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
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HBHOEAHDUM 3 3
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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.
-------
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
-------
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.
-------
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
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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
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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
-------
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
-------
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.
-------
*
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).
-------
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
-------
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).
-------
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.
-------
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.
-------
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.
-------
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
-------
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
-------
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.
-------
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.
-------
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
-------
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
-------
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.
-------
-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.
-------
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
-------
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.
-------
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.
-------
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
-------
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.
-------
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.
-------
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
-------
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
-------
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.
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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*
-------
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
-------
- 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
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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.
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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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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
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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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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.
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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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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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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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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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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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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-
-------
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
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- 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."
-------
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
-------
"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.)
-------
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
-------
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.
-------
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
-------
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
-------
-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
-------
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
-------
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/-.?'}
.Tor-: '.irc.i^ :.". h il lia.r.s, ri rector , •>/
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.
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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.
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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.
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-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?
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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
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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
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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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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
-------
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;
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- 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
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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,
-------
-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
-------
- 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.
-------
-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.
-------
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
-------
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
-------
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
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-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
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-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
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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
-------
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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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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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
-------
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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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.
-------
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.
-------
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.
-------
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
-------
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**
-------
•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
-------
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
-------
-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
-------
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
-------
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.
-------
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).
-------
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
-------
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
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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.
-------
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
-------
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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