          Regions I-X

     Existing regulations under the Resource Conservation and
Recovery Act (RCRA) require owners and  operators  of  hazardous
waste land disposal facilities to conduct groundwater monitoring
in order co obtain a Part B RCRA permit.  (40 CFR 270. 14(c) (4) .
(6), and (7); 40 CFR 264.98(h)(2) and 264.99(f)).  To satisfy
these requirements, owners and operators must,  under certain
circumstances, monitor for each constituent  listed at 40 CFR
Part 261, Appendix VIII.

     Recently a number of Regional Offices,  in  response to
inquiries from Che regulated  community, have questioned whether
certain |roundwater_ monitor, ing jtf quirements .might, be waive q in
appropriate circumstances.  Specif icially questioned is the
need to monitor for each and  every constituent  listed in
Appendix VIII.

     There are essentially three arguments  advanced  to  support
selective waiver of the regulatory requirements:

     1) certain constituents  listed  in  Appendix VTIT are
unst ab Le.Ht
                                                    .
groundwater using generally  accepted analytical techniques;

-------
                             - 2 -


     2) EPA-accepted, standardized cest procedures do nor PXJ«r
for some Appendix VIII constituents.Until such procedures are
specified, LCA shouio not icv^uite lacllity owners Co oonicor
for these constituents; and

     3) certain constituent* are not analyzable by scan
methodology!Testing for cnese eonscicuenci ii difficult, and
the"lndTvi3ual chemical oechods used, arc very expensive and
should not be required unless there is some reason co believe
thac such consticuencs are actually present in the groundwater.

DISCUSSION

     Any request to waive or selectively enforce groundvater
monitoring requirements runs counter co the high enforcement
priority the Agency has assigned to groundvater monitoring
violations and must be viewed carefully.  Nevertheless, the
Agency recognizes that there Is technical merit to some of the
eoncencloni set forth above and is"aev?Ioping re2ulatorv
changes to correct these problems.  ProposaTof -thesli changes
by the Office of Solid Waste is expected in August 1984. and
that Office plans to promulgate the changes as a final rule by
early 1985.                                       	
 ^^^^•^^^MMMM^MIM^V    *

     Recognizing the problems created by existing regulations,
we believe that It is permissible for Regional enforcement
fi
ersonnel to assign low priority to certain technical requla-
ory violations in appropriate circumstances.  The first situa-
tion concerns the regulation which currently requires permit
applicants to monitor for constituents which, because of their
chemical properties, are not detectable in groundwater using
generally accepted analytical techniques.  The constituents
that fall into this group are set forth at Attachment I to
this memorandum.  Because these constituents cannot be detected
in groundwater, there is no conceivable environmental benefit
to be gained by requiring formal laboratory analysis.

     The second situation which we believe merits low
enforcement priority involves the failure to monitor for those
constituents1 for which  there are no EPA-approved test methods.
These constituents are  set forth at Attachment II to this
memorandum.  We believe that low enforcement priority is
warranted in these eases because the  absence of any approved
test method makes meaningful analysis of any reported data
difficult.

-------
     Unlike the first two situations, the last situation
presented by permit applicants does not warrant any change ,in
our enforcement priorities.  This situation concerns the need
to monitor for those constituents that are not analyzable by
scan methodology.  These constituents are listed in Attachaent
III to this memorandum.  Applicants havt argued that absent
some indication that such constituents are present in the
groundwater, no monitoring should bt required.

     This argument Is noe persuasive.  The regulations clearly
require analysis for chest constituents.  Unlike those constit-
uents listed In Attachment II, accepted test procedures dp
ex  ig for Attachment III constituents.Tht face that such
tesc procedures are expensive is legally irrelevant.  Moreover,
EPA has previously rejected the notion that facility owners
can determine the hazardous constituent! emerging  from a  land
disposal unit from records detailing the wastes previously
disposed of at the facility.  Therefore, a facility owner's
failure to monitor for these Attachment III const teueTTCi" should
ordinarily feYulc in enforcement action.  '    "	•

Attachments

-------
                                      ATTACHMENT I
Acecyl chloride
Alureinua phoapfcide
Carbon oxyfluoride
DLaethylcarbanoyl chloride
Fluorlnt
Methyl chlorocarbonate
Methyl Isocyarute
Nitrogen dioxide
Phosgene
Toluene dilsocyanate
Zinc phosphide
                                      ATTACHMENT II
 Cacasin
 Echylenebisdichioearbamic acid
 2-Fluoroacecaraidt
 Iron dexcran
 Laiiocarpine
 Mustard gas
 Nitrogen mustard, N-oxlde and HC1 salts
 Nitrogen muscard and HCL salts
 Nitric oxide
 Phosphine
                                      ATTACHMENT III

 Cyclophosphafflide
 Formaldehyde
 Formic acid
 Hexachlorohexahydrodimethanonaphthalene
 Hydroxydla'ethyiarsine oxide
 7-Oxabicyclo[2.2.1]heptane-2,3-dicarboxylle acid
 Selenourea
 Serepeoxococia
 Strychine

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                                                          9504.1984(02
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON. D.C. 20460
                          NOV 29)964
MEMORANDUM
SUBJECT! Part B Permit Applications with Insufficient
         Ground-Water Monitoring Data
 FROM:
TO:
         Lee M. Thomas
         Assistant Administrator for" Solid Waste and
         Emergency Response.              •->

         Courtney M. Pr ie a v _ i^ ^    C A W^L ^
         Assistant Administrator for Enforcement and
         Compliance Monitoring

         Regional Administrators, Regions I-X
         Regional Counsels, Regions I-X
         Air and Hazardous Materials Division
           Directors, Regions I-X
BACKGROUND

     Regional personnel
with RCRA Part B permit
ground-water monitoring
data, specifications on
past monitoring results,
                        have raised questions as to how to deal
                        applications containing insufficient
                        (GWM) data. (This includes hydrogeological
                        well construction, sampling methodology,
                         and other aspects of ground-water
protection as required by 40 CFR $270.14(c).) The GWM data
submitted in Part Bs is often insufficient to satisfy the
informational requirements of S270.14(c).  The failure of many
facilities to generate appropriate GWM data prior to the Part B
due date has resulted in a number of incomplete Part Bs, as well
as complications and delays in the permitting process.
     While general guidance on responding t
Part B applications is set out in a memo da
the deficiency of a Part B with respect to
special case.  This type of deficiency is o
facility's failure to comply with Part 265
addressed (or if detected early can be avoi
of the Part 265 requirements.  Further, Par
GWM data are often submitted by facilities
of presenting substantial hazards to human
                                           o late and incomplete
                                           ted September 9, 1983,
                                           3'..*M data presents a
                                           ften the result of a
                                           requirements and can be
                                           ded) through enforcement
                                           t Bs with inadequate
                                           that have been suspected
                                           health or the environment

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                               -2-


through ground-water contamination.  If Orders issued under RCRA
53013 are used to require such facilities to gather appropriate
ground-water data, that data may also satisfy the Part 27Q informa-
tional requirements and thus ensure that such facilities submit
adequate Part Bs.

     The purpose of this memorandum is to provide EPA Regional
Offices with guidance on which mechanisms can be used to prevent
GWM deficiencies in Part Bs, and to discuss what mechanisms are
available to respond to deficiencies when they occur.

     This memorandum was prepared before RCRA reauthorization, and
therefore does not reflect the new provisions regarding ground water
protection or permitting.  Guidance on implementation of those
provisions will be provided separately.

I. GWM Information Needed in Part Bs

     Section 270.14(c) lists the requirements for GWM information
in Part Bs.  In essence, the permit applicant must characterize
the uppermost aquifer, describe any existing contamination, and
provide all information necessary for EPA to establish either a
detection, compliance, or corrective action program in the
facility's permit.

     Data generated during a facility's interim status period may
or may not fulfill the Part B information requirements.  In general/
if a facility has fully complied with the GWM requirements of Part
265, including well placement, sampling frequency, and sampling
methodology, the results of interim status monitoring should be
deemed conclusive evidence of the presence or absence of contami-
nation.  In a majority of eases, however,.facilities have not
complied fully with 265 requirements.  This category includes
facilities which have installed only three downgradient wells,
where a minimum of four or more is necessary to meet the standard
of $265.91.  facilities which have not fully complied with 265
requirements may need to do substantially more work, in some cases
including hydrogeological investigations and well installations,
before they can successfully meet Part 270 requirements.
EPA's Permit Applicant's Guidance Manual for Hazardous Waste
Land Treatment, Storage, and Disposal Facilities, and the RCRA
Permit Writers' Manual for Ground-Water Protection, provide
descriptions of specific information needed from applicants.

     Prior to or upon calling in a facility's Part B, Regional
personnel should examine any available interim status data from
the facility, and determine what additional data the facility must
generate in order to produce a complete Part B.  This determination
should be coordinated with the joint permit writer/inspector  site
visit conducted when the Part B is called in.  This  initial review
of the facility, and early setting of expectations by EPA, is
essential to expediting the Part B process.

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                               -3-
     If- EPA makes clear to the facility what types of data are
expected in the Part B, and the initial Part 8 does not provide
this data,  the Region should respond in accordance with.the
•Late and Incomplete Part B Policy".  In such cases,  conservative
deadlines should be set for the facility's response to a Notice
of Deficiency.

     It should be noted that 5270.14(c) requires more and different
GWM data than does Part 265.  In particular/ S270.14(c)(2) and
(4) to require facilities to investigate hydrogeological conditions
at the site, including any plume of contamination that has entered
ground water from a regulated unit at the facility.  In addition,
in order to satisfy $270.14(c)(6) - (8), facilities must provide
information to support a determination of whether hazardous
constituents (i.e., compounds listed in Part 261 Appendix VIII)
are present in the ground water.  Regional personnel should
explain to facility owners and operators as early as possible
what kinds of data (e.g., pieziometric, resistivity, pump-test,
sampling for Appendix VIII compounds, etc.) will be necessary to
meet the Part B requirements.

     Clearly, the exact type and extent of testing and information
gathering will vary considerably from facility to facility due to
such site-specific factors as geology and contaminant behavior.
Also, as a technical matter, Regional personnel initially may not
know exactly what types of data gathering are necessary from each
facility.  Experience has shown that initial ground-water
investigations often uncover problems which require further
investigations.  Even under the best conditions of Regional
attention to facility Part B preparation, applicants may have to
submit several Part B documents before the application can be
deemed adequate.  Although we understand that some delays of this
nature are inevitable, certain delays can be avoided through early
involvement between the Regions and applicants.

II.  Facilities for which the Part B Due Date Has Passed

     In general, the most appropriate response to a facility
that has submitted an  incomplete or inadequate Part B  is
enforcement action under RCRA $3008.  The action should cite
violations of 40 CFR Part 270.  The "RCRA Civil Penalty Policy-
should be used to determine appropriate penalty amounts.

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                               -4-


III.  Facilities for which the Part B is Not Yet Due,  and where a
       Hazard May Exist                   "               —~:	

     Some facilities with significant deficiencies in- Part 265
ground-water data may also be presenting hazards to human health
or the environment through ground-water contamination.  EPA's
authority under RCRA $3013 can be used to gather data at
facilities for which the Administrator determines that the
presence or release of a hazardous waste may present a substantial
hazard to human health or the environment.  A $3013 Order may be
used to require such monitoring, testing, analysis and reporting
as the Administrator deems reasonable to ascertain the nature.
and extent of such a hazard.  Revised Guidance on writing $3013
Orders was issued on September 26, 1984, and supersedes previous
Guidance.

     Data generated by facilities in response to $3013 Orders
could be used to satisfy Part B informational requirements.
Therefore, activities required by $3013 Orders should be consistent
with monitoring activities required for compliance with Part
270, as well as with Part 264 requirements that will be applied
in the future.

IV. Facilities for which the Part B is Not Yet Due, and which
    are in Violation of Interim Status Standards

     A major category of GWM deficiencies involves owners and
operators who are subject to but have not complied with interim
status ground-water monitoring requirements in Part 265.  There
are a variety of Part 265 violations at facilities, ranging from no
monitoring wells in place to inappropriate sampling techniques.
The result may be insufficient data from which the facility can
respond to $270.l4(c).

     In some cases, prompt enforcement of Part 265 violations may
be sufficient to ensure the development of adequate GWM data to
meet the Part B requirements.  For instance/  if the Part 265
violation is an insufficient number of monitoring wells, the
specified remedy (installing additional wells1 may be sufficient
to provide data for the $270.14(c) requirements for information
regarding possible ground-water contamination and for a proposed
well network.

     Alternatively, where a Part  265 remedy will not provide usable
or sufficient information to satisfy a Part B requirement, and
where a substantial hazard may exist, it may  be more appropriate
to use EPA's broader authority under RCRA  $3013 to obtain data.
Also, where a Part 265 remedy will not satisfy Part B requirements,

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                               -5-


and the Part B will be due shortly, enforcing the Part 265
requirements may be counterproductive.  In that case it may be
more practical to wait for the Part B due date and enforce the
requirements of Part 270.  Of course, it is generally appropriate
to assess penalties for past violations of the Part 265 requirements,
regardless of whether future compliance with Part 265 is sought.

V. Facilities Not Currently in Violation off Interim Status GW*
    Standards

     There is a range of situations where an applicant is not in
violation of Part 265, but has not generated complete Part 265
data either.  These facilities' Part Bs do not include enough
Part 265 data to address the 5270.14(c) requirements properly.
This category of facilities includes:

     • neutralization surface impoundments';
     • facilities operating under a 5265.90(c) waiver which
       was not evaluated by EPA or an authorized state;
     • facilities located in states which prohibited
       well installation prior to state approval, and the state
       issued its approval late (or has not yet done so); and
     • facilities in early stages of Part 265 ground water
       •assessment", and where contamination data is not yet
       available.

     In addition, new facilities often present little or no
existing data from which to evaluate compliance with 5270.14(c).

     The foregoing are complex situations and the appropriate
response may vary.  We intend to develop further guidance on the
information-gathering mechanisms that may be applicable to
these categories.  As mentioned in Section I of this memorandum,
Regional personnel should notify facilities as early as possible
prior to or upon calling in their Part Bs  (or upon knowledge of
a planned new facility submittal) of the types of data that must
be submitted in the Part B in order to satisfy 5270.14(c).
These- informational requirements should be further clarified
during the EPA joint permit writer/inspector site visit when the
Part B is called in.

cc:  John Skinner
     Fred Stiehl
     Gene Lucero
     Tony Montrone
     Bruce Weddle
     Jack Lehman
     Eileen Claussen
     Peter Guerrero
     Ken Shuster

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                                                          9504.1986(01)
                        JIM
MEMORANDUM
bUBJLCT:  Update of CERCLA National  Priorities  List
          Including KCKA Facilities

PKOM:     Vanessa Musgrave (WH-563)
          Public Involvement Coordinator

TU:       Public Involvement Coordinators, Regions I-X
          Public Affairs btaff, Regions I-X
               branch chiefs, Regions  I-X
     The Office of Public Affairs recently sent me a copy of the
rulemaking adding sites to the CCRCLA National Priorities List
(NPL).  I am forwarding some or that information which 1 thought
woula oe of interest to you.

     The buperfund program added 17U sites to its tinal National
Priorities List (NPL), making them eligible for longterm action
and federal funding under CERCLA.  Also, 45 other sites ve re-
proposed tor the list.  Among those added to the NFL were six
KCRA-regulated facilities. This rulemaking also includes a policy
that outlines when KCKA facilities will be placed on the NPL.  The
policy is outlined in the press release, which is attached for your
information.

     l have also attached other documents on this NPL update which
affect the KCKA program and may be of internet to you.  This includes:

     *  Final rulemaking of May, 19bb, which includes:

               - background information on the NPL
                 and the updates

               - a list ot the 703 sites ranked by
                 haiara Ranking Score (hKS)

               - a list of sites added and proposed
                 in this rulemaking, listed alpha-
                 betically by State/Territory

               - number ot final and proposed sites
                 in each State/Territory

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                              - 2 -
       proposed update IS, alphabetically lifting littf being
       considered for the Mf»L, and on which there will be a
       sixty-day public ooaaent period;
     • descriptions of ssch RCRA-related sits, including
       those finalised and those which vere previously
       proposed but not covered by this iul«uklng.

     Please note that descriptions of all OL sites have not been
included.  Instead, I have enclosed site descriptions of 1) BCJtA-
related sitesi 2) federal facilities that are included in the
Amy's plan to deailitarise nerve fas frcai eight locations across
the country! 3) facilities that X know are of particular interest
to Regional staff.  Flease share this information with any other
Regional and State Staff you believe have en interest in this
Material.

     If you would like copies of any other site description*,
contact the public affairs office in your Region or call as at PTS
3*2-47*1.  I will be happy to s»et your request.

ccs  without/attachment  Matt Hale
                         Dave Fagan
                         Terry Grogan
                         Art Glaser
                         Carol Ansheles
                         (•eorge Garland
                         Susan Brossi
                         Susan Mullard
                         Ton! Ferrara
                         Pan Garrow
                         Andy Caraker
                         Daphne Geaill
                         Anne Fenn
                         Melissa Friedland
                         Joan Harren
                         Kate Connors
                         Debbie Rutherford
                         June Taylor
                         Robin Moods
                         Matt white
                         Gordon Davidson

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                                                   9504.1987(01)
 JUL  201987
SUBJECTS  enforcement of Applicable RCRA  Regulations  at  Facilities
          with rending Delisting fetitioas

          Gene A. Lucoro, Director
          Office of tfaste Programs enforcement

          flarcla Williams, Director
          Office of Solid Waste  (WH-562)
TOt       waste Management Dirisioa Directors
          Regions I, XV, f, VII, t VIII

          Mr & Waste Mangesieflt Division Director
          fe^ioo XX

          Hasacdous Haste Management Division Director
          legion III, VI « I

          Toxics 4 tuste Manaoesent Division Director
          Region XX
     The purpose of this swsorandva is to restate Agency
policy regarding tao enforcement of applicable BCBA
regalatiooa at aasardous waste handlers that have pending
delisting petitions*  It nas co»e to our attention that so««
ftegions and States say be allowing non-compliance with some
or all of the BC8A Subtitle C requirements pending a decision
on .active delisting petitions,  we are reaffirming nor* that
these weates remain nasardoos wastes and that they, and the
units ia which they are managed, are subject to all applicable
RCRA regvlatiooa, including financial responsibility, groundvatec
aonitoring and closure requirements, until the delisting is
officially granted.  In addition, facilities are still subject
to the 19S8 and 19lt statutory deadlines for permit issuance.

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                              -1-

     Sections 260.20  and  260.22 establish • petition process
which allow* a facility to  demonstrate  that its waste,  although
captured by tha broad listings of  faction 261.3, do«a act meet
any criteria andar which  tha  w&ata w*a  littad,  including tha
praaence of additional conatituanta.  Decisions on  waata
delisting have alwaya been  baaed on a chemical  characterisation
of tha w«0ta itaalf and of  tha processa.* generating that
waste, not on facility design, management practices or  aita
conditions.  Therefore, until a final daciaion  ia Bade  to
grant tha petition, tha watte ia hasardoua and  tha  facility
remains subject to enforcement of  all applicable regulations
(including compliance with  Subpart F groundvater son!torIng
requiraaentl).  Facilities  that are not in compliance with
RCRA regulations are  subject  to enforcement action.

     Concotmwitantly,  facilities (excluding those with temporary
or informal exclusions) that  had pending delisting  petitions
on November 8, 1985*  were aubject  to tha Loss of Interim
Statua (LOIS) provision of  the Hazardoua and Solid  Waste
Amendments of 1984 (HSWX)»  Facilities  that failed  to validly
certify compliance with Subparts F and  H and submit a Part B
application for an operating  permit on  or before November 8,
1985 were required to cease operating their hazardous waste
land disposal units and submit a eloaure plan foe those units
by November 23, 1985.  Facilities  with  pending  dalisting
petitions that failed to  retain interim status  and  continued
to operate after November 8,  1985,  and/or failed to submit the
required closure plan are subject  to enforcement actions
under Section 3008 of  RCRA.
   Facilities whose only waste waa aubject to a temporary or
   informal exclusion were not required to meet Part  265
   atandarda during the effective time of the exclusion.
   However, all temporary and informal exclusions that had
   not previously been acted on expired by statute on 11/8/86
   (Section 3001(f)(2)(8)).  Facilities that had either a
   temporary or informal exclusion were in one of four
   categories on 11/8/861  (!)  the final deliating waa granted
   and that waste is no longer subject to regulation  under
   RCRA | (2) the petition was denied when, after repeated
   roqus»ta from the Agency, the facility failed to provide
   additional information for the petition! these facilitiea
   had %a> be) in compliance with Part 265 regulationa  immediately)
   (3) the) completed petition waa denied baaed on the merita
   of the petition  (i.e., the waste was determined to be
   hacardoua)! these facilities had six months from the date
   of publication of the denial in the Federal Register to
   come into compliance with Part 265 standards* or  (4) the
   excluaion expired by statute? these facilities' petitions
   moved back into  the standard delisting process and the
   facilitiea were  again subject to all applicable RCRA
   requirements.

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     If you have any question* regasdia? the iteration o£
this policy, pl«a*« call St«v« Reare tt 3t2-22f70
cct  Eltin« Stanley
     Bcuce w*ddl«
     RCRA r-..  	,: Branch ChUfa,
         Regions I - x
NBrownercmciWH-527:6/19/87i475-9326
Nancy 1: Pile 1

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              UNITE[m.TES ENVIRONMENTAL PROTECTS          9504.1987(02
                         JUN-5 1957
MEMORANDUM
SUBJECT»  OSHA Hazardous Vast* Site Activity

PROMi     Art Clater, Chief
          Incinerator/Storage PAT Section

TO:       Hazardous Waste Branch Chiefs, Regions I-X

     During the March Permit Writers Conference Call, I polled
the Regions to determine if you anticipated needing large-scale
assistance from the Occupational Safety and Health Administration
(OSHA) to address issues relating to worker health at RCRA
tacilities.  The potential need for OSHA assistance had cone
up during earlier discussions with the Regions when we were
identifying candidate facilities for health assessments by ATSDR
under Section 3019 of RCRA.

     As it turns out, the polled Regions generally did not foresee
the need for large-scale OSHA assistance in addressing worker
health issues at this tine since there had been only a few isolated
cases where worker health issues had surfaced.  However, several
Regions indicated it may be helpful to have access to information
OSHA has prepared on TSDs they have inspected in order to assist
the permit writers in evaluating worker safety/contingency plans
or other aspects of the Part B.  Hy staff talked with OSHA'a staff
and they can provide us with information on OSEA's compliance
monitoring history at RCRA facilities.

     OSHA has been inspecting RCRA facilities and has developed a
data system.  OfBA'a data system divides the RCRA universe into
two oategodemi  generators (including on-site facilities) and
off-site TtDsu  Attached is a list of OSHA Regional Administrators
responsible for monitoring RCRA/CERCLA facilities and an example
of how OSHA faeords inspections in it's data system.  This infor-
mation was furnished by staff at OSHA'a Health Reaponae Team
(HRT) which is located in Salt Lake City.

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                               -  2  -
     tPA and OSHA havt worked together in the past at several
RCRA facilities  (e.g., tPA inspector* have referred facilJtire
to csHA's inspectors when there was concern for worker safety).
Although EPA does not havv. a signed agreement with OSHA to do
joint inspections at RCRA facilities/ or for that matter, to
make reicrrals.  OSHA's HRT provided us with a print-out  from
their data .system of past OSHA activities at RCRA commercial
facilities, about 75 inspections  (some repests) have been recorded
over the last several years.  The print-out is not in a format
that lends itself to easy reproduction, so I am attaching several
pages as an •xanple.  OSHA's information on RCRA facilities
appears to b« useful in writing permits and performing inspections.
You are encouraged to contact th« appropriate OSHA Regional
Administrator (note. OEHA's Regions are the same as tPA's Regions)
to discuss inspection philosophies or to obtain a compliance-
report on a particular rac>lity.

     One of OohA's LKT objectives is to prepare a "Compliance
Directive and Targeting Notice" (CCTN) which will list facilities
targeted Icr inspection.  OSHA agreed to send us a copy when it is
conploted and in turn I'll provide each of the you with a copy.
You can also contact HRT's Cindy Co« at FTS 56i>-5£96 or OSHA's
HORCKA representative Chap Pierce at FTS 523-7216 to discuss
this information system or their general operating procedures.

     I hot/*? this information aids you in the working with OSHA.
If you hav.- any questions regarding OSHA's standards, policy/ or
guidance froir. the LFA standpoint, please contact Chet Oszman at
*TL 362-449v.

Attachments

cc.  Bruce v.eddlt, OSW
     Suzanne Rudcinski. OSV
     Cindy co«, OSHA
     Chap Pierce, OStiA
     Chet Oszraan, C9n

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9505 - PUBLIC
PARTICIPATION IN
PERMITTING
ACTIVITIES
                 ATKl/l 104/8 kp

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  t         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       V4SHINGTON. 0 C. 20460
                         NOV 1 3
9505.1985(01)
MEMORANDUM


SUBJECT:  Public Participation  Program  Requirements  for  FY  1986

FROM:     Clem Rastatter,  Deputy  Director
          Permits and State  Programs  Divisisn

TO:       Dave stringham,  Chief
          Solid Waste Branch, Region  V


     In your memorandum of September  3,  1985, you requested guidance
on several issues relating to FY  86 implementation of the expanded
RCRA public involvement program.  The following  is our response
to the specific questions  raised  in that memorandum.

     The draft guidance "Community Involvement in RCRA Permitting"
issued in April 1985, should b« used  as  the basis for developing
public participation programs.  Though  it  is being revised, no
major substantive changes  have  been made,  we expect the revised
document to be available within the next several weeks.

     As explained in the April  draft  guidance, Regions and States
are to identify and prioritize  facilities  which, for permitting
purposes, will require expanded public  involvement activities.
It is understood that not  all facilities will require or receive
increased public participation  activity.   The final Judgment on
choosing facilities for this program  will  be made between the
Regions and the States, based on  the  level of public concern and
other criteria as listed in  the guidance.  The Regional staff
should use their best judgment, on a  case-by-case basis, to
reach an agreement with authorised States  on completing necessary
public involvement when a  State is unable  to do  so.  We encourage
the Regions! to enlist state  participation  as much as possible.

     As state* in the FY 86  RIP,  the  Regions should also ensure,
through cooperative) agreements  and work  programs, that States
carry out thair responsibilities  for  expanded public participation,
including field assessments  and public  involvement plans.  We
expect this important element of  the  RCRA  program to be evaluated
during mid and end-of-year reviews of State programs, as well
as in Regional implementation reviews.

     Facility Management Plans  (FMPs) and  Public Participation
Plans for any givan facility should be  closely coordinated.  The
information gathered for each is  complementary to th« «*h«r in

-------
                                -2-
 developing  a  comprehensive  strategy  for  a  facility.   As  adjustments
 are  made  to one,  the  other  should  be  assessed  for  any necessary
 modification  or new information  that  has surfaced.   Both are
 flexible  working  documents  designed  to assist  Regions and States
 in targeting  action where  it  is  most  needed.   Furthermore,  any
 public  involvement  activities that have  significant  impact  on
 workload  should be  included in facility  management plans.

     We recognize that  expanded  public involvement activities
 will further  stretch  staff  and funding resources  in  the  Regions
 and  States.  To assist  in  implementing this  program,  training is
 being given in each Region  to develop public involvement skills.
 The  Regions also  have the  ability  to use contract  funds  for
 public  involvement  activities either through the  Kearney contract
 or the  CERCLA REM contracts.   We are examining options for  ad-
 ditional  assistance to  the  Regions through contractor support.

     Some public  involvement  activities  have been  figured into
 FY 86 workload models for  permits.  Approximately  15% of the
 pricing land  disposal permit  issuance is for public  participation
 activities, such  as placement of a public  notice,  preparation
 for  public  hearings,  and response  to comments. .

     As you know, in  FY 86 one work  year has b«en  given  each Region
 to develop  and implement this expanded public  involvement program.
 Attached  are  estimates  (developed  last year) of work hours  and
 costs to  complete specific  public  participation tasks.  These
 figures will  be updated in the near  future,  to incorporate  recent
 operating experience  of RCRA and Superfund programs,  we expect
 these updated pricing factors to be  incorporated  into the next
'version of  the RCRA workload  model.

     Formal criteria for evaluating  Regional and  State public
 involvement program* have  not teen fully developed.   However,
 during  the  current  Regional implementation reviews public
 involvement will  be one of the) issues addressed.   Questions to
 be asked  during the file reviews have been developed (see attached)
 We will be  working  over the next several months to develop more
 formal  review criteria  and procedures for  assessing  public
 involvement, program*.

     This pregraa is one that must remain  flexible}  not  all
 problem*  or-oontroversies can be anticipated.   The Regions and
 States  should make  plans for public  involvement activities using
 best staff  judgment, and should also be  prepared  to  respond to
 controversies that  arise suddenly,  we believe that  implementing
 this public involvement program will enable Regional and State
 RCRA staff  to anticipate many controversies  and be able  to
 effectively deal  with difficult questions  and  issues raised by  the
 public.

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                               -3-


     I tro»t this addresses your concerns and clarifies public
involvement goals for your Region and States.  Vanessa Musarave in
the Permits Branch is available to assist you and your staff in
implementing this new program.  Please feel free to contact her
at FTS 382-4751 with any questions.                 concact ner

Attachment

cc:  Branch Chiefs, Regions I-IV, VI-x
     Peter Guerrero
     Dave Pagan
     Vanessa Musgrave
     Truett DeGeare
     Public Involvement Coordinators, Regions I-X

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               UNITED STATE* ENVIRONMENTAL PROTECTION AGENCY
                                                       1986(01)

                         September 1C,
MEMORANDUM
SUBJFCTi  n»l<2 Aaseaan«nt  and  Public Involvement Plan
          for the Occidental  Incinerator

FF.OMi     Vanessa Kusarave, HQ

TOt       Lrew Lehirnn and Larry Enniet,  Region II


     It occurred to ne  that them ara eavaral pointe you  u\ay
want to comrtnicata to  F.Ift regional  and  Stata ataff  who have
not been involved with  tne  planning  for  tha Occidental incinerator
facility'a public involve rant plan to date.  In particular,  you
need to be sura that these  staff clearly under* tana  th-a purpoau
and likely outcona of the field aaaeaanant  and public  involvenwnt
plan,  otherwise, I think, they may  have unreallatic «x:5cct«tionfi
about how much the plan can accompli eh and  tf\at is involved  in  its
preparation.  Specifically, they should  unueratanC thatt

     o  The purpoae of the field aaaeaamant ia to reaearch
        con.minlty eoncerna, not to provide  n«. info mat ion
        to the ccnmunity.  vie will noatly be U a tan ing in
        our interview* with citicena and officiala in  the
        Niagara Pal la area*

     o  ?h« findings fron thio  reaearach effort will be uacJ
        to nrepare the public involvenant
        The public involvement  plan  ia only the firat  atep
        in ttM owrsll public involveaant  prograa tor  the
        pejaalttlng proceaa for  the Occidental  facility.
        Th*? pUn will deecribe  the findings of the  field
        as seal event and describe activitiea to  be undertaken
        by the) fttate and Region during the) permitting  process
        to provide infocBation  to  the  public and provide
        opportunities for public input*
        The plan will be cone latent with  the facility
        plan.  Zn addition* the plan will include public  partici
        pation activitiea required under  State and  Federal  law
        cthr m
-------
                               -2-
     c  One important  reason  tcr developing thia t3lan is to
        a nodal for public involvement plan* to oe developed by
        other Region*  or States.  In particular, because many
        facilities involve both PCRA and CERCIA activities, this
        plan can begin to address the coordination of theae
        activities.

     It la important that all staff involved with tne Occidental
incinerator understand the limits on th* anoint a public involve-
ment plan can accomplish before the field assessment is conuucteu
A plan can help coordinate public involvement activities and
prevent unnecessary friction with the conmunity caused by hap-
hazard or insufficient efSorts.  However, no one should ex;*ct
the nlan to identify activities that will resolvt all the public '
concerns an
-------
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY



                                                          9505.1987(01]
  AllG  13 •:-'
SUBJECT i  Negotiated Penr.it*

PROM i     Karcia William*, Director     2 ° ^"' -- '
          Office of Solid Waste  (WH-S62)

TOt       Regional Civieion Directore
          Recrions I-X

     As we move toward the 1988  and 1989  permitting deadlines
an<* as we pernit new treatnent and disposal capacity over
the next several years, we are likely to  face a  number of
difficult issues, both with the  facility  seeing the permit
and with the public.  X believe  that in a number of these
cases, a/imere effective route to a sound  and protective
permit will be through a formal  negotiating process, including
representatives of all interested parties and run by a rteutral
facilitator.  We found this approach useful in our regulatory
negotiation on PCRA permit codifications*  Such  aa approach
should be equally applicable to  permitting*  This may be
particularly true for permitting new facilities*

     I strongly encourage you tc consider a negotiation
process in issuing permits and an willing to provide financial
support to a pilot negotiating project in one of the Regions.
Specifically, the Office of Solid Waste will commit approx-
imately $20-25,000 of extramural funds for a neutral facili-
tator and logistical support for negotiations related to a
specific permit.  If any of you  are interested in financial
support for such a project, please let ms know.

     A wids rang* of facilities  may be appropriate for nego-
tiated permits.  Zn selecting a  pilot, however,  we will be
looking for a project that has a reasonable chance of reaching
a successful conclusion within six Months.  Although a new
facility might be. an appropriate candidate if the conmunity
is generally receptive to its siting, I believe  that a facility
raising controversial siting issues would not be a good
subject of a pilot study sine* we wish to quickly determine
the suitability of the process to permitting.  Ideally, a permit
should be selected where the community has a stake in the
facility an<5 where negotiations  could be  focused on technical
issues, such as the scope of corrective action reqw< *•••—•«• •

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                            -  2 -
     Plaase let me Know if you have any  facilities  in  your
Region that you beliave are appropriate  for  ntcoti&tion,
aiv3 if you are interested in  financial surport  frau OS..'  for
a t-'ilot project.  If you have any questions  on  tnis issue,
please contact Frank IIcAlister of the Permits Branch  (3E2-2223)

cci  R*yional Branch Chiefs,  Renions I-X
     Bruce Wed die
     Matt Hale
     Frank McAlister

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Permitting Procedures (Parts 124
and 270)
                                  ATKl/1112/30sm

-------
9520 - PERMITTING
PROCEDURES
Part 270
                  ATKl/1104/4kp

-------
                                                   9520.1986(01;
                  RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                                  FEBRUARY  86
2.   Tfre Qmibus Provision and Permits

    An interim status landfill contains reactive hazardous waste (0003).   The land-
    fill is a regulated unit because it accepted hazardous waste after July 26,  1982.
    Since it is a regulated unit, the landfill is subject to 40 CFR 264 post-closure*
    standards.  EPA enforces 40 CFR 264 post-closure standards by issuing a post-
    closure permit.  Prior to closure, the waste at the facility will be treated
    until it no longer exhibits tne characteristic of reactivity.  The permit writer
    is concerned that during the post-closure period, waste residues will be reduced
    anaerobicallyito the point where the material would again exhibit tne character-is
    tic of reactivity.  The permit writer wants to require tne owner of the Site tc
    perform hydrogen sulfide gas monitoring and sulfide detection during tne post-
    closure period to measure the rate of anaerobic reactions.  Can these morutonrt;
    requirements be included in the post-closure permit?

       Yes;  the Hazardous and Solid Waste Amendments of 1984 (HSWA)  significantly
       increased the authority of the EPA when writing permits by adding an 'omnibus
       provision" to the Solid Waste Disposal Act ($3005(c)(3».   This provision
       states that "(ejach permit issued under this section shall contain sucn terms
       and conditions as the Administrator (or the State) determines necessary to
       protect hiasn health and the environment.'  The final codification rule
       published in the July IS* 1985 federal Register (SO FR 28702) incorporated
       the statutory provision into 40 CFR 270.32(b)(2) of the regulations.  This
       provision gives permit writers the authority to impose) permit standards in
       addition to applicable permit standards found in 40 CFR 264, as long as the
       permit writer can justify the need for the additional standards in terms  of
       protection of human health and the environment.  Additional standards can oe
       justified by basing the standards on such.sources as documented studies,
       expert opinions, and published articles.

       Sources    Lillian Btgus  (202) 382-4691

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9521 - GENERAL
REQUIREMENTS
Part 124 Subpart A
                   ATKl/l 104/1 kp

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                                                         1984(01)
       MEMORANDUM
                                   2 • MAY  1384
        SUBJECT:   Inadequate  Part  6  Permit  Application

        FROM:      John  H.  Skinner.  Director
                  Office of  Solid  Waste  (UH-562)

                  Gene  A.  Lucero,  Director
                  Office of  Waste  Programs  Enforcement  (WH-527)

  ^     TU:        James H. Scarbrougn, Chief
                  Residuals  Management Branch, Region  IV
a 50
a*-v
a f>
s* SN»
a >*
-5 *
•O V
~** a
a a
O
»
I
i/l
•*• '
V
a
-3
     You have requested guidance on whether the use of Section
3ooa administrative orders 1s appropriate to compel KCKA permit
applicants to suomlt "tecnnlcalljr adequate" Information after an
application nas oeen determined "complete."

     A determination that an application 1s complete 1s not
necessarily a determination tnat the application 1s free of
deficiencies.  During the detailed review of the application and
tne drafting of permit conditions, 1t may Become necessary to
clarify, modify or supplement previously suomitted material
oerore progressing to a draft permit or a decision to deny.

     Tne regulations specifically provide the Regions authority
tor gathering Information after an application has been determined
complete.  "After the application 1s completed, the Regional
Administrator may request additional Information from an applicant
but only when necessary to clarify, modify, or supplement previously
submitted material.* 40 CFR 124.3(c).

     If applicants do not supply the requested Information, the
Regions May compel them to do so.  If tne Information 1s not
forthcoming, the Regions may deny the permit.  Mf an applicant
falls or refuses to correct deficiencies In tne application, the
permit may be denied and appropriate enforcement actions may be
taken under tne applicable statutory provision including RCRA
Section 3UU8..." 4U CFR 124.3(d).

     You are correct 1n concluding tnat tne enforcement guidance
dated September 9, 1983, speaks only to "late or Incomplete"

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                               -2-
applications.  That $u1danci ««s Intended to apply to the ptHod
otfort the application 1s determined complete.  After the finding
that tnt application It complete, supplemental Information way
be needed.  You rute ••t«r*l optlont for obtaining tn1» additional
Information.

     If you Bt11«»« Mrltttn or vtroil  attcupts to ytt additional
Ufor«at1o« -111  not »• tucctttful, you «ty; Issut • warning
Ittttr (leading to a Section 3U08 ad«1n1itrat1»t order), 90
dlrictl/ to i Stctlo* 3009 order, or Istue • notice of Intent to
deny tne »er«1t.  The specific aecnaiitta «sed It an area of
discretion and require* eaie ftjr case judgienti 5> ReaUnal offices,
He Regions snould select the adalnlstratlfe or enforcement
•echanlsas that «U1 aost offU1«ntl/ expedite the developatnt
of Information necessary for RCRA permit decisions.  The office of
Waste Programs taforcement Is carrently working on galdance vhlcn
•111 assist /oe 1a selecting among enforcement responses.  This
guidance should BO available mldsemmer.

cci  Branch Chiefs. Regions l-III, f-l
     Regional Directors, Regions 1*X

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                                              9521.1984(02)
                              MAY  7 1984                              *
                                                                       «
                                                                     > *•»
                                                                     I I
                                                                     *- 09
                                                                     — en
                                                                     en •
                                                                     »T >
Dr. Robert Bernatein, COBalaaioner                                   » §"
Taxaa Department of Baa1th                                           M g"
1100 Weat 49th Street                                                ~i
Austin, Taxaa  78756                                                   o
                                                                       ^
Daar Dr. Bernateini                                                  ^-
                                                                     3 X
     Thank you for your  letter of April  4  axpreaaing  your           «»>
concern about EPA* a requirement that  aathorited statea hold         U« i
a public haaring aftar iaauanea of a  draft haiardoua  vaata           " *. *.
parvit.  Z «nd«ratand that tha Taxaa  Dapartaant of  Haalth ia         » n e
eomittad to an affactiva public participation  program in             '  *
pa rait iaauanea f and I appraciata your concarn  about  tha               ui «4
ragulatory aganey appaaring to hava aada up ita wind  at tha           *
tima of tha panit haaring.

     •action 7004(b) of  ftCRA  raquiraa IPA  and authoritad
Stataa to publiah notica of tha Aganey•a intantion  to iaaua
a panit and*.to hold a haaring if vrittan  notica of oppoaition
ia raoaivad.  EPA and authoritad Stataa  ara thua raquirad by
RCHA to publicly notica  thair intantion  to iaaua a  pamit
prior to holding a haaring.   Tha atatuta raouiraa thia approach
in ordar to allov tha public  opportunity to raviaw  and provide
eoauRanta on tha apacific conditiona which  tha Aganey  intanda
to apply in tha draft pamit.

     Nothing in RCRA or  tha EPA ragulationa pracludaa a Stata
frow holding a public haaring or Mating prior  to iaauanea  of
tha draft parnit, aa long aa  an additional opportunity for  a
haaring ia provided following iaauanea of  tha draft penp.it.
we do, in fact, racogniie the value and  importance  of early
public involvement in tha permit proceaa.   In our draft National
pet*ita Strategy we include Regional  Office preparation of
facility-specific public participation plana and auggeat  that
a public meeting be held prior to iaauance of the draft permit,
in addition to tha haaring which ia aubaaquently held.

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                            -  2  -
     X wiah to ooaaMftd  tna  icata of  Taxaa for ita ooa»ita*nt to
        • aound haaardoua vaata aaaag«Mi»t program*   Vaxaa haa
ba«n in tha forafront in pwranit of  intaria and final author-
isation.  Plaaaa lat »a know  if X Bay ba  of furthar  aaaiatanea.

                               •inearaly


                               /•/ Jaak 9*

                               Laa M.
                          Aaaiatant  Administrator

•ei Dick laiittiogtoa, F.I., lagioa vx
    Caarlaa •• Haailr* Taxaa Oapartawnt of Vatar Baaonreaa

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                                            9521.1984(03)
                              9 JUL 1984
Subject!    Pt port ing withdrawals as Final Permit Determinations

Promi       John H. Skinner* Director
            Office of Solid w««t«

Tot         Rasardous Wast* Division Directors, Regions I-X


Purpose

     This memo is in response to your inquiries concerning how to
report permit withdrawals in the Strategic Planning and Management
System (SPMS).  It replaces all earlier guidance in this regard.


»>miir«m*nt« for • withdrawal Final Determination


     For SPMS purooees, a permit aoplication is considered with-
drawn when EPA, or «it authorised state* approves the closure
plan for the facility following in inspection, a public notice
of the plan, and response to comments*  Termination ot interia
status through penult denial is not a' prerequisite for counting
a withdrawal as a final determination, nor does it matter whether
th* Part * reau*st Precipitated the closure or whether the facility
voluntarily chose to close in the absence of a Part B request.

     As discussed in previous guidance and in conversations we have
had, it is a regional and state decision whether to proceed to
deny a permit and terminate interim status for facilities which
request withdrawal.  Note, if you deny a permit for facilities which
have withdrawn (as defined above), this permit denial should not
be reported as a •pornlt denial* final determination in SPMS aince
the 'permit denial" category is reserved for facilities which re-
quested a permit and were denied because they failed to submit an
adequate Part B and/or failed to show compliance with the Part 264
standards.  We are developing separate guidance on how and when to
terminate the interim status of facilities.

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                               -2-

Proteettve Ptlera


     X* no eaae ahould the withdrawal of a protect!** filer be
r^^rted »• • final oerMt determination.  A withdrawal la con-
sidered a final det erml nation only if the facility qualified
for lnteri«> statua, reque«te<1 withdrawal (e.g., went out of
Duvineaa, changed waste streams, moved to undmr 90-day storage),
an inspection wa§ conducted of tha facility, /and a cloaura plan
wa* approval afttr public not lea.


Less Than 90-day Storers


     Regarding laaa than f 0-day storera, some ragiona hara aakad
whathar cloaura plant should b« r«quir«d and, if aoy whan auch
plana should b« i«pla»«ntad.  w* ar« alao davaloplng guidance in
this *r«ai in tha intariB* you should raport rararaions to laaa than
90-day atorao* as final datarmlnat lona in SPMS only if tha precadurea
outlined in tnta »»^e ara followed (!•••« ins pact loo « public not lea,
cloeurn olan aonroval, ate.).  0* pending on our futura guidanca
en fseilitias which hav« b«ceaM l«ss than 90-day storvrs, wa vay
track aetlvitt** ralat«<1 to actual eloaur* of th«a« faeilitl*a
outf Ma th« f^ns systtsi antlraly.
     Aprlicatiena withdrawn for n«w facilities will not b* counted
aa final ^terminations in SPMS since there is no closure process
for tw*«» *»cllltl»s»  ffov«»v»r, you ahnut^ indicate these withdrawals
in «•>• »wr»»« tw»n*it action reer»r* beeauae we do want a record o<
th*s« «cMon.« to assist us In STaluating real on A! workload*  (If FPA,
or an authorise state, drafted a permit (or a notice of intent to
d^ny a pen-it) prior to th« annlieant's request for withdrawal, the
draft permit is counted in 8PUS towards the region's coeuaitMnt for
draft penults).

HVDMS Pats 81e«ents


     We recocnlse that you »ay need to ehanne your procedurea for
reporting final determinations in RWDHS to accommodate thia guidanca.
The O«W Information Management Task Poree reviewed a draft of thin
guidance during 'their meeting of June 19 and 20 and made recommenda-
tions for chanoi no the renortlnn procedures to minimise the burden
in the regions.  The primary chances involve redefining sone of the
code a under the C11P5 eo*fx>n»nt (facility status information).  *e
will be sending a memorandum to you shortly recuestin*} your comment?
nn the Tantr Forces' reeof^endations.  Until the final reoortinn
procedures for m.*axs are developed, we will continue to verity the
nu^her of withdrawal final 
-------
     If you hava any quaationa pr ecvoMnta plaaaa contact
Patar Guarraro on 8-382-4740 or Doug Kuby on 8-382-4499.

AttachiMnt

cct  Hazardous Waat* Branch Chl«fa, Reglona I-X
     RWDMS RPOe, Ragiona X-X
     P«t«r Guerraro
     Stava L«w

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY     9521

                           WASHINGTON, 0 C 20460

"V
                                                                Of

                                                   SOLID WASTE AND EMencgNCY
    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 statue  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 interin status, and thus subject to the general
    closure performance standards of Part 265 and post-closure ground-
    water tnonieering ($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 hav« any further questions regarding this issue, please
contact Dave Fagan, Acting Manager, Permits Policy Program at
382-4740.

Attachment

cc: RCRA Branch Chiefs
    Permit Section Chiefs

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              UNITED STATES ENVIRONMENTAL rxw I ;L CION AOcnCT;



                                                        9521.1986(02)


                            MAR 24
Mr. C. Edward Ashby,  Jr.
Envirosafe Services,  Inc.
115 Gibraltar Road
Horsham, PA  19044

Cear Mr. Ashby:

     I am writing in  response to your  letter of February  25,  1986,
to the Administrator,  in which you  offered  several  observations
and raised specific concerns regarding the  RCRA permitting process.
I appreciate your having taken the  time to  communicate  these
concerns, based on your company's particular experiences  with
permitting of your hazardous waste  facilities.

     I agree with your general assertion that the RCRA  permit
process is time consuming and resource intensive, and that there
may be regulatory and  other changes which can be made to  enhance
the efficiency of the  permit process, without sacrificing environ-
mental protection.  In recognition  of this, the Office  of Solid
Waste recently established a task force to  comprehensively examine
the problems of the RCRA permit program as  it currently functions,
and to recommend changes to improve the process.  The results of
this tasic force effort should b« available  in the next  several
weeks.

     Your basic observation regarding the fundamental differences
between the RCRA permit process and other EPA permit programs is
also well taken.  It  is true that RCRA permits are  quite  compre-
hensive in nature, in  contrast to other types of environmental
permits, such as NPOES permits.  However, the RCRA  permit does not
cover a discrete discharge from a well defined source,  but rather
must address in a comprehensive way a number of design  and oper-
ational aspects of a  facility relevant to the management  of hazardous
wastes.  This is a reflection of the complex nature of  hazardous
waste management facilities, and the various means  by which hazardous
wastes. If mismanaged, can cause environmental damage.  The objective
under RCBA is not to  control pollutant levels at a  specific emission
source, buT rather to  minimize potential threats to human health
and the environment from a variety  of potential sources.  This
requires a more comprehensive approach to permitting than is the
case with most other  environmental  permit programs.

     In regard to your specific concerns over the need  to fully
characterize proposed  new units in  a Part B application,  and to

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 in  this  regard.  The owner/onerator has the motion of permitting
 oroposed new units as part of the Part D application, or
 after the permit has been issued through a major modification
 to  the permit.  In either case, however, sufficient  information
 must *e  submitted to enable the Agency to determine  whether or
 not the  unit complies with all applicable standards.  Similarly,
 the contingency olan for a facility must adequately  address
 potential hazards from all oermitted units at  the  facility.  If
 a new unit is added during the term of the permit  '.vhich materially
 increases the potential for hazards, or changes the  resoonse
 necessary in an emergency, the contingency plan must also be
 amended.

     Your letter also specifically expressed your  concern
 regarding the current regulations for permit modifications,
 contained in Subpart D of 40 CFR Part 270.  The Agency recog-
 nizes that the regulations as currently structured do impose
 a substantial administrative burden on both EPA and  facility
 owner/onerators.  It is our hope that a regulatory negotiation
 effort which is now being organized will develop a more
workable aporoach to modifying RCRA permits.  The  regulatory
 negotiation group for this effort has not been selected.  I
 appreciate your offer to oarticioate in this important effort;
 it will  certainly be considered.

     I aporeciate the opportunity to respond to your concerns
with the RCRA permit program.  Please let me know  if I can be
of any further assistance.

                               Sincerely/

                                  Jftfi* ii
                               J. Winston Porter
                               Assistant Administrator

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April 8, 1986                                       9521.1986(03)


Honorable William M. Thomas
House of Representatives
Washington, D.C.  20515

Dear Mr. Thomas:

     Thank you for your letter of February 4 in which you raised
questions concerning the permitting process in the State of
California.  Specifically, you inquired about the processes which
govern the award of permits for new hazardous waste land disposal
facilities and the use of local government permits to prevent
out-of-county wastes from being accepted for disposal.

     States can be authorized under the Resource Conservation and
Recovery Act (RCRA) to operate their State hazardous waste
programs in lieu of the Federal program.  In States that are not
authorized, hazardous waste disposal facilities are subject to
Federal requirements if the wastes they handle meet the Federal
definition of hazardous waste in 40 CFR Part 261.  In those
States, EPA is responsible for reviewing and processing permit
applications in accordance with Federal regulations.  In
addition, disposal facilities in unauthorized States must meet
any State requirement.

     Generally, counties and municipalities may also separately
regulate or issue permits for hazardous waste facilities.  Under
RCRA, political subdivisions of States are expressly authorized
to impose requirements, including those for site selection,  which
are more stringent than those imposed by EPA regulations.
However, they may not impose less stringent requirements.  State
law may also restrict the ability of localities to regulate
hazardous waste facilities and the intrastate transportation of
wastes.  Questions concerning State law should be directed to the
State of California.

     In your second question you solicited EPA's views on a
possible prohibition by Kern County, California on the
importation of hazardous wastes generated outside the county.
RCRA provides that States and localities may impose more
stringent requirements on hazardous waste facilities than those
imposed by EPA regulations.  However, not all more stringent
State or local requirements are valid.  Courts have found that
certain more stringent requirements which significantly affect
out-of-state persons and threaten important Federal interests are
inappropriate for State or local resolution.  For example, under
the Clean Air Act and Clean Water Act, courts have held that
State laws which control pollution which moves interstate can
significantly affect persons in other States.  In some cases,
these restrictions have been held to be precluded by Federal
statute under the Supremacy Clause of the United States
        This document has been retyped from the original.

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                               -2-

Constitution.  In addition, courts have held that State waste
import bans violate the commerce clause of the Constitution and,
therefore, are illegal.  Local requirements on transporters that
unreasonably burden or discriminate against waste generated in
other localities have been declared invalid for the same reason.
Also, where it is physically impossible to comply with both
Federal and State or local rules, the courts have held that
Federal rules prevail.

     In addition, local regulation of hazardous materials
transportation may be preempted by the Hazardous Materials
Transportation Act administered by the U.S. Department of
Transportation (DOT).  The Act provides a procedure whereby
States and localities may seek an advisory opinion on whether a
requirement is preempted.  Your constituents may wish to contact
DOT for further information.

     EPA opposes unreasonable restrictions on the free movement
of hazardous waste which are not related to legitimate health and
safety concerns.  The Agency is concerned that barriers will
prevent shipment of hazardous wastes to the most appropriate
facility for treatment or disposal.  Therefore, EPA discourages
the enactment of restrictions on the free movement of wastes, and
will not grant authorization to a State that bans the
transportation of wastes into or through the State.

     If I can be of further assistance, please do not hesitate to
contact me.

                                   Sincerely,
                                   Lee M. Thomas
bcc: Deputy Administrator
     Assistant Administrator, OSWER
     General Counsel
     Enforcement and Compliance Monitoring
     Region IX
     Regional Operations
     External Affairs/Manson
     Congressional Liaison
        This document has been retyped from the original.

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                                                        9521.1986(04)
        UNITED STATES ENVIRONMENTAL PROTECTION

   .(                    WASHINGTON. DC 20460
I
                                             TME ADMINISTRATOR
  Mr. Alfred  B.  Devereaux,  Jr.
  Assistant Secretary
  State  of Florida  Department of
    Environmental Regulation                 _»,._,  ^^^
  Twin Towers Office Buildinq               £          ";.//
  2600 Blair  Stone  Road                      lulled  \c;ou  U
  Tallahassee,  Florida   32301-8241

  Dear Mr. Devereaux:

      Thank  you for your July 7,  1986,  letter expressing
  concern about  the Environmental  Protection Agency's (EPA's)
  policy for  expanding public involvement opportunities  in the
  Resource Conservation  and Recovery Act (RCRA)  permitting
  program.

      EPA's  public involvement program  is designed to provide
  information and uncover citizen  concerns while there is
  still  opportunity to address them during the permit review
  process.  We encourage the  States to integrate early public
  involvement activities into the  permitting process to  ensure
  responsive  and effective  permitting.

      RCRA and  the Hazardous and  Solid  Waste Amendments mandate
  the Agency  respond to  citizens'  concerns and provide a defined
  role for the public  in the  decisionmaking process.  The
  Guidance on Expanded Public Involvement in the RCRA Permitting
  Program allows great flexibility to Regions and States to
  provide such opportunity  as appropriate in each community.
  This guidance  is  relevant to both new  and existing facilities,
  whether it  is  for closure or operation.

      The) guidance does not  state  that  every RCRA  facility
  must have) an expanded  public involvement program, but  rather
  that specific  facilities  be targeted for expanded public
  involvesjontr and  it provides criteria  for targeting these
  facilities!

      • facilities that receive  wastes from a Superfund  site;

      - facilities that are environmentally significant;

      - facilities that are already controversial or have  the
         potential to become controversial; and

      - facilities for treatment and incineration, existing  or
         proposed.

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     We believe that it is important for the States to aoply
this guidance in administerinq their permit programs.  We
encourage the States to review the permit applications to
discover which are or may become controversial and develop an
expanded public involvement program for those permits.  If
you have any further questions concerning the implementation
of this program, please contact Vanessa Musqrave in the EPA
Permits and State Programs Division, Office of Solid Waste  at
(202)  382-4751.                                           '

                              Sincerely,
                              Lee M* Thomas
 WH-562/MUSGRAVE/D.ZEITLIN/sld/7-23-86/Control No:  AX601099
                382-4651/Due Date:  7-28-86

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                                                 9521.1986UA)
               RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                 APRIL 86
3.  Appeal/Recourse Process for Permit Denial

    An owner/operator (o/o) of an interim status facility is seeking a final
    RCRA permit.  If the o/o submits a complete permit application,  but
    the state or region denies the permit, what procedural recourse  or
    appeal process may the o/o follow?  It appears that Part 124 Subparts
    A and E both state procedures to follow for appealing a permit denial.

         If the o/o of an interim status facility submits all necessary
         information, then a final decision to grant or deny the permit
         can be made.  An o/o wanting to appeal a permit denial would
         follow the procedure in $124.19 of Part 124 Subpart A, which
         addresses recourse for permit denial.  This Subpart contains
         procedures for informal hearings.  Briefly, the o/o has a 30-dav
         period in which he may request a review by serving a notice to
         the Regional Administrator.

         On the other hand, Part 124 Subpart E outlines a more formal anneal
         process for permit or interim status terminations.   Thus, if the
         o/o of an interim status facility fails to submit adequate  infor-
         mation for a final permit application, then its interim status
         could be terminated, and the Agency would follow the appeal
         procedures in Subpart E.  Generally, the formal or "evidentiary"
         hearing of Subpart E is applicable to RCRA facilities only  where
         there has been a termination of a permit based upon a RCRA  violaci-n
         or the termination of interim status based upon a failure to submit-
         information necessary to make a final permit decision.


         Source!    Carrie wehling (202) 475-8067
         Research:  Margaret Kneller

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                                            9521.1986(5A)
           RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                              MAY 86
2. Interim Status and SQGa

   A snail quantity generator (SQG) has been treating hazardous waste on-site
   in conpliance with 40 CFR 261.5(g) since May 1980.  iXiring the month of
   January 1986, the generator produced more than 1000 kgs. of hazardous
   waste, exceeding the quantity limitation for SQGa.  Now, the hazardous
   waste must be managed as large quantity generator waste according to 40
   CFR Part 262.  The hazardous waste must be sent off-site or managed on-
   site at a facility which is RCRA permitted or in interim status.  Since
   the generator has been a SQG up to this point, the generator never
   obtained interim status for his SQG waste treatment facility.  Can the
   generator now obtain interim status in order to continue treating the
   waste on-site?

        According to Section 3005(e)  of RCRA,  any owner/operator (o/o)
        may obtain interim status if  the o/o meets  three  requirements,
        and has not already been denied a permit.   The  first  requirement
        the o/o must meet  is to be in existence on  November 19,  1980,
        or on the effective date of regulatory changes  which  first
        render the facility subject to the permit requirements.   The
        above mentioned generator meets this requirement  because the
        facility was treating hazardous waste  on  November 19,  1980
        even though the o/o was not subject to substantive regulations.

        The second requirement the o/o must meet  is to  comply with
        Section 3010 of SWDA.   Section 3010 required the  o/o of  a
        treatment, storage,  or disposal facility  to submit a
        notification of hazardous waste activity  form within 90  days
        of the date when the hazardous waste first  became subject  to
        regulation.  Because small quantity generators  were exempted
        under 40 CFR 261.5 from the 3010 notification requirement,
        this o/o need not  have submitted a 3010 notification  in  order
        to obtain interim  status per  40 CFR 270.70.

        Finally, Section 3005(e)  requires the  o/o to submit a permit
        aoplication.   Where,  as here,  the facility  becomes subject to
        RCRA permitting due  to changes at the  facility, not regulatory
        action, 40 CFR 270.10 requires the o/o to submit  Part A  of
        the permit application within 30 days  of  the date the facility
        first becomes subject to 40 CFR Parts  265 or 266.

        Source:    Carrie  Wehling  (202)  475-8067
        Research:   Ingrid  Rosencrantz

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                                                                   9521.1986(6.
  Section 3004(u) of RCRA requires owners  and operators  (o/o) of
  disposal facilities seeking a permit to  conduct corrective action  for
  all releases of hazardous waste or constituents from any solid waste
  management unit (SVMU) at the facility.  Are  there any situations  in
  which an interim status facility could avoid  corrective action
  requirements under $3004(u)?

       Any facility that is not required to  obtain  a permit under
       Section 3005{c) of RCRA will not have to meet Section 3004(u).
       Interim status units that continue  operating will generally have
       to obtain permits.

       - However, a permit would not be required  for an  interim status
         facility where all units containing hazardous wastes are
         tanks or containers, if it continued to  operate after  converting
         to generator status and met the accumulation standards in
         40 CFR 262.34.

       Permits will also be required for sore facilities that close
       under interim status.  Under 40 CFR 270.He), sane surface
       impoundments, waste piles, land treatment  units,  and landfills
       ("land disposal units*) must obtain post-closure  permits.

       • No permit would be required for a closing  interim status
         facility that has no land disposal  units.   Units such as
         tanks, containers and incinerators  do  not  require post-closure
         permits.

       ~  7ft* current version of 40 CFR 270.l(c)  requires  post-closure
         permits for all facilities with  land disposal units that
         close after January 26,  1983.  To implement new  Section 3005(i)
         of  RCRA,  EPA recently proposed to change  this requirement  to
5        require post-closure  permits  for all land disposal units  that
M        received waste after  July 26,  1982 (see 51  F* 10706).   EPA is
z        considering a further revision to require post-closure  permits
5        for facilities with land disposal  units that received waste
         after July 26,  1982 or closed  after  January 26,  1983.
         Facilities that woul3~not bs  required to  have post-closure
         permits under these criteria will  not bs  subject to Section
         3004(u).

       Although Section 3004(u) would  not apply  to closing units that
       fall  in these three categories,  EPA could use authorities under
       ths closure regulations and Section  3007  of RCRA to investigate
       ths facility for releases  from  ths closing  hazardous waste
       units.   This investigation could also  extend  to other potential
       sources of contamination at ths  facility, especially if information
       about additional sources were needed to determine  whether the
       closing hazardous waste units ware  ths sources of  any contamination
       found.   This investigation could bs  very  similar to the RCRA
       Facility Assessment  (RFA) required under  Section 3004(u)  for
       permitted units.   It  EPA found a release  of hazardous wasts, or
       hazardous constituents  from hazardous  or  solid wasts, it  could
       order corrective action under ths  interim status corrective
       action order authority  in Section 3008(h).  Section 3008(h)
       orders may bs issued  both before and after  closure.

       Contact:    Tina Kanssn  (202) 382-7706
       Research:   Kevin Weiss/Charlotte Moonsy

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                                                  9521.1987(01)


                             AUG -7 :987
HB/tORAMOUN
Subject)  Therme* energy/Radian'a requeet  for  guidance  on
          the compliance dates  for autwitting  a  Part  •  peralt
          application, issuing  or denying  a  RCRA permit,  and
          complying with the minimum technological
          requirements for aurface Impoundments.

Tot       Hlchjel J. Sanderson* Chief
          tCIA Branch
          BfA Region VII

Promt     Susanne Rudsinskl, Chief
          Aaalstanca Branch
          8 PA Headquarter*
     On July 2, 198? and July 10, 1987 Thermal Inergy/ladian
requested guidance on the regulatory etatua  (t.e.» permitting
requirements) of Thervex'e aenufecturino end  laboratory
faeilitiee located in Haliowell, Caoaaa froai  *>oth the I«M«a
Department of Health and tnvironaent and I9A, reepeetively*
Specifically, Thereev/Kadian hat aaked ue to  identify (1) the
niniani* technology requirenenta (HTt) coopllanee date for
the three aurface iiapoundaenta at the fallow* 11 manufacturing
facilityi (2) the date Theraex muat eubaiit a  Part B application
for the three aurfaee impoundmeata and tank at the laboratory
in order to prevent the loea of interim etatuas (3) the data
that the Kanaaa Department of lealta and environment muat iaaue
a final permit or final permit deniali and,  (4) the date cloaure
of the three aurfaee impoumdmenta muat omgin  if a cloaure plan
is aubmltted by November •• 19B7.
     In reepomee to tmeir first question. Section 3009(])(1) of
the teaomree) Ceawervatlem and teeovery act  (KM) requirea that
all surfaoe tmmotindawnta either meet the miaimun technological
requirement* (MTK) of Section 3004(o)(l)(a) of RCIA by
November •» 19M or stop receiving haaardous waatea.
Sectiom 3009<3)«) of ICMA, however, specifies that any
aurfaee Impoundment brought into the hasardoua vaate managewent

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system* *• • result of the promulgation of additional
hazardous waste listing" or characteristics, a hall have
four years from the date of promulgation of a new haiardoua
waste listing or characterietic to either meat the MTR or
• top receiving hazardous waatee.  The revocation of Thermex'a
temporary exclusion was promulgated on July 17, 1984 (•••
51 PR 25887).  A* a result of the revocation of Thermex'a
temporary exclusion, Thermex'• waste was brought back into
th« hasardous waste management ayataai.  w« a^r«« with
Th«n«z/Radian's interpretation of Section 3005(j)(«) that
revocation of • temporary ezcluaion haa the taae impact a>
brioqio^ a vaate into the eye tea by a new lifting.  Aa a
result* Themex should have four years frc* the promulgation
date of the revocation of its temporary eiclusioa and
final dtnial of iti delisting petition to tither ccnply
with the MTR or to stop receiving hazardous wastes.  The
date by which Theraex mast either comply with the MTR or
•top receiving hazardous wastes, therefore,  is July 17,
1990.
     The second question raised in The neez/Radian's letter asks
by what date must THemex submit a Part B permit application
for the impoundments (at the manufacturing facility) and the
tank (at the laboratory facility) to prevent the loss of
interim status.  RCRA Section 3005(e)(9) doe* not apply to
facilities Having temporary •aclueione.  *e iomg am Ttoerm«x
had originally filed Part A applications for their three surface
Impoundments and for their tank and did not nodify their Part
A applications to delete the units handling the temporarily
excluded waetea, the facilitee have not loet interim status
and no futher action is required by the facilities.  We note
that Part • permit applicatlone for the three surface
impoundments and tho tank are not required until the State or
Region calls in the permit applicatione, however the facilities
are subject to interim status standards until the permit is
issued.

     Their third question asks by what date must the Kansas
Department of Health and Environment (KORZ) issue a final
permit or final permit denial if Thermex submits a permit
application for the •allowell surface inpooaexents by
Hovemtoer §» It8j?.  As indicated above, Thermex ie not
required to smtait a Part 8 permit application unless a
Part • memmlt application is called in by the State or
Region*  fhoold Thermex, however, submit an application on
November 8, 1987, KOBt is not required to process the Part
8 permit application for the Rallowoll surface impoundments
by November 8, 1988.

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     Thermex/Radian's fourth question atka us to identify the
date implementation of closure of the three surface impoundments
must begin after subnittal of a closure plan on November 8,  1987.
Again, as stated in response number two, Thermex does not have to
•ubait a closure plan or implement closure.  If Thermex voluntarily
submitted a closure plan or stopped receiving hazardous waste.
they would, under federal regulations, be required to initiate
Part 265 closure within either 90 days after the surface
impoundments stop receiving wastes or the closure plan is approved
by the State Director or Regional Administrator, which ever is
later.  Closure would then have to be completed within 180 days
(see 40 CFR Part 265.113).  We note that the State Director or
Regional Administrator nay extend the) time) period in which closure
must be implemented or completed if Thermex were to demonstrate
the requirements of 40 CFR Part 265.113(a) or (b), respectively.

     We are not planning on responding directly to Thermex on their
substantive issues, rather we are directing them back to the Fansas
DHE.  I trust you will be conveying our guidance on this issue to
the Kansas Bureau of Waste Management so that they can respond to
Thermex.

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                                     tt
                                               "•~        9321. 1987(03
 DEC  | 5 ;?*7
           \
MEMORANDUM  \

SUBJECT:  Requeued Re-interpretation of On-site
          Treatment Exemption

FROM:     Marcia E. Williams, Director
          Office of Solid Waste (NH-562B)

TO:       Robert F. Greaves, Acting Chief
          Waste Management Branch (3HW30)


    This is in response to your request for a re-interpretation of
the on-site treatment exemption.-  We have reviewed your concerns
regarding our interpretation.  While in general we continue to
believe that treatment in tanks or containers is allowed under
Section 262.34. the questions you posed indicate that the rule as
currently written is unclear and should be clarified.

    1.  General policy.  Although 40 CFR 270.1(C) does State that a
permit is required for treatment, storage, and disposal of hazard-
ous waste, please note that Section 270.l(c)(2)(1) exempts gene-
rators who accumulate hazardous waste on-site in compliance with
Section 262.34 from the requirement to obtain a RCRA permit.  The
exemption does not depend on whether or not treatment is conducted.
The reason for this general policy is as follows.  First, as you
have stated, Section 262.34 does not preclude treatment in
accumulation units.  Also, the performance standards under Part
265, Subparts I and J, apply to the generator's containers and
tanks regardless of whether storage, treatment, or both processes
occur in the*.  In addition, both Subparts I and J contain special
handling requirements for ignitable, reactive, and incompatible
wastes, and these requirements should adequately control treatment
typically conducted in tanks or containers.  Finally, treatment
often renders waste less hazardous, or at least easier to transport
or more amenable for recovery.  For all of these reasons, OSW
believes that treatment is not only allowable under Section 262.34,
but also is consistent with sound waste management.

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                                            o
    2.  Thermal treatment.  YOU raised the concern that generators
could conduct thermal treatment such as detonation or open burning
under section 262.34 and thereby avoid permitting for obviously
dangerous activities.  Certainly, detonation and open burning were
never intended to be allowed under section 262.34.  As7explained
above, a large part of the Agency's rationale in allowing treatment
under Section 262.34 vas that the sane standards would apply for
both treatment and storage.  Thermal treatment is subject to Part
265, Subpart P; so in this case, the standards are not the same.
The regulatory language of Section 262.34 is not clear on this
point, and OSW is considering promulgating amendments to clarify
applicability of the section.

    If you have further questions in this area, please contact
Michael PetrusJca at ITS 475-8551.

cc:  Waste Management Branch Chiefs,
     Regions I, II, and iv-x

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                 UNITED STATES ENVIfONWE-MTAL PROTECTION AGENCY
                                                              9Z"1! ' Q "^ 1 -^ •• i
                                                              3
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                                  - 2 -

    These letters should be received by the regulated community on or
before May 8, 1988.  In authorized States, the letters could
consolidate
the State and Federal permit application requirements so that the
permitting jurisdiction of the two agencies is clear.  (Note that this
requirement to send letters to storage and treatment facilities is
referred to on page 2.1 of the FY 1988 RIP.)

    You should also expect facilities submitting Part B applications
by the 1988 deadline to make a good faith effort to provide complete
applications.  I believe that there are good reasons to require
preparation of a complete application by the 1988 deadline.  For
example, preparation of a complete Part B may initiate actions which
are environmentally beneficial.  These actions include:

         o Precipitation of decisions to close facilities that will
           have difficulty complying with Part 264 regulations or
           that do not intend to upgrade to meet permit standards;
           and

         o Stimulation of applicant decisions to begin improvements.

    I am sensitive to the problems created when applications become
stale during the time they are awaiting processing.  Some of these
problems might be alleviated if an additional letter is sent to
facilities several months prior to the scheduled date of permit
processing.  This will give them an opportunity to amend and update
their Part B before processing begins.  You may wish to consider
trying this approach.

    Thank you for your cooperation in meeting this important deadline.
If you have any questions, please call Frank McAlister at FTS 382-2223.

cc:  RCRA Branch Chiefs,
      Regions I-X

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                                                         9521-. 1989(02
  f
                  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             WASHINGTON, D.C. 20460
                                DEC
MEMORANDUM

SUBJECT:  staying HSWA Permit  Conditions
50UO WASTE ANO £MS<»GENCV 3
FROM:   li Sylvia  K.  Lowrance,  Director
            rfice  of  Solid Waste  (
TO:       Allyn M.  Davis,  Director
          Hazardous Waste  Management  Division,  Region VI

     This memorandum  responds  to your request of  October 26,
1988 for clarification  of  certain issues  related  to the staying
of permit conditions.   You asked us to address  the  applicability
of §124.16(b)(2) to HSWA/RCRA  joint permits.  In  addition,  you
asked whether the Region can and should postpone  the effective
date of the HSWA portion of the permit in each  of the following
cases:

     a.   Where both  the HSWA  portion and the authorized state
          RCRA portion  of  the  permit  were appealed,  the HSWA
          issues have been resolved,  but  some time  will elapse
          before the  State issues are also  resolved and the
          State portion of the RCRA permit  can  become effective,
          and

     b.   Where the State  portion of  the  permit is  appealed
          without any appeal of the HSWA  conditions.

     You explained  that your questions arose  in the context of
appeals of facility permits in authorized States.   We address
your questions below  in that context.

I.  Applicability of  f  124.i6(b)(2).

     Section  124.16(b)(2)  provides that "[n]o stay  of an
EPA-issued RCRA, UIC, or NPDES permit shall be  granted based on
the staying of any  State-issued permit except at  the discretion
of the Regional Administrator  and only upon written request from
the State Director."  In your  memorandum, you suggest that
§124.16(b)(2) was promulgated  before  the  enactment  of HSWA  and
was not intended to apply  to the situation  where  an authorized
State is issuing its  authorized portion of  a  RCRA permit and EPA
is issuing the HSWA portion of that permit.

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     We agree that §124.16(b)(2), along with  its requirement  for
a written request from the State Director, does not apply to
joint EPA-State issuance of RCRA permits  in authorized States.
As you know, under our interpretation of  the  statute and
regulations, only one permit  is typically issued to a facility
under the authority of Subtitle C.  Because most authorized
states are not yet authorized for HSWA, however, the permit
usually consists of a Federal portion (issued by EPA pursuant to
HSWA) and a State portion (issued by the  authorized State
pursuant to RCRA).  The HSWA portion, in  and  of itself, is only
part of the RCRA permit.  It would not qualify, therefore, as an
"EPA-issued RCRA...permit" under §124.16(b)(2).  A different
situation exists in unauthorized States, where EPA issues the
entire RCRA permit (HSWA and non-HSWA portions).  Such a permit
would qualify as an "EPA-is sued RCRA.. .permit11 under
§124.16(b)(2).

II.  Staying of HSWA Permit Conditions.

     In your memorandum, you outline situations in which the
HSWA portion of a permit might become effective before
resolution of an appeal on the State portion.  You express
concern about declaring the HSWA portion of a permit effective
because doing so might cause the facility to  lose interim
status.

     We recognize that problems might arise if facility interim
status were to terminate before a permit became fully
effective.  However, issuance of the HSWA portion of a jointly
issued RCRA permit does not terminate the interim status of a
facility.  Interim status ends when final administrative
disposition of the RCRA permit application occurs.   Thus,
effectiveness of the authorized State's permit decision is a
prerequisite) for termination of interim status.  This will be a
matter of State lav (e.g., whether the State appeal stays the
State permit decision).  If permit effectiveness is stayed
during an appeal as a matter of State law, facility interim
status most likely continues under State law until the entire
State portion of the permit goes into effect.  We believe that
the Region will, in most cases, want to issue the HSWA portion
of the permit and begin corrective action as soon as possible.
This will not jeopardize a facility's interim status should
non-HSWA state portions be appealed.  Furthermore,  corrective
action conditions can become effective when the permit is
"issued"  (per the language in RCRA section 3004(u)),  not
necessarily when all permit appeals are completed.

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     If, for some reason, the Regional Administrator wishes to
delay the effective date of the HSWA portion, as your memorandum
suggests, the ability to do so depends on the circumstances in
each case.  We have, therefore, addressed the issue in the
context of each scenario you present in your memorandum.

a.  Both the HSWA and State RCRA portion of the permit are
appealed (under EPA and State procedures respectively).

     In the first scenario you describe, both the HSWA portion
and the RCRA portion of the permit are appealed and Federal
resolution of the HSWA issues occurs before the State appeal is
resolved.  We believe that, in the course of reissuing the HSWA
portion after an appeal, the Regional Administrator has
discretion to postpone the effective date of the HSWA-portion
under the procedures of §124.15(b)(l) and §!24.l9(f).  It should
be noted that such a postponement may not be necessary in many
cases because we interpret §124.16(a)(2) to mean that
uncontested HSWA provisions that are inseverable from stayed
State provisions art also stayed.

b.  The state portion ia appealed and the HSWA portion is not.

     Under your second scenario, the State portion of the permit
is appealed without any appeal of the HSWA conditions.  In this
case, the Regional Administrator does not have an opportunity to
delay the effective date under either §124.15(b)(2) or §124.19
because the Regional Administrator's final permit decision has
been issued and become effective prior to advent of the permit
appeal.

     This outcome is a function of the nature of the joint
RCRA/HSWA permitting process.  In the case of an authorized
state, where issuance of the full RCRA permit is a combined
action, State procedures must be followed to issue the State
portion and the procedures of Part 124 must be followed to issue
the Federal portion.  While there may be a joint proceeding, two
separate decisions must be made because the State has no
authority to issue the Federal portion or vice versa.  These two
decisions can occur at the same or different times.  In turn,
the State portion must be appealed through state procedures and
the HSWA portion through the procedures of Part 124.  Where
there is no appeal of the HSWA portion, no stay of the HSWA
portion occurs automatically per S124.16(a)(1) as no appeal is
taken under §124.19.  Furthermore, the Regional Administrator's
issuance of the HSWA portion will already have an effective date
specified, per §124.15(b).  Hence, the Region will not have the

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opportunity to alter that date once the final HSWA permit
decision becomes effective, except via permit modification
procedures.  However, the effective date of the HSWA provisions
could otherwise be delayed automatically under 5124.16(a)(2)  if
they are inseverable from stayed RCRA permit conditions.

     I hope this addresses all of your concerns.  If you have
any questions, please call Barbara Foster at FTS 382-4751.
cc:  Michelle Anders
     Fred Chanania

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                                                      9521.1990(01)



           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       MW23B90
MEMORANDUM

SUBJECT:  Splitting a Federal RCRA Permit

FROM:     Dev Barnes, Director
          Permits and State Programs Division

TO:       J&mes Scarbrough, Chief
          RCRA and Federal Facilities Branch, Region IV


     This memorandum is in response to your correspondence, dated
May l, 1990, in which you requested guidance concerning the
proper procedure for "splitting" RCRA permits which were
originally issued for a non-authorized State, when the State has
subsequently become authorized and has issued a "base" permit
identical to the non-HSWA portion of the Federal permit.  We
offer the following suggestions:

     One procedure, which may have some advantages, would be for
EPA to modify the Federal permit and specify an accelerated
expiration date (e.g., 30 days hence) for the entire permit.
Simultaneously, EPA would modify the State permit to incorporate
explicitly the HSWA provisions which were originally in the
Federal permit.  This portion of the state permit would remain
Federally administered.  If the permittee requests the
modifications, both could be Class I modifications according to
40 CFR Part 270.42.  Accelerated expiration is a specifically
listed Class I modification, and the addition of already existing
HSWA permit conditions to a State permit would qualify as Class I
under 270.42(d), since it would not constitute a substantive
change.  The advantage to this procedure would be that only one
permit would remain, thereby reducing any potential confusion.

     Another possible alternative would be simply to modify the
Federal permit to allow for accelerated expiration of the non-
HSWA portion.  The Region would have to be careful to make sure
that only the base portions of the permit were identified and
allowed to expire, and not the HSWA elements.  This would achieve
in effect the same result as the previous option.  However, two
separate permits would continue to exist, at least until the           .
State is authorized for corrective action, at vhieh time the         — I

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY


to incorporate a State-implemented HSWA portion.

     Under either procedure, actual termination of the permit  or
portions thereof, according to 40 CFR Part  124, would be
unnecessary.  Although we believe there is  a potential advantage
to using the first procedure (that is, having a single
consolidated permit), either option would be legally acceptable
and should be relatively straightforward administratively.

     We have consulted with the Office of General Counsel
concerning this issue, and this memorandum  reflects our }oint
wisdom.  If you have any questions, please  call Dave Pagan of  my
staff  (382-4497) or Carrie Wehling of OGC (382-7703).

cc:  Pat Tobin
     RCRA Hazardous Waste Branch Chiefs, Regions I-III & V-X

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9503 - SPECIAL
PERMITTING
UNIVERSE
                 ATKl/l 104/34 kp

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                                                                9503,1985(01)
                               KAY I 0 1985
MEMORANDUM


SUBJECT*  Definition of Mixed Wests  (DOC facilities)

PftOMt   U\John Skinner, Director
          \0ffice of Solid Wests

TOi       JaMS H, Scarbrough, Chief
          Masts Management Division
          Region XV ^


     This is in response to your memo of April 1,  IfSS, concerning
DOB facilities.

     The question of which radioactive  wastes sre  subject to RCRA
control turns on the definition of 'byproduct material" aa defined
under the Atomic energy Act.  Such 'byproduct material* is not sub-
ject to RCRA control.  Radioactive wastes that are not "byproduct,*
i.e., so called "mixed wastes,* sre subject to RCRA control if the
wasts exhibits s characteristic or contains listed vast*,  we have
been discussing this issus with DOC for several months and have
developed, at stsff level, a reasonsble definition of "byproduct
material.*  This definition will be proposed by DOS under Atomic
Energy Act authority.  Subsequently, we will propose administrative
regulatione setting out procedures for  DOC facilities.

     In any event, under the RCRA amendments, fscility owners
and operators of land disposal facilities, including DOB, have
a atatutory responsibility to  submit s  Part • permit application
and certify that they are in compliance with the Interim status
Subpart f requirements (see Section  3005(e)(2)).   Since most
DOC facilities generste end dispose of  non-radioactive hasardous
wsstes  just like other industries, they are subject to this
requirement even if the hasardous wsstes sre combined after
generation with radioactive wsstss which sre not subject to RCRA
control*  However, the requirements of  the statute are not limited
to non-radioactive hasardous wastes, but cover ell hasardoua
wastss under RCRA control.  There is no provision  thst exempts
land disposal facilities holding 'mixed wsstee' from the duty to
comply with Section 3005(e)(2) simply bocsuse DOC  haa not yet
finalised its definition of •byproduct**

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                               •a-


     Until DOC promulgate* the definition of 'byproduct1 Z suggeet
that you us* the staff level definition aa interim guidanoa,  001
haa determined, under that definition, which waatea from each
generating plant are byproducts and which are •mixed waatea*
subject to RCRA control.  We have reviewed those lists and find
them to provide a reaaonable split between wastes that are hasardous
primarily due to radioactivity and those that present primarily a
chemical hasard.  He suggest that 001 facilities proceed to develop
their Part i*s based on these testa.

     To implement.this, we have written a letter to DOB management
advlaing them of their atatutory reaponalbllitiee and auggeatlng
that they proceed in accordance with the draft definition*
Many DOE facilities will be interacting with authorised States
rather than IPA.  Where appropriate* Regions should pass this
information on to thoae States.

     If there are any questions on this matter, call Andre* Marl
(382-2222) or Jon Perry (Ji2-4«MK


cci  RCRA Branch Chiefs, Regions Z • III, V - I
     Office of Federal Activities
     Regional federal Facilities Coordinators,
       Region* X - X

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o                                MAr |C

i

•       Mr.  William A.  Vaughn
•*       Acting Assistant Secretary for
-        Policy*  Safety, and the environment
~       Department of Energy
3       Washington* 0.  C.  30581

*       Dsar Mr.  Vauohni  .
o
£            X am writing to be eure you are aware of certain statutory
x       reaponaibllltiea the Department of Energy (DOE) haa in managing
x       certain waatee under the new amendments to the Resource Conserve*
•£       tion and Recovery Act (RCRA).  Under theee amendments (Section
*       3005 (eH2)) owners and operators of hasardoue waste land diapoaal
2       facilities* by November 8* 1M5* musti
•                 Part 265 (under f26S.140(c> federal fecllitiee

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                               -a-


exempt •• "byproduct materials*.  But it does not appear that In
the near future remaining questions surrounding the definition
of •byproduct* will be fully resolved and the definition proposed
and promulgated under the Atoaiie Inergy Act*

     The November I deadline is rapidly approaching, and developing
permit applications and groundwater monitoring systems that meet
the RCRA requirements are time consuming activities.  Therefore*
•s an interim approach, Z recommend that DOS use the lists of wastes
developed from the staff definition in determining which wastes
and waste management facilities are subject to tCRA regulatory
control for the purpose of complying wit* the November 9 deadline.
Also* many of your'plants generate nonradioective hasardoue
wastes subject to BCRA control*  These weetee and DOS facilities
managing them must also comply with the now amendments to the
statute •

     Many states have been authorises! to manege the permitting
operation.  In those states, you* application should be sent to
the appropriate State agency*  Our regions! offices (conteot list
encloeed) are prepared to counsel your feellities on this matter*
Truett DoGeare (382*2210) is the sppropriete contact on permitting
questions in Washington.  Guidance on the mechanics of certifying
compliance with the Monitoring rules will be issued in the near
future.   Bob Linnett (312-4844) it the appropriate contact should
you have questions in the meantime*

                              Sincerely,
                              Jack w. ftcCrav
                              Acting Aaalatant Administrate*
•moioeure

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                                                               1935(02
        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                    WASHINGTON, O.C. 20460
                        AUG 30  I98S
                                                    Of'ICl O»
                                           SOLID WASTC AMD EMIMGENCV
MEMORANDUM

SUBJECT:  Regulation of  "Mixed  Wastes"  at DOE Facilities
       /                   '•'!//
       -^ John H. Skinner/'/'   /
          Director       if r i r, *\>
          Office of Solid Waste
TO:       James H. Scarbrough
          Chief, Residuals Management  Branch
          Waste Management Division, Region IV
     The purpose of this memorandum  is  to  respond  to your
request for guidance on the ability  of  States and  Regional
Offices to regulate "mixed wastes"  (those  wastes which have
both radioactive and hazardous characteristics* but which
are not "by-product" material) at DOE facilities.

     The first issue is whether States  are authorized to
handle mixed wastes.  The answer is  that they are  not.  A
State may of course regulate mixed waste pursuant  to State
law, however, such regulation is not part  of the authorized
State RCRA program.  When a State applies  for authoriza-
tion to operate its RCRA program, EPA reviews each portion
of its program to ensure that it is  equivalent to  the
Federal requirement.  Because EPA had no interpretation on
the radioactive waste exemption, there  is  no way that EPA
could have reviewed the State programs  for equivalence.
when EPA publishes a Federal Register notice explaining
its interpretation of the mixed waste issue. States will be
required to develop equivalent authority,  or, if such
authority ie already part of their hazardous waste program,
they will be required to certify (through  the Attorney
General) that they are interpreting  the radioactive waste
exeoption in the same manner as EPA.  I refer you  back to
my May 1, 1985, memorandum on the applicability of RCRA to
DOE facilities for a more detailed discussion of this issue.

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                            - 2 -

     The next issue which you raise is whether DOE should
be sending Part B applications to various authorities
based on whether the facility handles mixed or RCRA-only
wastes.  I understand your confusion on this issue and will
try to clarify it here.

     For purposes of the wastes that are clearly under RCRA, the
answer here is no different than it is for any facility at this
stage of the RCRA program.  Where a State is authorized for the
RCRA program, EPA and the States are currently involved in issuing
RCRA permits because of joint permitting under the Hazardous
and Solid Waste Amendments of 1984  (HSWA).  Therefore, a complete
RCRA permit application should be sent to both authorities.
For a discussion of this joint permitting process, see RCRA
Statutory Interpretation #5, dated July 1, 1985.  Where EPA
operates the hazardous waste program, DOE should submit only
one application directly to EPA.

     Both EPA and DOE have agreed that RCRA also applies to DOE
facilities handling certain mixed wastes.  Permitting these
facilities is a bit more complicated.  Where a State is authorized
it can issue RCRA permits only for RCRA wastes.  If a State
also has authority under its own laws to regulate mixed waste,
the State portion of the permit will address that mixed waste
although this portion of the permit will not be part of the
RCRA permit.  We recognize the limitations of this approach,
however, we simply do not have the authority to do otherwise;
the State's authorized program operates in lieu of EPA's which
means that EPA cannot issue a RCRA permit covering those wastes
either.  EPA has authority to directly conduct permit activities
in an authorized State only when the regulations governing that
activity derive from HSWA.  The addition of mixed wastes to the
Federal universe of RCRA-regulated wastes is not pursuant to
HSWA.  Therefore* EPA has no authority to permit such activity
in an authorized State.  Until such time as the State is
specifically authorized for mixed wastes, EPA cannot enforce
any State permit conditions relating to such wastes.

     Where the State is not authorized, EPA will be issuing
the permits for mixed waste and these permits will be RCRA
permits.  The) only remaining question, therefore, is how
to define mixed waste.  Although we do not yet have a final
definition of mixed waste (due to remaining questions over
"by-product" material), we recommend that permits be issued
for those mixed wastes which DOE acknowledges are subject to
RCRA, based on waste stream analyses that were generated by
DOE at individual plants.  They were reviewed by the EPA
technical workgroup addressing DOE issues and were determined
acceptable for use in permitting.  You should be requesting
those documents from the specific DOE facilities which you
will be regulating.  You should make sure that the documents
are the original studies that have not been revised since
EPA's review.  Headquarters policy is that where you suspect a

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DOE facility--is handling nonradioactive hazardous waste, you
should proceed with the Part B application unless and until you
are notified by the facility that it does not handle such wastes.
In addition, DOE controlled mixed waste as indicated in the waste
stream analyses i£ subject to RCRA if such wastes are mixed with
RCRA waste after generation, e.g., where the waste is placed in
a RCRA site.

     I have also included a copy of the staff level definition
of by-product material referred to in my May 10, 1985, memorandum
as per your request, however, please realize that it is still in
draft form.  If you have any additional questions on this matter,
please feel free to call Andrea Pearl of our State Programs Branch
at FTS 382-2210.

Attachment

cc:  Thomas W. Devine, Director, Watte Management Division,
      Region .IV
     RCRA Branch Chiefs, Regions I-X
     State Programs Branch, OSW
     Permits Branch, OSW
     Fred Lindsey, OSW
     Jon Perry, OSW

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON. O.C. 204CO
                                              SOUO WASTE AND 6MIHGENCY

                            CEC 2 3  O'SWER Directive  #9503.50-1^(85)
MEMORANDUM
SUBJECT:  RSI Memorandum  for  RD&D  Permits     ~- tfic^-^V

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

TO:       Allyn M. Davis, Director
          Hazardous Waste Management  Division  (6H)


     I am responding to your  memorandum of  November  13,  1985,
which requested policy guidance  on the following issues  pertaining
to RD&D permits.
1 .  May an RP&P P*rmitt9< who £oll*ct« hazardous  wast*  from a
generator who does not have a TSD  RCRA permit,  return the  unused  or
reduced part of the waste to that  generator  after experimentation?""

     Although the Agency may modify or waive permit  application
and permit issuance requirements to expedite the  permitting  of
RD&D activities, there is no authority to  modify  or  waive  the
requirements pertaining to shipping hazardous waste  from an  RD&D
facility.  Waste shipped from an RD&D facility  must  be  manifested
and go to a facility with a RCRA TSD permit.  The RD&D  facility
could  arrange for the generator's transporter  to pick  up  the
unused and reduced portions of waste and take it  to  such a
facility — either the facility normally used by  the generator or
another facility.

2.   80* sftich reporting information should be required  from
permittees* and wno should accept  this information and  in  what
torn?

     The reporting requirements are determined  by what  information
is necessary for the Agency to ensure protection  of  human  health
and the environment.  Because each RD&D permit  is unique,  the
time- frame for reports and the level of detail  required must be
determined on a case-by-case basis.  Applicants who  intend to
ultimately apply for a full RCRA permit must assure  that their

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procedures meet routinely acceptable research practices, otherwise,
the Agency may not be able to consider their results  in  issuing
the permit.  When Regions receive  information on  the  results of
experiments, this information should be submitted to  Art Glazer,
Program Manager, Permits Branch.   This information will  then be
shared with other EPA Headquarters staff and ORD  to assist  the
Agency in developing permit standards and analytical  methods for
new techniques and processes, and  to assist the Agency's research
efforts.  There is no set form for submittal of information, except
that the information must be legible and the results  clear.

3.   If the permittee wants to test more than one machine/  whether
or not~they are similar or modified/ is a permit required for
one set-up or is it for an entire  experimental process?  When a
permittee is finished with one machine, he may want to decon-
taminate and dispose or sell it, but then he wishes to continue
similar experiments.  Is this considered partial closure of an
RDtD permit?

     RDfcD permits should cover all experimental processes to
minimize the need for permit modifications.  The permit applicant
should identify, as best they can, all potential alterations or
additions to their experimental equipment and this information
should be covered in the permit.   Given the uncertainty with
RD4D activities/ we see no problem with.-including conditions in
the permit to cover activities that could potentially occur but
do not actually happen.

     Decontaminating and disposing or selling one machine/  when
other equipment is still operating/ should be considered partial
closure of the RDtD facility.  Sine* an RDtD facility is required
to have a closure plan/ the permit should address procedures to
partially cloee.  Permittee* should be required to decontaminate
equipment which will be sold.  The procedures for decontamination
should be specified in the permit.

4.   Ha« any decision regarding mobile RDtD units been made?

     Not at this tiae.  As you may know/ we have  formed a workgroup
to develop recommendations for expediting the permitting of mobile
treatment units/ including RDtD activities.  Me expect to issue
a set of draft recommendations to  the Regions for comment in a
month or so.  In the meantime if you have specific questions on
permitting mobile units or wish to provide your thoughts on the
issue please contact Art Glazer on 382-4692.

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     If you have any further questions on permittina RD&D  f,,.,•!•,.•
please contact Art Glazer on 382-4692     ^^itcing RD&D  facilities

cc:  Peter Guerrero
     Bruce Weddle
     Art Glazer
     William Rhea
     Permit Section Chiefs Region l-v, vil-x

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                              NMENTAL
                            OB 2406
MEMORANDUM
SUBJECT:  RDiD Permit for a Sludge Drying Process  in  a Wastewater


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

TO:       Allyn M. Davis, Director
          Hazardous Waste Management Division (6H)
          Region VI

     In your letter of November  IS, 1985, you requested written
confirmation that the use of a sludge drying unit, manufactured
by Water Management, Inc., at facilities with a vastewater
treatment unit, would not jeopardize their exemption  from RCRA
permitting.  The sludge dryer is intended to further  reduce the
volume of sludge requiring disposal.

     If the sludge drying unit is a tank, as stated in your
letter, then persons who are currently exempt from RCRA permit
requirements under 40 CFR $270.l(c)(2)(v) because they have a
wastevater treatment unit, will continue to be exempt from RCRA
permitting if they use this sludge dryer.  The Agency has clari-
fied the definition of "tank", for the purposes of the wastewater
treatment unit definition in $260.10, to cover unit operations
which are not obviously tanks such as presses, filters, sumps,
and many other types of processing equipment. (See attached
memorandum dated July 31, 1981 from John Lehman to Richard Boynton,
•Suspension of Regulations for wastewater Treatment Units.")

     I understand that the intent of the sludge dryer is to
assist metal finishing industries, who have wastewater treatment
units, to s»et the waste minimization requirements of the new RCRA
S3002(b).  You should advise Water Management, Inc. that although
their potential clients will continue to be exempt from RCRA permit
requirements, their clients must comply with the RCRA manifest
requirements of 40 CFR Part 262  for generators.  Also, they must
comply with 40 CFR Parts 261-263, as appropriate.  The clients will
need to sign the RCRA manifest for off-site shipments of the residue
resulting from the use of the sludge dryer, including the waste-
minimization certification statement on the- revised Uniform
Hazardous Waste Manifest Fora (see 50 FR 28744-46, July 15, 1985).

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The client must also submit a biennial report to the Regional
Administrator which includes a description of the efforts under-
taken to reduce the volume and toxicity, as well as a description
of the changes in volume and'toxicity of the wastewater actual!/
achieved during the year, by comparing it to previous years
(§262.41, 50 ££ 28746, July 15, 1985).

     Since the sludge drying unit is intended for use by persons
with wastewater treatment units, and the facilities with these
units are exempt from RCRA permitting, it is unclear why Water
Management, Inc. wants a research, development, and demonstration
permit to test the unit.  You should discuss this issue with
Water Management, Inc. to determine if you should spend the
resources on processing their permit application.

     If your staff has any further questions on this matter,
please have them contact Nancy Pomerleau at (PTS) 382*4500.

Attachment

cc:  Bruce Weddle
     Jack Lehman  (WH-565)
     Irene Homer (WH-S65A)
     Ken Gray     (LE-132S)
     Peter Guerrero
     Art Glazer
     Nancy Pomerleau
     Tina Parker (WH-562)
     William Rhea, Region 6
     Hazardous Waste Division Directors,  Regions I-X

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                UNIT! 0 STATES ENVIRONMENTAL PROTECTION ACCNCY
                              WA1H.N8TON. O.C. 104
                                                                 9503.51-1A
                                                                 Attachment
                                   -U. 3 I 1981
                                                        •QUO WATTI AMO iwiftciscv 4u*o»ti
Uchard C. Joyatoa, Chief
Paraita Development Section
U.S. Environmental Protect ioa ifoncy
JOB* F. Eaaftcdy *uiidia«
let torn* Maaeachaaetti  02203

tat  Suspension of lafulatioaft for Vt stave tar Treaeaeat Dnits

Omar Mr. Jo ye ton:

     This litttr responds to jour recent request for aa iatarpretatioa  of  cht
regulation* of November 17, 1980 (43 Ft 76074) vtiich iuap«a4t4 etrtua  require-
•oats of ta« haxardoua v«stt rtfulAtioaa for ovatri «ad op«rttori of vuctvtur  •
er««ca«nt ualu vbara tuea facilities are subject to regulation 
-------
                                     - 2 -
      Ic should b« Mt«4  thrt alifiblt faeilitias mat U fact b« traaclaf
      "
watara" aad aot eoacoatratad ehaaieala or  aoa aquaoua vaataa.  Vhila *• arva aec
            a fotMl  daJiaitioa, «• art iatarpratiaf tha can ce rafar to vaitaa
      ara subitaatlAlly wmtar vlcb entaai&aata aao>atiac to a fav Mreaat it
•eat.  le h«j ban auuaatad chat a form*!  dafiaieiot would ba halpful   Va
eeaaidarlaf addi&f such a dafialtlon to ete fiaal
                    on tha Bwritr 17,  1910 prapeaal also aota4 that IOM
wtear ttMCMnt \aiu do act difcbarfa A  liquid itraaa aad thu« ara aot tubjaet
Cha Glaaa »ata* act.  TOA la eeaflidarl&(  cfeaa«ia< thit 'tubjaet to' laaruia to
ra«ttlatloM fo* «MC«v«tat craaaaat mita aad alaMatary MatttlisatloB oniti
within tte MBR fcv •oatb*.
     If jov b«ra aaj furthar quaitiow, plaaaa do Mt baiitaea to call M or Trad
Uada«7i cha Oapocy Dirl«ioa Dlractor at RS 73f-*US.

                                         Slaetrtl7 yours,
                                        Jote ?. LabHB, Diractor
                                 laiardout • Xadoa trial Vuto Wrliioa
ee:  Daaaia  laubnar             t.  Staa Jotftaaaa
     ZPA,  Ugioa  X              OA Ufioa TI

     Cnoat  lagna              lobart L. Morby
     Z?A Ufioa IZ              0A tefiov TIX
     lAbort L. Allaa            Uwtaaea P. Caada
     ETA Ufioa  XXX             DA Ugiom TLU
     Jaaao  Scarbtoofb           Anald t. Ooa
     ETA Ufioa XV              OA Ufioa XX

     Karl J.  Klofitoch          Uaaaeh D. Faifaor
     ETA Ufioa f               If A Ufioa Z

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                     UNITED STATES ENVIRONMENTAL PROTEC	'
                                 WASHINGTON, O.C. 204(0              9503.
                                            JAN   2
                                                                 0»»IC10»
                                                         SOUO MASTI AND CM|MC«NCr


          C. T. Philipp, P.E.
          President
          Hater Management, Incorporated
          2300 Highway 70 East
          Hot Springs, Arkansas 71901

          Dear Mr. Philipps

               In your letter of December  5,  1985 you requested that  the
          Agency identify the Resource Conservation and  Recovery Act
          (RCRA) status of sludge dryers that are part of a 'conventional
          treatment system* not regulated  by  RCRA.  You  questioned whether
          adding a sludge dryer to a wastewater  treatment unit exempted
          from RCRA permitting will jeopardize the exemption.  The RCRA-
          Superfund Hotline correctly identified sludge  drying for you as a
          treatment process according to the  definition  of treatment  in
'          40 CFR $260.10.  However, when sludge dryers meet the definition
91          of wastewater treatment units, they qualify for the wastewater
          treatment exemption of $$264.Kg) (6),  265. He) (10), and
          270.l(c)(2)(v).  In your case, adding a sludge dryer to treat
          sludge generated by a treatment  system operating under a wastewater
          treatment exemption does not subject the treatment system to RCRA
          permitting.

               As you know, sludge dryers  must meet the  three criteria in
          the definition of wastewater treatment unit in order to be
          part of a wastewater treatment exclusion.  First, the information
          you sent shows that your sludgs  dryer qualifies as a tank as
          defined in S260.10} that is, it  is  designed to contain hasardous
          waste and is constructed primarily  of none art hen materials  that
          provide structural support.  Furthermore, the  Agency has clarified
          the definition of tank—for this exemption—to include unit
          operations] such as presses, filters, sumps; and many other  types
          of processing equipment.  (See the  attached memorandum dated
          July 31, 1981, from John Lehman  to  Region I.)  In addition,
          the preamble of the November 17,  1980, proposed rule (45 PR
          76077*76078) clarified the definition of a wastewater treatment
          unit as followst

               This definition. ..covers. ..the sludge digesters,
               thickeners, dryers and other sludge processing tanks...
               in which hasardous wastewater  treatment sludge is
               treated! and any...tanks used  for the storage of
               such sludge.

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     Second, the sludge dryer  treats or stores a wastevater
treatment sludge which is a hazardous wastt as defined  in $261.3
(i.e., the sludge  itself  is a  listed waste, derived fron treatment
of a listed waste, or is  hazardous on the basis of characteristics
identified in $261 Subpart C).  This means  that the treatment of
sludges generated  from wastewater treatment units is also exempt
from regulation under the RCRA treatment standards.

     Tanks (here a sludge dryer) that do not themselves have any
discharge subject  to regulation under Sections 402 or 307 (b) of
the Clean Water Act, but that  are part of the wastewater treatment
system, qualify for the exemption if other  tanks in the treatment
train have discharges that are subject to these Clean Water Act
provisions.  So the third condition, being past of a wastewater
treatment unit subject to regulation under Stction 402 or 307(b)
of the Clean Water Act, can be met by sludge dryers in  certain
circumstances.  However, as the November 17, 1980 preamble stated
(45 PR 76077), even the proposed regulations.... 'may not provide
adequate environmental protection where treatment of the hazardous
wastewater tends to result in  the escape of hazardous waste
constituents into the atmosphere (e.g., the treatment of highly
toxic volatile wastes in open  tanks).1  Unless the Administrator
promulgates regulations covering wastewater treatment units,
wastewater treatment tanks that qualify for exemption under
current RCRA standards may volatilise their contents and retain
the exemption.

     Sludge dryers may be used as part of a program to meet the
waste minimisation requirements of Section 3002(b)  of RCRA without
requiring permitting if the above conditions are met.   Of course,
although exempted from permitting requirements in the wastewater
treatment units, any hazardous waste sludge) that is removed from
the tanks is subject to applicable regulations under $1260-266,
such a* manifesting off site, permitted storage after 90 days,
and so on*  If you have any additional questions regarding this
exemption for wastewater treatment units, please do not hesitate
to call Irene Homer at 202-312-7917.

                                Sincerely yours,

                                  .  .-.:!.
                              j-J. Winston Porter
                              V Assistant Administrator
Enclosure

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                                  WATER MANAGEMENT, INCORPORATED
                                               2100 HIGHWAY TO (AST
                                             HOT SMIMOS. ARKANSAS MRi
                                                 ISODMJ.MJ1
December 5, 1985
Mr. Lee M. Thomas, Administrator
U.S. EPA
Mail Code A-100
401 M. St. S.W.
Washington, DC  20460


RE:  Sludge Dryers - Metal Finishing  Industry
     Waste Minimization Program


Dear Mr. Thomas:

     As you may know, your Agency notified  industry  in  the  Federal
Register, 7/15/85, p. 28733-34 that Waste Minimization  was  a  definite
goal of your Agency.  We support this  goal.

     There is a definite problem of interpretation that is  delaying
the use of sludge dryers to accomplish waste minimization.  I  hope
that your office can clear this up as  soon  as  possible.  We and many
of our potential customers have contacted the  Hotline and have been
advised that drying is a form of treatment  per Section  260.10  under
RCRA.  This is technically true; however, the  sludge dryer  can also
be considered as an extension of the conventional treatment system.

     I am enclosing several copies of  our sales  literature  on  our
dryer.  Please not* the back page where we  illustrate four  solids
concentration devices in the following order:

     1.  Clarifier to separatt solids  from  water.

     2.  Sludge thickener to seperatt  solids from water.

     3.  Filter press to separate solids from  water.

     4.  Dryer to separate solids from water.

     It is very important that your Agency  define a  sludge  dryer  as
an extension of a conventional treatment system because of  insurance
premiums 1  The minimum cost for liability coverage (40  CFR  264.147)
is $50,000 annual premium.  Therefore, hov  can a generator  purchase
a dryer to save $30,000/yr. in disposal costs  if the regulations
change his generator classification to a TSO classification?   The
goal of waste minimization will be deterred if dryers are classified
as a RCRA regulated unit operation.   Dryers should be regulated under
NPDES or state/local permit regulations.

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Page Two
U.S. EPA
December 5, 1985
     Will you please review this problem and advise me at your
earliest convenience.  It is most important that the personnel
at the Hotline give accurate uniform answers to this question.
                                          Sin
                                          C.T. Philipp, P,
                                          President
CTP/mjt

Enclosures

cc: Marcia Williams,
      Director of Office of Solid Wastes

    Governor Bill Clinton,
      State of Arkansas

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                                                          9521.1991(01)

              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             AU627 1991
MEMORANDUM

Subject:  Potentially Conflicting Regulation of Infiltration
          Galleries by the Office of Ground Water and Drinking
          Water and the Office of Solid Waste

From:     Sylvia K. Lowrance
          Director
          Office of Solid Waste

To:       Frederick F. Stiehl
          Enforcement Counsel for Water

     This is in response to your July 26 memorandum regarding
potential conflicts in the regulation of infiltration galleries
by OGWDW and OSW as a result of our April 2, 1991 Federal
Register notice extending the Toxicity Characteristic compliance
date for certain injection veils.  Apparently, since the
compliance date was not extended for infiltration galleries, our
discussion was construed to indicate that injection wells and
infiltration galleries are mutually exclusive unit types.  As is
explained below, this was not our intention.

     The intent of the extension was to provide relief to
operators of injection wells used in certain hydrocarbon recovery
operations.  Since application of the TC would cause these Class
V wells to become Class IV wells, these beneficial cleanup
operations would be halted in cases where the Class IV wells do
not have UIC permits and where the cleanup operations do not meet
the conditions of Section 3020 of RCRA.  We believed that
owners/operators of these units were in an impossibility
situation—that is, their operation would be in violation of
RCRA, but the continuation of the cleanup was ordered by the
State.  Where the unit was not an injection well, this
impossibility did not exist, since they could continue to operate
the unit under interim status.   For such units (i.e., units
other than injection wells), the extension was not provided.  In
distinguishing between units to which the extension was
applicable  vs. other units, we noted that if the infiltration
gallery met the definition of an injection well, then the
extension would apply.  That is, we recognized that some of the
units identified by the industry as "infiltration galleries" may
meet the UIC program's definition of an injection well and, if
they did, they were included in the extension.  On the other

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

"infiltration galleries"  (e.g., leaking surface impoundments)
were not injection wells and thus were not included in the
extension.

     We believe that this approach is consistent with that of
OGWDW and the Department of Justice, as described it in your
memorandum.  In order to clarify this matter, there are two
apparent options:  we could either issue a clarifying memorandum
to the Regions or publish a short clarification notice in the
Federal Register.  We would be pleased to work with you to
develop appropriate"language to ensure consistency between our
offices.  Should you wish to pursue either of these options, or
discuss another course of action, please contact Dave Topping of
my staff at 382-7737.

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                                                       9521.1991(02)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                           AUS 3 0 1991
                                                      OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT:  Permit Status  of Underground Injection Wells Used in
          Certain Hydrocarbon Recovery Operations

FROM:     Sylvia K. Lowranc
          Director
          Office of Solid-tfas

TO:       James R. Elder
          Director
          Office of Ground Water  and  Drinking Water


     On April 2, 1991, OSW promulgated a  rule that extended the
compliance date for the  Toxicity  Characteristic until  January 25,
1993 for groundwater that is reinjected through injection wells
during certain cleanup operations.  More  specifically,
application to produced  groundwater from  free-phase hydrocarbon
recovery operations at petroleum  refineries,  marketing terminals,
and bulk plants was deferred at the point at  which the
groundwater is reinjected.  Without this  extension,  most
reinjected groundwater from these operations  would have become a
RCRA hazardous waste on  September 25,  1990.

     The basis for this  compliance date extension was  a
regulatory "impossibility" situation  encountered at these
operations.  In many cases, the cleanup/recovery operations were
mandated under State orders but would be  banned under  both RCRA
and UIC regulations unless they were,  among other things,  part of
a cleanup under either RCRA or CERCLA.  The two-year extension
was intended to allow time for the Agency to  develop a mechanism
to permit these wells (as Class IV) upon  the  January 25,  1993
compliance date of the TC.  The purpose of this memorandum is to
ensure that our Offices  work together to  resolve this  situation
before that date.

     In a February 19, 1991 memorandum from Peter Cook to Jeffery
Denit (copy attached), it was stated  that ODW's policy is that
Agency approval of these operations under RCRA or CERCLA
constitutes "authorization by rule" for the Class IV wells
involved in the cleanup.  Since this  may  be- crucial to
establishing the mechanism to allow continued operation of these
operations, we should ensure that the affected programs are
comfortable with this policy and  that it  is legally defensible.
                                                          Printed on Recycled Paper

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     Key issues include the meaning of "approved under RCRA or
CERCLA."  It must be determined whether this "approval" is in the
form of a permit, a written order, or some less formal
endorsement of the operation.  Likewise, the scope of the RCRA
permit-by rule provisions of 40 CFR 270.60 (b), which afford a
RCRA permit to a UlC-permitted injection well, should be
discussed and clarified.  There are also procedural issues to be
addressed, including whether the policy has been subject to
sufficient public notice and comment.

     Depending upon the resolution of these issues, one of
several options may be preferred.  If additional notice and
comment is not required, an explanation of the policy could be
included in an upcoming TC clarification notice planned by OSW.
Otherwise, notice and comment requirements could be satisfied
through an OGWDW rulemaking to codify the policy into the UIC
regulations.

     We look forward to working with you on this issue to ensure
that the purpose of the compliance-date extension is realized.
The OSW lead for this project is Dave Topping, who can be reached
at 382-7737.  Please have the appropriate member of your staff
contact him-at your earliest convenience.

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