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                UNITED   ATES ENVIRONMENTAL PROTECTION  ,ENCY      .9522.1988(02)
                                 MAR
Mr. Die Olsen
General operations Manager
Fenton Company, Inc.
1608 North Beckley
Lancaster, Texas  75134

Dear Mr. Olsen:

    ThanJc you for your letter of February 5, 1988, in which you
requested information on the regulatory status of direct-fired
sludge dehydration equipment that is part of a wastewater treatment
facility.

    Your understanding of the requirements in 40 CFR 270.l(c)(2)(v)
is correct.  Sludge dehydration equipment is excluded from the
Environmental Protection Agency's (EPA's) hazardous waste regu-
lations provided the equipment meets the definition of wastewater
treatment unit as defined in 40 CFR 260.10 and actually is used to
evaporate water from the sludge.  The definition of wastewater
treatment unit includes the requirement that the device meets the
definition of a tank.  We believe that most sludge dryers do meet
the definition of tank.  One such example would be a sludge dryer
integrally equipped with a feed hopper that contains and accumu-
lates waste.  It is, however, important to note that the exclusion
provided by 5270.l(c)(2)(v) does not apply to conventional incin-
erators.  Such devices are subject to Subpart O of Parts 264 or 265
even when part of a wastewater treatment system.

    As we have discussed in recent telephone conversations, there
is some confusion regarding the regulatory status of direct-fired
dryers.  While direct-fired dryers may meet, the current definition
of incinerator, EPA did not intend to regulate dryers as incinera-
tors.  As we have discussed, EPA is developing a Federal Register
notice that will clarify the regulatory status of sludge dryers and
propose to revise the definition of incinerator to exclude sludge
dryers specifically.  We are also proposing a new definition  for
sludge dryers that would cover both direct and indirect-fired
units.

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    This proposal, soon to be published in the Federal Register.
will clarify that all sludge dryers meeting the criteria in 40 CFR
270.1(c)(2)(v) are eligible for the wastewater treatment exclusion
provided the equipment meets the definition of wastewater treatment
unit in 40 CFR 260.10.  Sludge dryers not eligible for the waste-
water treatment exclusion, including direct and indirect-fired
units, would have to comply with the interim status standards of
Subpart P of Part 265 or the permit standards of Subpart X of Part
264 (52 FR 46946, December 10, 1987).

    If I can be of further assistance, please don't hesitate to
contact me at (202)382-7935.

                                     Sincerely,
                                     Mary Cunningham
                                     Chemical Engineer
                                     Waste Treatment Branch
cc: Joe Carra
    Dave Bussard
    Bob Dellinger
    Bob Holloway
    Sonya Stelmack
    Steve Silvennan
    RCRA Hotline
    Incinerator Permit Writers' Workgroup

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                                                          9522.1988(03

                   .0 STAT« ENVKONUKTAL PtOTICT.^ ACfMCY
                         APR 28 1988
MEMORANDUM

SUBJECT:  Review of Shell Oil's Wood River Manufacturing
          Complex - Minimum Technological Requirements
          Waiver Petition, Section 3004(o)(2)

FROM:     James Michael, Chief
          Land Disposal PAT Section  (WH-563)

TO:       Kevin J. Moss
          RCRA Permitting Branch, IL Unit
          Region V


    In response to your March 18, 1988 memorandum, the Land      ~* '
Disposal Permit Assistance Team  (PAT) has completed its review.  V*
of the petition submitted by Shell Oil for its Hood River
Manufacturing Complex for a modification of the minimum
technological requirements (MTR) under Section 3004(o)(2) of
RCRA.

    Our review indicates that the alternative design and
operating practices as presented by Shell Oil, together with
location characteristics will not prevent the migration of
hazardous constituents into the ground water or surface water as
effectively as the double liner and  leachate collection systea
outlined in Section 3904(o)(1)(A)(i) of RCRA.

    Shell Oil has argued that the impoundment for which it  is
seeking the waiver is situated within a larger, engineered
ground-water management systesi beneath the entire Wood River
Manufacturing Complex that prevents the migration of
contamiaaat* beyond the property boundary.  Essentially  the
engine*a«»tsystem consists of an on-site well field that creates
a ranm=4g£djSDjcession to contain and collect any hydrocarbon
prodoct~SlMs7 and soluble contaminants emanating from the
bottom of the) impoundment.  The waiver petition attempts to
provide a detailed description of the ground-water  flow pattern
and demonstrate that the well field will  indeed provide
effective containment.

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                               -2-


     Section  3004(o)(2) authorizes a waiver of the double liner
 and  leachate collection system*requirements only upon a
 demonstration that  a proposed alternative will "prevent the
 migration of any hazardous constituent into the ground water or
 surface water" at least as effectively as a double liner and
 leachate collection system.  Shell Oil's proposal, however,
 specifically allows migration of hazardous constituents into the
 ground water.  The  terra "ground water" in Section 3004 (o) (2) is
 not  qualified by the phrase "beyond the property boundary".  Nor
 is there any evidence of Congressional intent that the terra
 "ground water" means only ground water beyond the property
 boundary.  Surely if Congress had intended such a test for
 waivers of the double liner and leachate collection system
 requirement, it would have stated so clearly.  To the contrary,
 in amending  Section 3004 of RCRA, Congress devised a threefold
 scheme to ensure protection of human health and the environment
 for  hazardous waste treatment, storage and disposal activities.

     The first "line of defense" is the requirement of a liner
 and  leachate collection system to prevent the escape of
 hazardous constituents from landfills or surface impoundments.
 The  second "line of defense" is the requirement for ground-water
 monitoring to detect any failure of such containment device.
 The  third "line of defense" is the requirement to take
 corrective action to clean up any problems resulting from such
 failure.  Containment with collection and removal of leachate
 within the unit to prevent leakage to ground water, as the
 intended purpose of the liner and leachate collection system
 requirement, is supported both by the language of Section
 3004(o)(2) in authorizing waivers of such requirements only for
 methods equally effective at preventing migration to ground
 water, and by the language of Section 3004(o)(5)(B).  That
 section provides that the liner requirements of Section
 3004(o)(1)(A)(i) can be satisfied pending issuance of
 regulations  by construction of a liner system " . . .to prevent
 the migration of any constituent through such liner.  .  ."  Any
 system, therefore, that only controls constituent migration
after it enters ground water cannot meet the equivalency test of
 Section 3004(o) (2N

    The situation outlined by Shell Oil in its petition fully
allows ffltyntlon of hazardous constituents to the ground water
beneath the)  unit and therefore does not prevent the migration of
hazardous constituents "into the ground water."  Moreover/
because migration of hazardous constituents freely occurs with
 respect to such ground water/ the Shell Oil control scenario
cannot be "as effective as" a double liner and  leachate
collection system in preventing migration to  the ground water.

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                                -3-


    We are,  therefore,  unable to conclude that the
    irnAt-ivA  umi 1x4  u»  __  -*f	. .        .    <-"«(. v.ue
                                               .,
hazardous constitutenta  into  the ground  water
                                            "
cc:  Bruce Weddle
     Suzanne Rudzinski
     Chris Rhyne
     Karl Breraer, Region V

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                                             9522.1988(04)
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D.C. 20460
\
MH\/  2 '—                                                  OFFICE OF
                                                   SOLID WASTE AND EMERGENCY

Mr. Ronald T. Taritas
Environmental Technology Corporation
1124 Morse Avenue
Schaumburg, IL  60193

Dear Mr. Taritas:

    This is in response to your  letter of  September  19,  1988  in
which you raise several questions  about  permit  requirements  as
they relate to on-site treatment and wastewater  treatment  unit
exemptions.

    Under Subtitle C of the Resource Conservation  and  Recovery
Act (RCRA), the scope of the RCRA  permit requirements  are
detailed in 40 CFR Section 270. l(c).  A  RCRA  permit  is  required
for treatment, storage, or disposal of any hazardous waste.
Treatment, storage/ or disposal  of hazardous  wastes  are  defined
as hazardous waste activities  in 40 CFR  Section  260.10.

    Specific exclusions to the RCRA permit requirements  are
found in 40 CFR Section 270.1(c)(2).  Generators that
accumulate hazardous waste on-site in compliance with  40 CFP
Section 262.34 are exempt from the reauirement  to  obtain a RCRA
permit, as specified in 40 CFR Section 270. l(c) (2 ) ( i ) .   The
Agency currently interprets this regulatory exemption  from
permitting to cover storage and  treatment  activities in  a
generator's accumulation tanks or  containers.   The reasoning
behind this policy can be found  in Office  of  Solid Waste (OSW)
memoranda dated June 17, 1986  and  December 15,  1987  (copies
enclosed), and preamble language in 51 FR  10168, March  24,
1986.

    As I understand your letter, you are interested  in applying
the on-site treatment exemption  for generators  to  the  ribbon
blender unit that stabilizes the listed  P006  sludge, and
possibly to the filter press,  as well.   It is important  that
you understand that this response  is only  dealing  with a
theoretical situation since the  final determination  as to
whether and which RCRA regulations apply is facility-specific
and, thus, must be made by the appropriate EPA  Regional  Office
or authorized State.  In the following discussion, I will  deal
with your Generators A and B separately.

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                               -2-
Generator A

    Your description of Generator A did not include enough
detail to determine which RCRA regulations are applicable.  One
possibility is to assume that every unit at the facility meets
the definition of a wastewater treatment unit per 40 CFR
Section 260.10.  If this is the case, the on-site treatment
exemption for generators is not relevant since Part 264
standards (i.e., Subpart J—Tank Systems) and Part 270 permit
requirements do not apply to owners and operators of wastewater
treatment units, in accordance with 40 CPR Sections 264.Kg)(6)
and 270.l(c)(2)(v), respectively.

    For the above assumption to be correct, however, Generator
A's wastewater treatment plant must be subject to regulation
under either Section 402 or 307(b) of the Clean Water Act.  In
addition, each unit at the facility must either treat or store
hazardous wastewater or hazardous wastewater treatment sludge
(listed waste F006) and each unit on-site must meet the
definition of a tank in 40 CFR Section 260.10.  If material
entering the filter press from the wastewater treatment plant
is identified as a wastewater, rather than a wastewater
treatment sludge (listed waste F006), the wastewater must
exhibit a characteristic of a hazardous waste, such as EP
toxicity for lead, cadmium, or chromium, to be identified as a
hazardous wastewater.  The Agency defines wastewaters as wastes
that contain less than 1% total organic carbon and less than 1%
total suspended solids (i.e., total filterable solids).
See 53 FR 31145, August 17, 1988.

    Another possibility is to assume that Generator A's
facility is not subject to regulation under either Section 402
or 307(b) of the Clean Water Act.  If this is the case, no
units on-site are eligible for the wastewater treatment unit
exemption.  All units not meeting the definition of a
wastewater treatment unit could be regulated as generator
accumulation tanks or containers, depending on when the
wastewater is identified as a hazardous waste,  if the
wastewater can be identified as a hazardous waste at its point
of generation, the 90-day accumulation time period begins when
the wastewater first enters the first unit (90-day accumulation
tank or container) at the facility.  Shipment of the stabilized
(as specified in your letter) hazardous waste from the ribbon
blender must take place within 90 days of the beginning point
mentioned above.

    A final possibility is to assume that all units on-site can
be identified as wastewater treatment units except for either
the filter press or the ribbon blender.  This condition could
only exist if either the filter press or the ribbon blender
does not meet the definition of a tank (e.g., container)  in 40
CFR 260.10.  This scenario becomes much more complicated and

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                               -3-
would best be answered by the appropriate EPA Regional Office
or authorized State based on the specific facility design and
operating parameters.

    in any case, all tanks or containers at the facility must
be in compliance with Subparts J or I, respectively, of Part
265 and Generator A must also comply with Subparts C and D of
Part 265, as well as Section 265.16, as specified in 40 CFR
Section 262.34.  In other words, Generator A must be in
compliance with all the time-frames and technical requirements
outlined above and detailed in Section 262.34 to utilize the
on-site treatment exemption for generators.

Generator B

    Based on the information provided in your letter, the
treatment of the listed waste K061 in the central accumulation
tank would not require a RCRA permit provided the following
conditions are met.  First, from the moment Generator B places
the K061 in the central accumulation tank, the K061 must be
shipped off-site within 90 days.  Second, the accumulation tank
must be in compliance with the technical standards for
hazardous waste tanks in Subpart J of Part 265.  Third,
Generator B must comply with Subpart C. Preparedness and
Prevention and Subpart D, Emergency Procedures, of Part 265.
Finally, all other regulatory requirements in 40 CFR Section
262.34 must be met by Generator B.

    I want to reiterate that the above discussion addresses a
theoretical situation.  Facility-specific determinations as to
the applicability and extent of regulation under RCRA must be
made by the appropriate EPA Regional Office or authorized
state.  As you know, an authorized State may have more
stringent regulations than those of the Federal government.

    If you have further questions or need additional
clarification, please contact Steve Cochran at (202) 475-8551.

                                        Sincerely-
                                        Sylvia K. Lowrance
                                      ' Director
                                        Office of Solid Waste
Enclosures

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   .^^
(55)
                                              9522.1988105)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
           WASHINGTON. D.C. 20460
  UflV 3 n                                             SOUD VVASTE ANO
Mr. Ronald B.L. Jones
Environmental Consulting
15 Hollow Road
Watertown, Connecticut  06795

Dear Mr. Jones:

    In your  letter  of October  24,  1988,  you  requested  information
on the December 1,  1987,  Codification  Rule  (FR  45798 and  45799),
as it applies to  interim  status  surface  impoundments and  waste
piles that had "clean closed."   The  following  information should
answer each  of your specific questions.

o   The  time period during  which a RCRA  Part B  post-closure
    permit must be  obtained for  a  unit that  received hazardous
    waste after July 26,  1982  and  has  closed under  Part  265
    rules:

      The EPA Regional  Office  or the State Agency responsible
      for the Subtitle  C  program,  if authorized for this  aspect
      of the program, will  request you to submit a  RCRA  Part B
      permit application  for these units.  This is  done  on a
      priority basis, with  the units at  facilities  that  pose
      the greatest  environmental risk  being  reviewed first.  An
      application for a post-closure permit  must be submitted
      to the agency within  6 months  of the request.

o   The  time period during  which an  owner or operator  of  a
    waste pile that "clean  closed" under Part  265 may  petition
    the  Regional  EPA Administrator for an equivalency  waiver
    to the Part 264 clean closure  requirements:

      The procedures for  such  a  petition are described in 40 CFR
      270.1(c)(6),  a copy of which is  enclosed. The owner or
      operator who  wishes to submit  an equivalency  demonstration
      is urged .to do so before the Part  B permit application  is
      requested,  since  submitting  this demonstration will not
      exempt the  owner/operator  from having  to  submit  the
      requested RCRA Part B post-closure permit application.

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                              - 2 -
      Since processing an equivalency demonstration and
      reviewing the data submitted to support the demonstration
      may be-time consuming, it may not be possible for the
      responsible agency to make a final determination on the
      petition during the six month period prior to the date
      that the permit application is due.  The owner or operator
      should not therefore await such a determination prior to
      initiating the required permit application when requested.

o   Does EPA have any guidance on equivalency demonstrations:

      At the present time, my staff is preparing a policy
      directive that will explain in more detail what we will
      expect from an owner or operator who submits a petition
      to demonstrate equivalency with Part 264 clean closure
      requirements.  I expect to have a completed policy
      directive by early January 1989.  When it is available,
      you can receive a copy by contacting the Regional EPA
      Waste Management Division office.
    How can I obtain a copy of the
    Closure Guidance Document":
'Surface  Impoundment Clean
      The draft document is under internal review at this time.
      Therefore, it is not available for public distribution.
      We will announce the availability of this guidance when
      it is completed in the Federal Register.

    I hope the above information has adequately answered your
questions.  If there is any further information that you may
need, please call Lea Otte of my staff at (202) 382-4654.

                                    Sincerely,
          Lowrance
          Solid Waste
                                    Sylvia K.
                                    Director
                                    Office of

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                                                      9522.1990(01
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D.C. 20460
                              JAN 2 6 1990
                                                           OPrlCE OF
                                                   SOLID WASTE AND EMERGENCY RESPQNS
John A. King, Director
Washington Programs
Tricil Inc.
1155 Connecticut Avenue, N.W.
Suite 300
Washington, D.C. 20036-4306

Dear Mr. King:

     In your letter of November  15,  1989, you  inquired  about the
administration of Federal and State  permits issued to the  Earth
Industrial Waste Management  facility in Tennessee.  As  you stated
in your letter, in September 1984 EPA issued a RCRA storage     ,v
permit and in January 1985 the state of Tennessee granted  a state
storage permit to the facility.  Tennessee received RCRA
authorization in February 1985.  You asked several questions
about the enforcement and administration of the permits, which
are answered below.

     In your first question, you ask what effect the Federal
permit has in an authorized  state.   The Federal permit  remains in
effect even though the state was subsequently  authorized.   In
fact, it is only the Federal permit  which gives the facility the
authority to operate under RCRA; the state-issued permit was
issued prior to the state being  authorized for RCRA, and
therefore does not satisfy the RCRA  requirements.  Therefore,  it
would be inadvisable to terminate the EPA permit until  Tennessee
has a RCRA permit in place.  EPA encourages states to take over
the responsibility for the administration of existing RCRA
permits after states are given RCRA  authorization.  There  are
several ways the state can become the sole responsible  agency for
the facility's permit, and there is  existing EPA policy on this
matter.  Yon should discuss  such transfer of permit
administration with the state of Tennessee and the EPA  Regional
office in Atlanta.

     Secondly, you ask about the specific state and EPA
enforcement responsibilities for permit conditions.  EPA enforces
the conditions contained in  the  Federal RCRA permit.  The  state
of Tennessee enforces the conditions contained in its state-
issued permit.  Obviously, this  means that the facility is
subject to dual permits which are, for the most part, identical.
Although in such cases EPA and the state agree on a sharing of
their respective enforcement responsibilities  in order  to  avoid
duplication of effort, it is preferable for the state to take

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                              - 2 -

over all of the permit responsibilities, as discussed above.

     Finally, you asked about incorporating some of the interim
status operations at the site into the state permit.  We
recommend that if the state plans to add such operations to the
permit that it first take whatever action is necessary to give
the state administrative authority for the RCRA permit.  Then any
subsequent permit modification by the state will satisfy both the
state and Federal requirements.

     I hope that this response has addressed your concerns.
Please contact Wayne Roepe of my staff at 202-475-7245 if you
have further questions.

                              Sincexely yoursv
                                ,---\n   • '  •
                                    / /

                             ^-Sylvia., K. Lowrance', Director
                              Office of Solid Waste

cc:  Wayne Roepe, OSW
     Wayne Garfinkle, U.S. EPA Region 4

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9523 - PERMITTING
APPLICATIONS
Part 270 Subpart B
                   ATKl/l 104/57 kp

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           UNITED STATES EN VIRCNMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20410

                                                  9523.00-11

                          DEC  10
                                                           of
                                              •OLIO OVASTI AND IMIACCNCV
MEMORANDUM
SUBJECT:  Denial of RCRA Cperating  Pemi

FPOM:     Marcia Williams, Director
          office of Solid Waste  (

TO:       Hazardous Wbste Division  Directors
          Regions  I-X


     A number of Regions have  raised the question  of whether the/
can deny a permit  for the active life of a facility, while
deferring a filial  decision on  post-closure conditions.  The
concern of these Regions is that, once a permit application has
been denied, a post-closure pacnit  can no longer be required.

     Although EPA's permitting regulation* envision only one
approval or denial decision on a permit application, they do not
prohibit the permitting authority from dividing this decision
into two parts, one applying to the active life of the facility
and the other to the poet-closure period.  Consequently, EPA or
an authorized State (unless it has more stringent  requirements)
may deny the active portion of a permit application, pending a
decision on post-closure conditions.  After denial of the operating
portion, the facility would be required to cease receiving
hazardous waste and begin closure.

     If a Region or an authorized State adopts this approach with
respect to a particular facility it should make it clear in its
tentative decision that it is denying the permit only with respect
to the active life of the facility and that the facility is
still required to obtain a post-closure permit.  We recommend
that you include the following information in the Notice of
Intent to Deny with respect to such a facility.

     The tentative decision to deny the permit application runs
     to the active life of the facility only.  The permit denial
     will not. affect the requirement that the owner or operator
     obtain a permit covering the applicable post-closure care
     period with respect to the hazardous waste management units
     for which the permit is denied, in accordance with 40 CFR
     170.l(c).

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                                -2-
             8tatenBnt 8hould b« included, in the final  notice  of


     We will also be proposing to mend §270 lf
regulations to clarify EPA's authority to diCi
in this «y.  The proposal is scheduled for J^
Before this clarification is issued,  you shoSld  i
statement cited above in any Notices  of Intent to
                                                > rtf ^a
                                                        d?*
                                                        In'
                                                        the
                                                          *
Hale      e     P0" "**        P"9e ~t.ct Matt
cc:  RCRA Branch Chief,  Regions I-X
     Bruce Wed die,  OSW
     Matt Hale,  OS1V
     Carrie Wehling,  OGC

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON. O.C. 20460
                       MAR 30
                                                OSWER POLICY DIRECTIV:
                                                No.  9523.00-12
                                                             OP
MEMORANDUM
                                                SOLID WASTE AND EMERGENCY «ESf»O
SUBJECT:  Summary of Permit Assistance Team (PAT) Comments

FROM:
TO:
                             .
          Bruce R. Weddle, Director
          Permits & State Programs Division

          Hazardous Waste Management Division Directors
          Regions I-X
     Attached is the second in a series of periodic reports
which summarize major issues that PAT members have addressed
in their reviews of specific Part B applications, permits/ and
closure plans.  (The first PAT Summary Report was issued on
March 14, 1986. )  These reports cover issues that are of generic,
national interest rather than strictly site-specific interest.
The attached report includes reviews conducted by the Land Disposal
PAT in the first half of 1986.  In order to ensure that the
report reflects current EPA policy and guidance, we obtained
review comments from all divisions in OSW and from the Office of
General Counsel.

     We are in the process of preparing another series of
documents which will summarize PAT reviews of proposals for
Alternate Concentration Limits (ACLs).  These "ACL Fact Sheets"
will describe the setting, issues, and recommendations at sites
where the PAT reviews ACL proposals.  The first ACL Fact Sheet
was issued by Ken Shuster on December 4, 1986.  The Fact Sheets
are. being prepared in response to the ACL Implementation Strategy.
For more information, contact MarX Salee at FTS 382-4755.

     We hope that the recommendations provided in this document
will b« helpful for permit writers encountering similar situations
at other RCRA facilities.  By sharing the PAT's suggestions from
a few sites, we hop* that p«rmit decision-making will be somewhat
easier and faster at many more sites nationally.  We encourage
you to distribute this Report to your staff and State permit
writers.  To make that easier, I have enclosed multiple copies of
the report.

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                                                OSWER POLICY DIRECT IV
                                                NO. 9523.00-12
                              - 2 -
     Attachment A to the report lists the facility names,  Regions
PAT Coordinators, and dates for the reviews summarized in this
report.  Attachment B provides a list of guidance documents and
directives used in preparing the PAT reviews.  Attachment C is a
current roster of the members, expertise, and telephone numbers
of the Land Disposal PAT staff.

     If you have any questions, comments, or suggestions on the
PAT Summary Report, please contact Terry Grogan at FTS 382-4692.
Attachments

cc:  RCRA Branch Chiefs,  Regions I-X
     Permit Section Chiefs, Regions I-X
     Winston Porter
     Jack McGraw
     Tom Oevine
     Marcia Williams
     Jeff Denit
     Bruce Waddle
     Susan Bromm
     Joe Carra
     Sylvia Low ranee
     Mike Gruber
     Tina Parker
     Suzanne Rudzinski
     PAT staff
     Jim O'Leary
     Paul Gas sidy
     Les Otte
     Jon Perry
     Barbara Pace
Lloyd Guerci
Mark Greenwood
Matt Hale
George Garland
Art Day
Bob Tonetti
Jim Bachmaier
Ken Shuster
Sue Moreland (ASTSWMO)
Carrie Wehling
Tina Kaneen
Dov Weitman
Art Glazer
Myles Morse

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                        OF PERMIT ASSISTANCE TE#!  (PAT) OWEOTS


Exenption Requests from Minimum Technology Requirements

1)  Exemption Request under HSWA §3005  (j)(2)

     An existing facility applied for a waiver from the surface impoundment
     double liner requirement of §3005  (j)(l) under the exemption provided in
     §3005 (j){2).  The waiver was requested for a holding basin constructed
     by excavating a depression in natural, low permeability  (1.0 x 10~7
     on/sec or less) site soils.  To receive a waiver under §3005 (j)(2), a
     surface impoundment must have at least one liner that is not leaking
     and meet certain other requirements.  The facility contends that the
     impoundment's native soil foundation constitutes a liner for purposes of
     satisfying §3005 (j)(2).

     Section 3005 (j)(12)(A) of HSWA defines "liner" for purposes of the
     §3005 (j)(2) waiver aa follows:

          A liner designed, constructed, installed and operated
          to prevent hazardous waste from migrating beyond the
          liner to adjacent subsurface soil, ground-water, or
          surface water at any time during the active life of the
          facility.

     A literal interpretation of $3005  (j)(12)(A) precludes the use of a
     native soil foundation as a liner because such a liner is neither
     "installed" nor "constructed".  This reading is supported by the
     legislative history indicating that the liner must satisfy EPA's
     current regulatory standards.  See 129 Gong. Rec. H8142 (daily ed.,
     Oct. 6,  1983).  Based upon the above statutory language and legislative
     history,  only facilities with an "installed" liner will be eligible
     for this exemption and no "tn-situ" liners will be permitted (note that
     a liner constructed by emplacing and recompacting excavated native
     soils may meet this definition if it prevents migration during the
     active life of the facility).

Land Treatment Facilities

U  Compatibility Teat for Combined Waste Disposal

     A desenstration of compatibility is required under $264.282 for any
     new waste that is to be added to an existing land treatment unit.
     This requirement applies even if the new waste has been treated to
     render it nan-hazardous prior to placement in the land treatment
     unit.  The demonstration of compatibility sust demonstrate that the
     new waste will not inhibit the land treatment unit from transforming,
     degrading or immobilizing the waste currently being applied per 264.273(a),
     in addition to showing successful treatment of any newly applied hazardous
     waste in the presence of existing wastes.  See guidance reference 7.


                                    - 1 -

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2)  Waste Minimization Requirements

     Sludge applied to land treatment units must conform to the waste
     minimization requirements of HSWA.  For sludge, waste minimization
     usually requires dewatering. The optimum operation of units located
     in arid climates, however, may require the application of sludge
     with more water than normally remains after dewatering.  Since the
     owner/operator must comply with the HSWA waste minimization require-
     ments only to the extent economically practicable, the PAT has interpreted
     this to mean that the owner/operator must dewater sludge only when the
     water content is in excess of that required for optimum operation of
     the land treatment unit.  The water fraction, once it has been removed,
     among other options, can be delisted (if derived from a listed waste),
     or tested against the characteristics,  or treated and discharged via
     a NPEES permitted system.

3)  Principal Hazardous Constituents

     When identifying Principal Hazardous Constituents (PHC) of land
     treated wastes,  which may be required for unsaturated zone monitoring
     under 264.278(a)(2), it is important to identify all constituents
     that may enter the hazardous waste stream(s) to be land treated.
     This is particularly true at petroleum processing facilities where
     solvents used in cleaning process equipment may enter .the waste streams
     to be land treated.  Solvents used for equipment cleaning can vary
     considerably within a facility and between facilities; the selection
     of FHCs for individual monitoring programs should reflect these
     differences, based on actual solvents used.  Trichloroethylene, a
     cannon solvent,  can bs of particular concern due to its high mobility.

4)  Land Treatment Unit Performance

     The performance of a land treatment unit is measured in large part
     by its ability to degrade* transform or immobilize all hazardous
     wastes applied.   For wastes containing both organic and inorganic
     hazardous constituents, performance cannot bs determined based solely
     upon the ability to immobilize heavy metals.  The ability of the
     unit to degrade and treat organic constituents must also be monitored,
     and the analyses should include all the principal organic constituents
     in the waste.  The Land Treatment Demonstration Guidance (reference 7)
     can assist in determining land treatment unit performance.

5)  Unsaturated Zone Monitoring— Soil Bore Liquid Sampling Frequency

     The) purposes of a lysineter system at a land treatment unit are
     (1) early detection of the transport of constituents or degradation
     products through the unsaturated cons to the ground water, and
     (2) to help monitor the effectiveness of the treatment process.  If
     hazardous constituents are migrating cut of the treatsstnt zone,
     the waste treatment system parameters,  typically including waste
     application ratios, need to be corrected.
                                    - 2 -

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      Guidance  on Unsaturated  Zone Monitoring  (reference  8)  is  available.
      A suggested approach  for scheduling the  sampling of soil  pore  liquid
      at land treatment units  is  to  sample one or  two weeks  after  signifi-
      cant rainfall events  based  upon  the long term, site-specific meteor-
      ology.  Alternately,  because the timing  of sampling is critical, a
      better approach  is to use a tensiometer  to identify the arrival of
      the wetted  front created by the  rainfall or  waste application.  This
      instrument  can be used with the  actual lysimeter system.   As water
      moves through the soil profile,  a tensiometer located  next to  the
      lysimeters  will  indicate when  the wetting front is  at  the depth of
      the lysimeters.  Samples should  be collected at this time to ensure
      that the  sample  is of water and  waste constituents  moving through
      the soil profile and  not stagnant soil pore  water.

Ground-Water Monitoring

1)  Screening of Monitoring Wells

     The proper  screening  of  monitoring wells  is  critical in order to
     determine the presence of contamination. Heavier constituents tend
     to  migrate  and accumulate in the lower parts of an  aquifer. Samp-
     ling and well design  must be able to detect  this condition.  Clay
     and silty clay layers in the saturated zone  should  also be monitored
     since studies have shown that  some organic constituents can migrate
     in  some types of clay soils. The RCRA Ground-Water Monitoring Tech-
     nical Enforcement Guidance  Document  (reference 9) !• finalized and
     covers monitoring well design  and construction.

QA/QC Methodologies

1)  Additional Verification by QC/MS

     QA/QC methodologies are  crucial  to assure that the analytical data
     collected for land treatment demonstrations are as accurate as poss-
     ible.  See guidance reference 7.  When preparing a QA/QC plan for
     organic principle hazardous constituent analysis by the .alternative
     method which uses a gas  chranatograpny/flamt ionization detector
      (GC/FID) instead of the GC/MS  method, the laboratory or owner/oper-
     ator should verify a  certain percentage  (e.g., 10%) of  the initial
     run (and future runs, as necessary) by GC/MS.  This approach will
     corroborate and justify  the us*  of the GC/FID.

2)  Construction Quality Assurance  Plans

     A rigorous construction quality  assurance plan should be developed
     and ispissjsntad to incurs that a completed hazardous waste facility
     meets or exceeds all  design criteria and specifications.  Draft
     Guidance is available for construction quality assurance for land
     disposal facilities (reference 1).
                                    - 3 -

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     Any proposed plan should describe how the required limits of permeability
     will be achieved and maintained during the construction of clay
     layers in liners and caps.  The guidance recommends the construction
     of a test fill using the soil, equipment, and procedures to be used
     in the final construction of the clay layer  in order to assure that
     penneability limits will be met.  The construction of the test fill
     must be as stringent as the actual  liner for the facility.

     Each construction quality assurance plan should identify who will
     conduct (i.e., oversee and perform) the quality assurance measures.
     It is important that the person(s) be qualified and independent of
     the construction contractor to ensure proper placement and representative
     sampling of the liner during placement.

Chemical Compatibility Testing

1)  Method 9090

     The Method 9090 chemical compatibility test  exposes the membrane
     liner materials to the waste or leachate being managed at a facility
     and simulates the conditions expected during the actual use of the
     liner material.  After exposure, the liner material must be compared
     to an unexposed sample of liner material using the physical testing
     described in Method 9090.  The parameters being compared include
     changes in thickness, mass, area, and hardness, and the retention
     of physical properties such as tear resistance and tensile properties.
     The comparison should address any change in  the properties of the
     liner material when compared to the unexposed sample.

     Method 9090 was originally developed to test only liner material;
     however,  it is important that all other man-made materials that
     come in contact with waste or leachate be subjected to the immersion
     test portion of Method 9090.  Other materials that potentially come
     in contact with waste or Leachate are geotextiles,  geogrid and piping
     used in the leachate collection systems.  Directive 9480.00-13
     (reference 10) addresses Method 9090 and provides references for
     the individual tests that these other materials must undergo after
     the immersion teet.

2)  Obtaining and Maintaining Representative Leachate

     Halogsnated organics are one of the most deleterious chemical families
     to high density polyethylene (HDFE).  Vtten performing compatibility
     testing on B»E, the owner/operator must demonstrate that the sample
     of waste or leachate ueed is representative of the waste or leachate
     from their facility and that the proposed methodology ie capable of
     maintaining the concentrations of halogenated and other volatile organics
     actually found in a facility's leachate throughout the test.
                                    - 4 -

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     Because these organic compounds are volatile, care should be taken
     not to aerate the leachate sample.  Since Method 9090 requires long
     exposure time (120 days), loss of volatiles may occur.  This change
     in waste composition may require the waste or leachate to be replaced
     at least monthly in order to maintain representative conditions throughout
     the exposure period.  (Replacement of leachate does not trigger the
     beginning of the 120-day period again.)

Waste Pile Liner Equivalency

1)  The Use of a Concrete Pad as a Liner

     A facility maintains that a concrete pad under a waste pile meets
     the definition of "equivalent protection" under HSWA §3015(a) and
     can be substituted for the liner requirement.  A concrete pad,
     however, fails to meet this definition and the performance requirements
     of $264.251.  Concrete is not impervious.  It has a calculable
     permeability and operations on the pad will likely degrade any
     relatively impermeable coating that may be applied.  Concrete has a
     tendency to expand and crack, allowing the escape of leachate.
     Also,  the chemical compatibility of leachate with the concrete must
     be demonstrated.  Certain leachate constituents (e.g., sulfates,
     acids) may be corrosive to concrete.

Landfill Design

1)  Final Cover Slop*

     Final cover with slopes that exceed the recommended grade may exper-
     ience erosion problems and slope instability.  If th* design slope
     exceeds 3-5%, the applicant should demonstrate that soil erosion will
     not exceed 2 tons/acre using th* USDA Universal Soil Loss Equation
     and my be required to perform slop* stability analysis.  (See
     reference 3 for slop* guidance.)

2)  Waste Settlement

     When calculating settlement of a landfill for final cover design,
     allowance* must be mad* for th* settlement of th* wast* itself.
     Most wast* materials ssttl* and decompose at a greater rat* than
     natural soils used in th* final cower. Organic decomposition will
     consolidat* wast* layers regardless of operational techniques.

3)  Fl«jdbl* Msmbran* Unsr in Final Cover

     An intsrisi status facility proposes to us* a fl*xibl* msmbran*
     liner in the final cover of a landfill with steep slops* approaching
     2tl and a wast* depth of several hundred f**t in seas place*.  Msmbran*
     linsrs are unstable when us*d as a ousycnsnt of a final cover system
     on st**p slopes and my fail catattrophically und*r seismic and
     other stresses in such situations.  Additionally, this unusually
     deep landfill is subject to extreme settlement that will effect
     numerous tears in any conventional flexible membrane liner.


                                    - 5 -

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     Therefore, a flexible membrane  liner  is not recommended under
     these conditions.  Given the site-specific climatic and geophysical
     conditions, an adequately designed and constructed soil-only cover
     should be used for closure of this facility under §265.310.

4)  Foundation Layer of the Final Cap

     A facility proposed a final cap design with a low permeability
     layer constructed out of either contaminated or clean soil.  Since
     this layer must provide long term minimization of the migration of
     liquids, it must be carefully designed and constructed.  Assurance
     of a consistently low permeability soil requires that the soil be
     relatively homogeneous.  Soil contaminated with hazardous constituents
     will likely not be uniformly low in permeability.  In order to achieve
     and maintain consistent low permeability, clean soils should be used
     in this layer.

5)  Leachate Collection System Design

     In order to satisfy the requirements  for landfill design specified
     in §264.301(a), the leachate collection system design should generally
     be based upon realistic infiltration  rates (based upon actual daily
     precipitation data for the area), not the annual average rate of
     infiltration.  This is because  landfill cells are open depressions
     during their active life.

6)  Geotextile Materials

     When geogrid and geotextile materials are specified as part of the
     leachate collection system in place of conventions! drainage material,
     they should be evaluated to assure that they have the equivalent drainage
     capacity of a one-foot layer of compacted sand.

7)  Use of Bern Material from Manufactured Slag

     A facility wishes to construct berms  from manufactured slag.  This
     material should be investigated for the presence of hazardous
     constituents.  Based on the design presented, if any hazardous
     constituents are found, the facility  should be discouraged from
     using this material.  These consitituents may bs detected in the
     ground-water monitoring system, obscuring any releases from the
            in the unit.
8)  Us* of a Composite Primary Liner

     Several facilities have proposed using a "composite" primary liner.
     Directly bslow the primary synthetic liner, these facilities have pro-
     posed adding an additions! layer of either clay or chalk,  this add-
     ition is not specifically required by the Minimum Technological
     Requirements of f3004(o)(l) of HSWA nor is it teusMsiilert in the
     "Double Liner Guidance" (reference 6).  The extra layer has the
     advantage of providing a reduction in leachate movement and extra
     long-term reliability.  Since the extra layer is not prohibited, it
     can be allowed to remain in the design.

                                    - 6 -

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Closure

1)  Closure of a Land Treatment Unit with Vegetative Cover

     Owners or operators of land treatment units must make their best
     effort to establish a vegetative cover.  This can involve the use
     of soil conditioners, fertilizers and irrigation to supply the
     necessary growing conditions.  If the unit is closing under §265.280
     requirements and the owner or operator can show that they have
     tried to implement the vegetative cover without success, they are
     justified in the use of another closure procedure (e.g., clean
     closure or addition of another cover soil) for the site.

2)  Extended Closure Period

     A facility has requested an extended closure period so that the
     facility can continue to receive non-hazardous solid waste in order
     to bring the disposal area up to design grade.  Extended closure
     periods may be approved if:  (l)(i) the partial or final closure
     activities will, of necessity, take longer than 180 days to complete;
     or (ii)(A) the hazardous waste management unit or facility has the
     capacity to receive additional hazardous wastes and (B) there is
     reasonable likelihood that the owner/operator or another person
     will recommence operation of the hazardous waste management unit or
     the facility within one year, and (C) closure of the hazardous
     waste management unit or facility would be incompatible with continued
     operation of the site; and (2) the owner/operator has taken and will
     continue to take all steps to prevent threats to human health and
     the environment from the unclosed but not operating hazardous waste
     management unit or facility, including compliance with all applicable
     interim status requirements ($265.113(b)).

     The facility in question does not meet the criteria in §265.113(b);
     extending the closure period for the purpose of receiving additional
     non-hazardous waste is not necessary to proceed with closure nor
     will it provide any environmental benefit.

Exposure Information and Evaluation

1)  Role of the Agency for Toxic Substances and Disease Registry (ATSHO

     The role of JffSCR is to evaluate human populations with known or
     suepaeted exposure, not to determine if a release has occurred and
     has migrated to potential human exposure points.  It is not necessary
     to refer a facility to JffSR unless a release has occurred and human
     exposure is either suspected or confirmed.  All referrals to ATSEF
     for health 'assessments under RCRA $3019 must be approved by Headquarters.
     Candidates for referral should be forwarded with_the appropriate
     summary report as described in reference 2.  JffSER can provide less
     formal technical assistance or consultation as also described in
     reference 2.
                                    - 7 -

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2)  Exposure Information Reports (EIR)

     In order to adequately review a facility's EIR,  the Part B applica-
     tion and any other documents pertaining to possible releases should
     be examined.  The objectives of these reviews are 1) to identify
     human exposure to releases which may require XTSCR involvement and
     2) to identify potential human exposure to future releases which
     may be mitigated through permit conditions.  Therefore, the EIR
     review process should be closely integrated with ongoing ROIA Facility
     Assessments (RFAs).  Guidance (reference 2) describing the
     procedure for reviewing EIRs is available and should be consulted.
                                    - 8 -

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Facility
            Attachment A
PAT Reviews Included in This Summary
          Region           PAT Coordinator
Ana* Nickel
BKK
Bob's Home Service
Casual i a Resources
CECOS
Chemical Waste Management
Environmental Waste Control
Fondessy
Hess Oil Virgin Islands Corp.
Murphy Oil USA, Inc.
RMT Properties, Inc.
VI
DC
VII
DC
II
IV
V
V
II
VI
VIII
Chris Rhyne
Chris Rhyne
Chris Rhyne
Chris Rhyne
Chris Rhyne
Chris Rhyne
Robert Kayser
David Eberly
Nestor Aviles
Nestor Aviles
Robert Kayser
Review Date

June 1986
December 1985
January 1986
April 1986
December 1985
January 1986
December 1985
April 1986
February 1986
March 1986
April 1986

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                               Attachment B


       List of Guidance Documents Used in Preparing the PAT Reviews

1.   Construction Quality Assurance for Hazardous Waste Land Disposal
     Facilities, October, 1985, EPA/530-SW-85-021.

2.   Procedural Guidance for Reviewing Exposure Information
     under RCRA §3019, September, 1986, Directive Number 9523.00-2A.

3.   Draft RCRA Guidance Document: Landfill Design—Liner Systems and
     Final Cover (Chapter E only); July, 1982.

4.   Criteria for Identifying Areas of vulnerable Hydrogeology Under
     the Resource Conservation and Recovery Act—Statutory Interpretive
     Guidance (July 1986, Interim Final) OTIS Ho. PB-86-224946.

5.   Interim Status Surface Impoundments, Retrofitting Variances, July 1986,
     OTIS No. PB-86-212263.

6.   Minimum Technology Guidance on Double Liner Systems for Landfills and
     Surface Impoundments —Design,  Construction and Operation, Draft
     May 1985, EPA/530-SW-85-013.

7.   Permit Guidance Maiual on Hazardous Waste Land Treatment Demonstrations,
     July 1986.

8.   Permit Guidance Manual on Unsaturated Zone Monitoring for Hazardous
     Waste Land Treatment Units, April 1986.

9.   RCRA Ground-Water Monitoring Technical Enforcement Guidance, October 1986.

10.  Supplementary Guidance on Determining Liner/Leachate Collection
     System Compatibility, Effective Date 8/7/86, Directive Number 9480.00-13.

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         Attachment C                       2/27/87


Land Disposal Permit Assistance Team (PAT)

      Current Organization and Staff
           Assistance Branch
           Suzanne Rudzinski, Chief (382-4761)

Land Disposal Permit Assistance Section
         Terry Groqan, Chief (382-4692)
   .Chris Rhyne (Civil Engineer, 382-4695)

    - Disposal Design fc Operating Stds
      (liners, leachate collection)
    - Liner Compatibility
    - Closures (clean-up standards)

    Bob Kayser (Chemist, 382-4536)

    - Exposure Assessments
    - Chemical Analysis
    - Appendix VIII Monitoring

    Janette Hansen (Geologist, 382-4754)

    - Ground-water Monitoring
    - RFA Technical Assistance
    - Corrective Action Technologies

    Mark Salee (Environmental Scientist, 382-4755)

    - ACLs
    - RisX Assessments
    - Ground-water Protection Regulations

    Dave Etoerly (Civil Engineer, 382-4691)

    - Disposal Design 6 Operating Stds
    - Construction QA; Liquids in Landfills
    - Closures (caps)
    - Surface Impoundment Retrofitting and Waivers

    Amy Mills (Geologist, 382-3298/4692)

    - Ground-water Monitoring
    - Corrective Action
    - RCRA Technical Ground-water Staff Meetings

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                                                        POJCY DIRECTS p

                                                 9523 .00-1
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON, D.C. 20460
                          MAR I 4  I
                                              SOLID WASTt AND CMIMQCSCv
SUBJECT:  Summary of Recent ''ermit Assistance Team
          (PAT) Comments
PROM:     Terry Groga*i, Program Manager
          Land Oisoo&iil PAT Program

TO:       Permit Section Chiefs
          Regions I - X

     The OSW Permits Branch plans to provide a semi-annual report
summarizing major issues that PAT members address in their reviews
of specific Part B applications.  These reports will cover issues
that are of national interest rather than strictly site-specific
interest.  The attached report is the first in this series? it
summarizes generic issues addressed in PAT comments prepared for
nine land disposal Part B applications reviewed during 1985.  We
hope the recommendations provided in this summary of recent PAT
comments will be helpful for permit writers encountering similar
situations at other RCRA facilities.  Therefore,  we encourage you
to share this report with your staff and State permit writers.

     Since this report is the first attempt to derive written
national suggestions from site-specific PAT comments,  we are
very interested in your reaction.  Please let me .know if the
report and current format are useful.  Is the level of detail
provided here adequate?  Would you like to see the original
PAT comments for specific sites or some other form of guidance?

     Attachment A to the report lists the facility names,  Regions,
and PAT reviewers for each application included in this report.
Attachmat B provides a current roster of the members and expertise
of the Land Disposal PAT staff.

ccs  Marcia Williams
     Bruce Weddle
     Jack Lehman
     Eileen Claussen
     Lloyd Guerci
     Peter Guerrero
     Truett DeOeare
     Ken Shuster
     Jerry Kotas
     Sylvia Lowrance
     Mark Greenwood

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                                                9523  . 00-1   4
     SUMMARY OP RECENT PERMIT ASSISTANCE TEAM (PAT) COMMENTS


Sampling Procedures

1)  Filtering Ground Water Samples

     The practice of filtering ground water prior to analysis can
     remove contaminants sorbed onto particulates which can give
     misleading indications of ground water quality.  The
     August 1985 Draft RCRA Ground-water Monitoring Technical
     Enforcement Guidance Document recommends that ground water
     samples collected for metals analysis should be split into
     two portions.  One portion should be filtered through a 0.45
     micron filter and analyzed for dissolved metals.  The
     recommended approach for the second unfiltered portion is to
     use a mild acid digestion method (e.g., Method-3010, SW-846)
     to yield total recoverable metals.   Any difference in
     concentration between the total and dissolved fractions may
     be attributed to either the original metals content of the
     particles or to the migration of dissolved metals onto
     the particles.

2)  Bailers

     The composition of bailers is important when monitoring for
     certain types of constituents.  For example/ brass bailers
     should not be used when sampling for metals because brass can
     introduce metallic ions into the samples.

The Use of Models

1)  Unusual Ground Water Situations

     In situations where aquifers are composed of highly
     stratified sediments or have other unique features, most
     current mathematical models may not accurately predict
     aquifer characteristics*  Therefore, the model used should
     include) a trial-and-error phase, in which computed drawdowns
     ars Bitched with observed field drawdowns.  A recommended
     reference isi Land, Larry P., "Utilizing a Digital Model to
     Determine the Hydraulic Properties of a Layered Aquifer"
     Ground Hater v.15, no. 2 pp 153-159 (1977).


Applying HSWA Corrective Action Requirements to Rsleases
from Process Areas

1)  Interpretation of "SWMU"

     A facility is underlain by contaminated soils and ground
     water resulting from prior releases from process areas.
     Draft policy guidance (January 30, 1985) interprets the term

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                                                   CSWE3 PCUCY ;!.;X£C7|V6

                                                  9523.00-l
                               -2-
   "solid waste management unit" (SWMU) to exclude accidental
    spills from production areas.  However, the contamination at
    this facility appears to be the result of routine,
    deliberate, and systematic discharges from the process area.
    Such deliberate deposition qualifies the process area as a
    de_ facto SWMU.

Request for a Liner Exemption

1)  Liner Exemption Based on Design Concept

     A facility applied for an exemption from the landfill liner
     and leachate collection and removal system requirements of
     S264.301.  The owner/operator claimed that the landfill
     unit will not result in migration of leachate from the unit
     due to its intergradient design.   The unit is located
     within the uppermost aquifer and  the net migration of water
     is into the unit.  Theoretically, migration of contaminants
     out of the unit will be prevented since this is counter to
     the inward flow of water.  However, this design does not
     qualify for a liner exemption, which requires that the unit
     prevents the migration of hazardous constituents into
     ground or surface water at any future tims.  Although the
     net flow of ground water is into  the proposed facility,
     under certain conditions (i.e., when ths waste reaches
     saturation) constituents can bs expected to migrate out of
     ths waste and eventually out of ths unit.

Stabilization of Bulk Liquids

1)  Acceptable Chsmical Stabilization  Tschniquss

     To treat bulk hazardous liquids,  owner/operators must
     demonstrate that ths 'treatment'  applied to ths liquid is
     not absorption.  Chsmical stabilization is ons treatment
     altsrnativs for bulk hazardous liquids.  Stabilization
     technologies commonly ussd includs Portland cement-based
     procsssss and othsr pozzolanic procsssss using lime
     products and materials such as fly ash, ground slag, and
     cemsnt kiln dust.

2)  Demonstrations of Stabilization

     After Chsmical transformation has occurred, ths snd product
     should pass ths Psint Piltsr Liquids Tsst finalized on
     April 30, 1985 (50 PR 18370).  In addition, ths owner/
     opsrator must demonstrate that ths vasts has bssn
     adsquatsly stabilized.  EPA is in ths procsss of
     recommending a performance standard to hslp owners/

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                                                 OSV.cR PCUCY GtfECTIVE

                                               9523 • 00-1
                             -3-

     operators and permit writers determine whether a process
     is "chemical stabilization" (as opposed to absorption).
     This standard uses an unconfined strength test to make
     the determination.  The owner/ operator has the option
     of proposing a different methodology as long as adequate
     stabilization can be demonstrated.

Corrective Action

1)  Regulatory Status of Contaminated Groun'd Water

     John Skinner's memo of December 26, 1984, states that
     contaminated ground water collected and derived from a
     listed waste or hazardous due to presence of.a
     characteristic is a hazardous waste and subject to
     Subtitle C regulations.  Therefore, owner/ operators
     proposing a corrective action such as counterpumping
     must manage such collected ground water as a hazardous
     waste.  The Part B application must include the
     procedures used to manage ground water so that they can
     be evaluated.

2)  Removal of PGP by Activated Carbon

     Passing contaminated water through activated carbon
     usually works well for most organic chemicals. However,
     the applicability of this method for PCP (penta-
     chlorophenol) may be questionable.  The phenolic group
     in PCP is weakly acidic (pKa • 4.7) and PCP will ionize
     in neutral water.  In the ionic form, the compound is
     highly water soluble and its affinity for carbon
     severely reduced*  Specific data must be provided
     (e.g., from bench or pilot studies) that demonstrate
     the applicability of activated carbon in removing PCP.

3)  Permit Specifications

     Corrective) action programs, when warranted for regulated
     land disposal units, must be specified as part of a
     facility's permit.  The permit should include the basic
     measures to be taken for the corrective action, and
     predict when the goals of the corrective action plan will
     be met.  Any future changes in the specifics of the
     corrective action program would entail a permit modif-
     ication.  It is important that the owner/operator
     adequately define the zone(s) of contamination, aquifer
     hydraulic characteristics, and the hazardous constituents
     in the groundwater.  The owner/operator should conduct
     pilot pump tests to verify the performance of any counter*
     pumping installation if necessary.

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                                                  OCY;ES POLICY fl-ravi .•::.

                                                 9523  • 00-1   4
                                -4-

ACL3

1)  Use of Acceptable Surface Water Limits

     when the only exposure to ground water contaminants is via
     surface water, then it is possible to base the ACLs on
     acceptable surface water limits for the contaminants
     present in the ground water and to use a surface water
     dilution factor to derive the ACLs,  The dilution factor*
     however/ must be sufficiently conservative relative to the
     assumed stream flow.   In general,  the owner/operator should
     assume a 7-day/ 10-year low flow.   The dilution
     calculations should only consider  mixing within some
     State-approved zone and will depend on the ground water
     loading to the river.

     Owner/operators intending to us* surface water dilution  in
     an ACL application must prepare a  surface water analysis to
     determine the cumulative impact on the river.   The analysis
     should include upstream, downstream and point  of. discharge
     sampling for the Appendix VIZI constituents present in the
     ground water.

     The actual ground water discharge  to a surface water body
     must be verified by appropriate ground water delineation
     methodology.  It is not sufficient to assume that all
     ground water discharges to a surface water body.  It must
     be demonstrated that ground water  flow does not go under
     and beyond the surface water body*

2)  Potential Point of Exposure

     In an ACL submission/ the applicant must address the on-
     site use of ground water as well as any use downgradient of
     the facility*  Ground water exposure is assuaed to be at
     the facility's waste management boundary unless there are
     use) restrictions on-site.  The fact that ground water is
     not currently used is not sufficient evidence  to assume  no
     potential exposure.  If ground water use restrictions,
     i.e., deed restrictions/ are implemented on-site/ then the
     property boundary is assumed to be the potential point
     of ground water exposure*  If the  point of exposure is at  a
     surface water body/ ground water use restrictions should be
     in effect from the waste management boundary to the point
     where ground water discharges to surface water.

     when calculating exposure through surface water in order to
     determine an ACL/ surface water exposure should be based on
     exposure immediately outside the mixing zone.   Applicants

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                                                 OSWER POLICY i,.,;cw,..

                                               9523 -00-1
                              -5-
     cannot assume that water consumed will be treated prior to
     consumption because the criterion is not technology-based
     and exposure must be estimated adjacent to the mixing zone.
     For surface waters, the potential point of use is at the
     shoreline or area of the waterbody where contaminated
     ground water discharges. The requirement that the point of
     exposure is at the edge of the mixing zone is primarily for
     the protection of the environment/ as the ACL guidance
     stresses the importance of protecting the environment as
     well as human health.  Aquatic toxicity data should be
     compared with human toxicity data to determine limiting
     effects of the constituents of concern.  Information should
     be submitted on aquatic habitats adjacent to ground water
     discharges to the surface waterbody.  Special attention
     should be placed on bioaccuraulation of hazardous
     contaminants by benthic organisms and fishery resources.

3)  Modeling Information Required for ACL Demonstrations

     Modeling degradation and attenuation of constituents
     between hazardous waste management units and a potential
     point of exposure is a valid method for developing ACLs.
     However, all modeling must be substantiated by sufficient
     information and sampling.  Model documentation is necessary
     for most ACL proposals.  For example/ applicants  must
     provide the full name of all models used as well  as
     documentation on why and how the model was applied.

4) Grouping of Toxic Contaminants

     Grouping can mask the effects of individual chemicals.
     In addition, degradation products can be lost in  grouping
     schemes.  Nevertheless, the ACL guidance allows grouping of
     hazardous constituent* in order to simplify the ACL demon-
     stration*  The burden of proof that a grouping of
     constituents is appropriate is on the ownsr/operator.
     Bxpoaurs pathways and metabolic endpoints for each
     constituent sust always be cons idsrsd when determining
     appropriate groupings*  The fats and transport mechanism,
     not concsntration and volume, ars the most important
     factors for choosing the most mobile constituents within
     a grouping.

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                                                    KS POLICY eiSK7,
                                                9523-00-1
                         Attachment A
               PAT Reviews Included in This Sunraty
Facility
ion
Allied Chemical
Chen Waste
Management
Ciba-Geigy
Eaton Corp
G.B. Waterford
Hytek
International
Paper
Pernapott
USPCI
III
IV
IV
V
ZI
X
VII
X
VI
*«-»* wvAjtuinator
Any Mills
Chris Rhyne
Rich Steimle
Any Mills
Any Mills
Any Mills
\%rnon Myers
Robert Kayser
Robert KavMr

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              Attachment B
                                         OSWBtPOJCY DIRECTS

                                        9523  .00-1
           OSW Permits Branch

Land Disposal Permit Assistance Team (PAT)

    0  Terry Grogan, Manager (382-4740)

    Current Staff;

    0  Chris Rhyne  (Civil  Engineer;  382-4695)
         - Disposal  D &  0  Standards
           (liners,  leachate collection)
         - Closures  (caps,  etc.)  •
         - CERCLA sites

    0  Bob Kayser (Chemist;  382-4536)
         - Appendix  VIII Monitoring
         - Waste  Analysis
         - Exposure  Assessments

    •  Nestor Aviles (Chemical  Engineer; 382-2218)
         - Land Treatment

    0  Janette Hansen (Hydrogeologist; 382-4754)
         - Groundwater Monitoring
         - Corrective Action
         - PA/SI  Field Test  and Training

    •  Mark Salee (Environmental Scientist; 382-4740)
         - ACLs
         - Exposure/Risk Assessments

    •  Dave Eberly  (Civil  Engineer;  382-4691)
         - Disposal  Standards

    *  Vacancy (Geologist)


    0 than i

    *  Mickey Hartnett (Environmental Engineer; 382-4755)
         - On detail from  Region IV  to develop program
           for Corrective  Action technical assistance.

    •  Rich Steimle  (Hydrogeologist; 382-7912)
         - On detail to  Ground  water Task Force.

    •  Amy Mills  (Geologist)
         - On academic leave until 1/87.

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, O.C. 104*0

                                                9523.00-15


 MAR 30  !988


 MEMORANDUM

 SUBJECT:  Summary of  Permit Assistance Team  (PAT) Comments

 FROM:      Sylvia  Lowrance, DirectorO^WV^ f^-  ^rt—*-
           Office  of Solid Waste  (WH^T62\      "

 TO:        Hazardous Waate Management Division Directors
           Regions I-X

     Attached  is the third in a series of periodic reports which
 summarize major iasues  that PAT  members have addressed in their
 reviews  of specific Part  B applications, permits and closure
 plans.   (The  first and  second PAT  summary reports were issued
 on March 14,  1986 (OSWER  Policy  Directive No. 9523.00-14) and
 March 30,  1987  (OSWER Policy Directive Mo. 9523.00-12),
 respectively.)  These reports cover  issues that are  of generic
 national interest rather  than strictly site-specific interest.
 The  attached  report includes reviews conducted by the Land
 Disposal PAT  from September 1986 thru April 1987.  In order to
 ensure that the report  reflects  current EPA policy and guidance,
 we obtained review comments from all divisions in OSW and from
 the  Office of General Counsel.

     We hope that  the  recommendations provided in this document
 will be  helpful for permit writers encountering similar
 situations at other RCRA  facilities. By sharing the PAT's
 suggestions from  a few  sites, wo hope that permit decision-
 making will bo somewhat easier and faster st many more sites
 nationally.   Wo encourage you to distribute this report  to your
 staff and  State permit  writers.  To  make that easier, I  have
 enclosed multiple copies  of the  report.
    AttaelmTssmt 1 to the report  lists  the facility names.
Regions, PAf coordinators,  and  dates  for the reviews summarized
in this report.  Attachment B provides  a list of guidance
document* and directives  used in preparing the PAT reviews.
Attachment C provides  information  on  user access to the
Hydrologic Evaluation  of  Landfill  Performance (HELP) Model.
Attachment D is a nemorandurn addressing tho RCfiA regulatory
status of contaminated ground water.

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                                -2-


        you  have
                                           .            °n

Attachments

cc:  ROM Branch Chief,,
      Regions i-x                   PAT Staff
     Permit Section Chief.,         faul Cawidy
      Regions i-x                   L** °tte
     J.  Winaton  Porter              Art Day
     Jack  McGraw                    Jon p«*ry
     Tom Devine                      Jim B«chmaier
     J«ff  Danit                      Hliina Stanley
     Bruce  Weddle                    ifaa Pr i«d««n
     Susan  Bromm                     Tin* K«neen
     Ken Shuster                     Pr*d ch«nania
     Joe Carra                       Mttt Hal«
    Mike Gruber                     George  Garland
    Jim O'Leary                     Terry Grogan
    Suzanne Rudzinski               Tom  K0nB«^y  (ASTSWMO)

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                                           Policy Directive HO.
                   SCTKARY Of PAT REVISESi

                     TABLE OP canons
   Topic

Ground-water Monitoring                      1
Landfill Design                              3
Land Treatment Unit*                         6
Permit Issuance                              9  '
Corrective Action                            10"
MiseellarMou* Topic*                         13

Attachment A:  Lift of PAT Review
Attachment B:  List of Guidance and
               Reference*
Attachment C:  Access to HOP Model
Attachment 0:  Regulatory Status of Contaminated Ground inter

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                                                  Policy Directive MO.  9523.(
                     OP PERMIT ASSISTANCE TEAM (PAT) CWfOTTS


Ground-water Monitoring

     1) (tell Development

          An owner/operator indicated in his/her permit aoplication that
          extracting the required well volumes by bailing prior to samplino,
          removed fine materials that were  'trapped during well installa- "
          tion1.   This sample extraction that occured over a year of monit-
          oring resulted in additional well development.

          Prooer well dtveloonent, as described in the RCRA Ground-water
          Monitoring Technical Enforcement  Guidance Document (TEGD)
          (Reference 11), reouires that the wells be clay and silt free.
          Turbid ground water promotes biochemical activity and possible
          interference with ground-water sample quality.  Turbidity
          readings over 5 ntphelomttric turbidity units (M.T.U.) may be
          grounds for rejecting samples from t monitoring well.  TEGD
          provides a decision chart for turbid ground-water samples.

          The quality of any monitoring data that was obtained fro*
          improperly developed wells is questionable.

     2) ABoropriate Mill Construction Materials

          Several facilities have used polyvinyl chloride (PVT) as
          monitoring well construction material in the saturated zone.

          pvr is  not an inert material and  constituents such as phthalate
          and tetrahydrofuran in ground-water saieles have been attributed
          to PVC  well cuing or pipe solvents.  PVC materials can be
          used, however, in composite mil  construction where PVC or
          other non-inert material is used  above the saturated tone while
          inert materials art used in the saturated com.  The TBGD
          (Reference 11) provides a complete description of appropriate
          monitoring toll construction materials.

              •  facility has alreadv installed wells with materials  that
                      the TBGD requirements, it is not necessary that the
               ^monitoring system be replaced and the data discarded.  %
               rlf constructed and located  comparison well can be installed
          and sampled.  Comparison of data  from the new well with the
          existing data will determine If constituents detected in the
          older wells, such as phthalate, art dua to tht PVC materials or
          to contamination of oround wattr  from other sources.

     3) Calculation of Purge volume

          A  commonly encountered error in sameling procedures involves the
          calculation of the evacuation volume prior to sampling.  The correct
          calculation should include tht volume of wattr in tht gravel pack
          as well as tht volume of wattr in tht casing.  With a small diameter

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                                              Policy Directive NO. 952:
     eating  (e.g. 2 inches), the actual boring may be much larger.  *.,«
     water in the gravel pack can represent a significant percentage of
     tht well volume and should be removed in order to sample the
     aquifer correctly.

4) Appendix  IX

     In the  July 9, 1987, federal Register. EPA promulgated  a new list
     for ground-water monitoring, Apoendix IX to Part 264, which will
     replace the Appendix viii monitoring requirement.   Existing sw-846
     methods are adeouate for the compounds listed on Appendix  IX.
     [See Reference 4 for the final Appendix IX list)

     Appendix IX ifl a lift of chemicals taken from Appendix VTII for
     which it is feasible to analyze in ground-water samples,   in
     addition, Apoendix IX contains 17 chemicals routinely monitored
     in the  Superfund program.

5) Ost of Accelerated Monitoring Schedules          ,

     A facility which was deficient in tht ground-water monitoring
     section of their Part B Application was requested to improve their
     monitoring network by drilling more walls and developing thea
     properly,  once the«* deficiencies art corrected, an accelerated
     ground-water monitoring schedule, sampling four times within four
     months, was recommended.

     This recommendation, which was designed to bring a facility into
     compliance as soon as possible, is in accordance with tht recommend-
     ations  in tht RCRA Ground-water Monitoring Compliance Order Guidance
     (Reference 10).  When scheduling tht accelerated monitoring, the
     facility could schedule one sampling event after a significant
     rainfall, tht second event afttr a dry period and tht remaining  two
     events  can bt interspersed within tht  four month time frame.  At the
     sits in Question, this sampling aches* should allow data  representat.
     of tht  site to bt obtained ouickly.  Mote, however, that  this  type
     of an accelerated sampling scheme mtf-not bt appropriate  for all
     faculties in all locations.
6) "H"***"**** of Ground-water Monitoring networks
                  monitoring networks that will bt used during the life
     «T tht facility and its closure period, will need at least some
     maintenance in order to assure that representative samples are being
     obtained.  Often tht maintenance needed will bt redevelopment of the
     monitoring well.  Ifct  inital  performance of a well should bt determ-
     ined and any< significant  changes over timt may indicate tht need
     for ptriodie redevelopment or a maintence assessment.  In other
     cast*, such as afttr severe damage by accidental or natural occur-
     rences likt floodina,  well replacement may bt warranted.
                              - 2 -

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                                                  Policy Directive NO.  9523.0
          A contingency plan should be prepared by the facility addresaina
          the proposed course of action ahould the integrity of th* monitoring
          wells becone damaged,  The regulationa  (5264.310(b)(3)) clearly
          rewire the owner/operator of a landfill to maintain their monitorirx
          well network during closure period.   However/ appropriate language
          should be included in the permit to make adequate maintenance of the
          systew during the life of a unit and its closure period a permit
          condition.  While not absolutely necessary for enforcement, further
          elaboration of the reouirements will clarify the duties of the
          owner/ooerator.

Landfill Deaicn

     1) Definition of Replacement Onit

          A replacement unit, as defined in the preamble to the final cod-
          ification Rule; Hazardous Mute Management System (50 PR 28706,
          July 15, 1985) is a "unit that is taken out of service and emptied
          by removing all or substantially all the waste from it*  prior
          to being reused.  A facility planned to dewater half of  an interim
          status surface impoundment that is bisected by an underwater dike
          and to route all incoming waste to the southern portion. The
          northern section was scheduled to receive consolidated tsjste
          from several other imooundments and to close as a landfill.
          The northern section, however, meet* the criteria of a 'replace-
          ment unit' since the deposition of the original waste material
          has stopped, substantial dewatering is planned and placement
          of waste from other units is to occur prior  to closure.

          under 53015(b) of HSW, facilities authorized to operate under
          530t5fe) shall be subject to the minimal technological requirements
          of 3M4(e) for each replacement or lateral expansion of an existing
          landfill or surface impoundment.  The north section must be retro-
          fitted to satisfy these requirements before the deposition of the
          waste from other units can begin.

          The southern unit, as an existing surface impoundment, becomes
          subject to the minimum technological retirements and must be
          retrofitted if it continues operation after November 9, 1988
          per fJOOS(j), unless a waiver is obtained.

     2) ooufeli tlaar Waiver Petitions

          Another facility reouested a waiver from the double liner require-
          ment for a new unit based upon Section  3004(o) (2), which allows
          for an exemption to the double liner requirement if "alternate
          design and operating practices, together with location  characteristics,
          will prevent the migration of any hazardous constituents into the
          ground water or surface water at least  at effectively as such
          liners or leachate collection systems*.
                                  - 3 -

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                                                  Policy Directive a,.
          The proposed bottom liner design is a 2-ft layer of com-
          pacted material with 5 x 10-6  cm/sec permeability.  This bottom
          liner design is substandard because it does not meet the requireme
          of section 264.221(c) (3-foot  layer of recompacted clay of at
          least 1 x 10~7 cm/sec permeability).  Since the design does not
          meet the requirements of 5264.221(c), location characteristics
          or operating oractices must compensate for the deficiency, as
          allows* under 5264.221(d).  This unit is  to receive wet sludges anc
          an unusually larqe amount of leachate is  expected.  The owner/
          operator did not present anv operational  reason to grant the
          petition.  Similarly, the location of the unit would not prevent
          mioration of hazardous constituents to the ground water because
          ground water is tvoically near or  at the  surface.  Therefore,
          the PAT saw no compelling evidence that hydrogeologic conditions
          would favor a variance.

          Since this alternate double liner  design  did  not  satisfy the
          f264.221(d) criteria for preventing migration to  ground water
          at least as effectively aa a double liner system  under $264.221(c),
          and location characteristics and operational  practices did
          not compensate for the liner design, the  PAT rmrmaMmteil that the
          petition for a double liner waiver not be granted.

3) Determination of equivalent Liner Design

          The PAT reviewed a proposed double liner  design in order to
          verify that it meets the general minimum  technology requirement
          set forth in Section 3004foHl)(A)(i).  The liner design was
          compared to the interim statutory design found in Section
          3004(0)(5)(B) of BSNA and codified in J264.301(c).

          The comparison was conducted on a layer by layer basis.  The pro-
          posed primary leachate collection system, the top liner and
          the secondary leachate collection system for the facility were
          either identical or exceeded the Agency's rscuaaai'Misd specifications
          for the interim statutory design. The secondary liner system, how-
          ever, varies) significantly from the interim statutory design which
          may be satisfied by at least 3 feet of ID*7 cm/sec compacted clay
          or other natural material. The proposed bottom liner will con-
          slsjt of an tO all high density polyethylene  (HDPf) liner to be
          tajajtlad immediately over an existing ethylene propylene rubber
          (MB* liner and an existing leak detection system. Before instal -
          lattOB of the bottom liner, the EPM liner will be cleaned and
          tut eeas* tasted for leaks.  The BDff liner will form a compression
          fit over the existing liner and its seams will be constructed
          perpendicular to the existing liner'f eeame.

          The interim statutory design  requires that a bottom liner be
          designed, operated and constructed to prevent the migration of
          any constituent through such a liner during  the  operating and post-
          closure monitoring period (*3004(o)(5HB)).  The PAT concluded
          that a carefully constructed  redundant fNL bottom liner should


                                  - 4 -

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                                              policy Directive MO. 95*
      result  in a liner that control* migration as well as, or better
      than, 3 feet of 1 x 10-' cm/aec clay.  AS long as waste/liner
      compatibility ia clearly demonstrated, a system constructed of the
      proposed components was determined to be equivalent to the interim
      statutory design.

4) calculation of Leachate Volume for Collection system Design

      An engineer for a facility desioned the leachate collection system
      for their new landfill based upon leachate volume estimated from
      calculations using Moore's fiauation (see Permit tftritera* Guidance
      Manual  for Hazardous waste Land Treatment, Storage and "Disposal
      Facilities, Reference 7).  While the use of this equation ia ac-
      ceptable, the equation best applies to a long term, steady-state
      impingement rate and not to ahort-tetm storm events.  In order to
      most accurately consider variations in rainfall data such as
      storm events, the HELP (Hydrologic evaluation of Landfill Perform-
      ance) model is preferred.  This model is available to any engineer
      or technically trained individual for evaluating the design of
      leachate collection systems. See Attachment C for information on
      obtaining the user guide and software package.

5) cap Design Modifications

      A facility proposed several modifications to their cap  design spec-
      ifically to reduce erosion potential. The soil layer was increased
      from two feet to three feet.  The increased soil depth, plus the
      presence of a drainage layer and geotextile material, mitigates
      the impacts of frost action.

     The facility also proposed to use roughened HDPf membrane  as the
     synthetic liner over the clay layer in order to  reduce  the potent-
      ial for sliding.  The friction angle betwaen the roughened membrane
     and the clay is 29 degrees, a significant increase over the
     friction angle between a smooth membrane and the clay layer.  A
     potential problem with the use of roughened HDPf membrane is its
     limited rfflsaarrlil availability at thflr time.
            trenches have also been propoaed to tie down the liner,
     filter and drainage layer material for the purpose of increasing
           stability.  The  trenches act aa drainage conduits as wall,
                the efficiency of the drainage system.
6) Qse of a limit Plot  to Support an Alternate Cover Design

     A facility proposed a cap design that is significantly different
     from the racoaaendail  design criteria specified in the July 1982
     Draft Guidance Document;  Landfill Deaioa—Liner Systems and PinaJ
     Cover (deference  2).
                              - 5 -

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                                                  Policy Diraetive NO.  9
          9» final cover, baaed upon the guidance, ehould have two or net
          feet of "aoil capable of euataining plant apecieeV  The facilit
          proposed that the cap will be comprised of 24 inchea of conpacte
          Ponce clay, 18 inchea of contacted caliche and 6 inchea of veget
          ated, unoonpacted caliche,  dllche ia a limestone depoait that
          is found in arid regions.  Thia aoil,  when in contact with moiat
          could harden like concrete and may not austain vegetative growth
          The propoaed plant apecie, weeping lovegraas, ia not indigenoua
          to the area and haa roots up to 18 inchea in length, which ia
          longer than the 6 inch vegetative layer could aupport.
          The beat alternative for thia facility would be to radeaign their
          cap to conform to the apacificationa  in the  guidance.  However,
          they can uae cap components which differ fro* the reoamended
          dtsign if the facility conatructa a teat plot in order to demon-
          strate that the proposed material will aupport & vegetative cover.

     7) Potential for RDPE Failure

          An engineering report prepared for a  landfill liner deaign indicat
          that the material to be used aa a aub-baae under an HPDE liner
          showed differential settlement of up to 1.5  feet over a  horizontal
          distance of 2 feet.
          The engineering report aaaumd that the HDPE membrane could tolerat
          such settlement, but reaearch haa ahown that HOPE liners usually
          fail along a narrow area.  Stretching a localized imperfection,
          such aa a shallow scratch, over the 1.5 feet differential settle-
          ment could reault in a hole in the liner.

          The facility ahould prepare a atable baae under the HPOE liner aa
          required in §264.301
Land Treatment onlta

     1) Mate Characterlsatlon/lftjate Analyaia Plan

          A petroleum refinery ia undertaking a -land treataent demonstration
          but ha* not adequately characterized Itt waate.  A waate analysia
          plaa mared according to the regui reman ta of If264.2?l(b) and
             .m(e)a)(i) «uat include teatiag for Appendix VXXI conttit-
                that art reaaonably expected to be in or derived from the
                  flw wmate analysia plan for refinery waataa ahould
          fnrtuli tatting for the EPA approved  aubaet of Appendix vrir
          eoMtietianU found In petroleum waatea  (e.g., the "Skinner Hat").
          The Permit guidance Manual on Batardoua Maate
          Damonatratlona (Heference 5) ahould be referred to for a complete
          diacuaaion onTthe development of waate analyala plana.  Appendix D
          in reference 5 provide* a copy of  the liat of Apoandix VTII
          conatituenta that may be found in  petroleum waatea.
                                   - 5 -

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                                              Policy Directive NO. 9523.C
 2) Demonstration of Land Treatability

     A facility based its land treatment demonstration on the degradation
     of the oily fraction of the wastes and on the immobilization
     of lead and chromium in the soil.  They did not account for the
     treatment of any other Appendix vm constituents detected in
     their waste.  This same facility only conducted the feasibility
     test program using leachate column tests.  These tests will
     provide information on the loading rate of the soil, but will
     not be able to determine the site/soil assimilative capacity.

     Section 264.272 rewires that the owner/operator aust demon-
     strate that hazardous constituents in the waste can be complete-
     ly degraded, transformed or immobilized in the treatment zone.
     A properly conducted demonstration should evaluate all the pro-
     cesses involved in a land treatment unit including degradation,
     transformation and immobilization.  A toxicity study, which
     identifies toxic loading rates and evaluates the impact of the
     wastes on indigenous soil microorganisms, should.be conducted.
     A transformation/detoxification study, which is also a necesetr'
     part of the demonstration, should provide information on the
     decrease in toxicity of the waste/soil mix to soil eicroe
     over tine.  Reference 5 provides complete information on the
     components of a good land treatment desenstration.

 3) control of Soil Moisture

     A saturated land treatment unit is unable to accept sludge with
     a high Quantity of water since these conditions would promote
     anaerobic conditions in the treatment zone.  These conditions
     would lead to a decrease in microbial degradation of organics
     and the migration of run-off containing large amounts of hazard-
     ous constituents.  An owner/operator at a facility where satura-
     tion of the unit is possibile, even during a portion of the
     year, should conduct studies to measure and control soil moisture.
     A water balance for the facility that accounts for seasonal
     changes should be part of such a study.

4) selection of Principal Haiarrtrnis Constituents  (PBC)

          are defined in 1264.271(a)(2) as •hazardous constituents
               in the Metes to be applied at the unit that are the
     eos* difficult to treat, considering the coebined effects of
     degradation, transformation and immobilization".  Therefore,
     the PBC for any land treatment  unit  can only be selected after
     the completion of an adequately designed land treatssmt demon-
     stration (see previous item 2).   PHCs are those hazardous con-
     stituents  that have the lowest  site/soil assisdlatlve capacity.
     constituents selected should also have a low to eoderate vapor
     pressure to they will not volatilise free) the waste shortly
     after application,  the criteria for the selection of PHCs  is
     covered in Reference 5.
                              - 7 -

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                                              Policy Directive no. 9523.0
 5)  Permitting of Land Treatment units

     After  several years of an on-going land treatment demonstration,
     a facility still has not proven that their unit can degrade,
     transform and immobilize the hazardous constituents in their
     waste.   A satisfactory land treatment demonstration will require
     more effort, time and a large investment by the applicant.

     The land ban restrictions for the 'California List' or 'first
     third' waste constituents will affect most of the current land
     treated  wastes.  Due to the potentially short life of certain
     land treatment units, the owner/operators of units that have
     not demonstrated satisfactory treatment should be requested to
     consider closure of their land treatment unit.  As stated in
     OSWER  policy Directive 9486.00-2 (Reference 6), any Part B defic-
     iencies  should be addressed quickly.  Only one Notice of Deficiency
     should be necessary for the applicant to submit a complete applic-
     ation.   If they are unable to quickly correct the deficiencies,
     the Region should consider permit denial.

6) Presence of High Mater Table in Limited Areas of Unit

     During a land treatment demonstration, a land treatment unit was
     observed to have two central areas that had a seasonal high water
     table  within 3 feet of the treatment zone.  The facility proposed
     to use a pumping system to lower the water table.

     While  the treatment zone in any land treatment unit, per 5264.271
     (c)(2),  must be at least 3 feet above the seasonal high water
     table, a costly pumping system it not the only alternative to
     achieve  this standard.  The facility may clean up the areas with
     a high water table and discontinue their use for the treatment of
     waste,   dean up entails the removal of soil from these areas  and
     placement of the soil in the active treatment unit.  New  soil  should
     be replaced in these areas and the areas should be  fenced off.  In
     effect,  this land treatment unit could be operated  aa  two smaller
     units  separated by the high water table areas.

7) issuance of an Immediate full-scale facility Permit

     A facility with an existing interim status land  treatment unit
     somvlttsd a carefully prepared, complete  land treatment demonstra-
     tloa as  part of their permit application.  The demonstration
     addressed all the requirements of Subpart H  - Land Treatment,
     identifed all the potential problems  encountered at the unit and
     provided measures that will be  implemented to correct these problems
     Because  the demonstration addressed all Agency retirements, the
     issuance of a full operating permit was  riixmmmnJaii instead of a
     two-phase permit.
                              - 8 -

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                                              Policy Directive NO. 9523.0
 1) Joint  Permitting by EPA and a state

      Facilities located in a State which has been authorized for the
      RCRA 'base program', but not the HSWA provisions, may currently be
      issued joint State and Federal permits which together constitute
      the  "RCRA permit".  The state prepares the portion of the permit
      covering non-HSWA matters.  EPA should incorporate the HSWA provisioi
      into the State issued permit or, if necessary, EPA may issue a
      separate permit for HSWA requirements.  In instances where a new
      facility has a joint permit, the permittee must be informed that
      construction cannot begin until both the State permit and the EPA
      HSWA permit are issued (either jointly or separately).

 2) ose of HSWA cmibus Provision to Incorporate Land Disposal Restriction:
   in Permits
     A Region prepared a draft permit in which they ua«d the 'omnibus pro-
     vision' (S3005(c) (3)) to incorporate proposed larid disposal reatrictic
     as a permit condition.  The 'omnibus provision', as stated in the
     preamble to the December 1, 1987 final codification rule (52 PR 4578!
     gives EPA the authority to ijnpoM permit conditions above andTBtyond
     existing regulatory retirements if the currant requirements are
     inadequate to protect human health and the environment.

     The self-implementing HSWA provisions, such as the land disposal
     restrictions, supersede the 5270.4 provision (i.e., "permit as a
     shield*) which states that compliance with a RCRA permit constitutes
     compliance with subtitle C.  Therefore, the land disposal restriction
     apply regardless of whether or not they are included in the permit.
     QSHER Policy Directive Mo. 9522.00-1 (Reference 3) clarifies the sell
     implaoanting requirements of HSHA.

     To simplify enforcement and to clarify the duties of the owner/
     operator, however, the PAT rauamsiiJa that permits issued after land
     ban or other salf-ixplamsnting HSWA regulations incorporate the
     requireMBta of those regulations, aa they apply to the specific
     facility,  to the case under discussion, sine* the restrictions  rule
     wsjfj only Ptooaaad at the time, the PAT nujsmnJsJ that the
     pajMt not contain specific conditions for these restrictions  due
     to It* likelihood of changes in the rule.

3) editing-of Permit Content prior to Issuance

     Several Regions have prepared draft permits with unedited portions
     of the permit, application appended to the permit. Onaditad attach-
     ments nay not correspond with the wording in  the body of the permit
     and some sections may be contradictory or oonfusa requirements in
     the permit.  Permit conditions need to bt precise.
                             -  9 -

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                                              Policy Directive NO. 9523.(
     Appending Part B auctions that are not relevant  to the permit ray
     man that any operational change* affecting subjects within those
     sections, however insignificant, may reouire a permit modification.
     The PAT recommends that all portions of the permit be reviewed  for
     "applicability, importance and clarity."

4) Permit Language

     A permit prepared for a container storage area tuted that the
     permittee can "store a maximum of 600 drums in the container  storage
     area".  Because the permit is an enforceable document,  the permit
     language must be precise.  This statement tallies that  the only
     containers to be stored at this facility will be drum.   The  languac
     should reflect all the types of containers to be stored at this
     site.

5) Methods for Establishing Background

     The use of the minimum detection limit (MDL) to .establish background
     as a ground-water protection standard is an acceptable  method.
     However/ the permit should reference the appropriate analytical
     methods in Stt-646 (Reference 13) and specify target detection
     limits.  The new list of Appendix IX to Part 264 include* sue
     iwthods and practical quantification limits (S*« Reference 4J
6) Permit Condition for Corrective Action Site Investigation

     A facility has several abandoned waste disposal ponds (SHMQs)
     from a previous owner.  Based on the results of the RCRA Facility
     Assessment/ the units to be evaluated in the facility's RGRA Facilit
     Investigation (RFI) should be specified as a permit condition.

     Any conoonents required in the RFI/ such as the characterization of
     the nature and extent of contamination, the definition of pathways
     for migration, the identification of aress threatened by releases ar
     the evaluation of interim measures, should also be specified  in the
     permit.  The draft document/ RQRA Facility Investigation (RFI)
     Guidance, July 1947 (Reference"?! should be consulted.
                    July 1987  (Reference?)

          A site Investigation could identify.* release that does not require
                    isssnlil measures because it is not currently a threat to
                health or the  environment/ but has the potential to become a
                 in the  future.  Corrective  actions under f3004(u) should not
          ha limited  to  releases that already pose a threat.  The Monitoring
          of such a release for a reasonable period of time would be an
          appropriate permit condition.

Corrective  Action

     1) Location of the  Point  of Compliance Nells

          under Subpart  F, once ground-water contamination  is detected  from
          any regulated  unit/  the owner/operator is required to establish a


                                   - 10 -

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                                              Policy Directive HO.
     ground-later  protection standard as described in 5264.92.  The point
     of compliance (POC) must be established directly downgradient of the
     regulated unit(s).

     for corrective action  programs under HSWA, however, specific monitor-
     ing wells, which were  installed as part of the site investigation,
     may be  designated as POC wells. The POC wells for non-regulated *oii<
     waste management units should be identifed in the HSWA portion of
     the permit.

 2) Treatment Reouirements for Ground water Removed During Corrective Actic

     Permits including corrective action conditions for ground-water
     treatment program must not only include pumping and removal  reouire-
     ments but must specify treatment standards or methods of handling
     contaminated  ground water.  Although ground water itself is not a
     hazardous waste, ground water that contains hazardous waste leachate
     must be managed as if  it ware hazardous waste sine* the  leacnate
     is subject to regulation under Subtitle C.  Once, the ground water
     is treated such that it no longer contains a hazardous waste, the
     water is  no longer subject to Subtitle C regulation,  see the memo-
     randum  f ran OGN to Region IV, "RCBA Regulatory Status of Contaminated
     Ground  Niter*, November 13, 1986 (Attachment D).

 3) Selection of Appropriate Treatment Technologies

     A  facility proposed a  corrective action program where contaminated
     ground  water  was treated by air stripping*  One of the organic con-
     taminants, methyl isobutyl ketone  (MXBR), is extremely soluble in
     water and may not readily volatilise from aqueous solutions.

     The degree to which a  contaminant  leaves the water phase and enters
     the air phase is dependent on the design of the system employed and
     on a combination of physiochemical characteristics.  A substance's
     solubility in water and its vapor  pressure are key factors for
     determining whether t  substance is amenable to air stripping.  MXBK
     tends to  remain in the water phase instead of being  released into
     the air phase. Therefore, MXBK may not be a good candidate for rsmova
     fro* ground water by the air stripping method presented by the owner/
                  technology that is approved as part of the corrective
              at a facility must be baaed upon the type of contaminants
            the level of contamination, and the technology's ability to
     meet the treatment  standard.

4) Evaluating Air Missions from Treatment Onlta

     Some treatment  technologies do not destroy contaminants but remove
     them from one medium,  such as ground water, and than release  them int
     a second medium, such  as air.  Air emissions from treatment units.
                              - 11 -

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                                              Policy Directive NO. 9523.<


      particularly those resulting from air stripping and other air releat
      technologies, should be considered by the permit writer before apprc
      a corrective action plan,  tte owner/operator should be required to
      determine stack emission rate estimates as well as perform disparate
      modeling in  order to determine if air emission controls are necessai

      While volatile organics released to the air via air stripping are  nc
      hazardous waste, releases of hazardous constituents to the air  from
      hazardous waste management or solid waste management units are  sub1«
      to corrective action authorities.  The permit (or a 3008(h) order) t
      address  contamination of both the around water and the air rcaultine
      from waste management at the facility as necessary to protect human'
      health and the environment.

5) Use of Pield Studies in Approving Bearging Technologies

      A facility proposed to clean up contaminated soil with an in-situ
      bio-reclamation technology.  Whan a facility proposes to use an
      emerging technology, such as insitu treatment, which depends
      upon site specific conditions, it is best to require a pilot scale
      field study  which is separate from any laboratory teat.  Experience
      at superfund sites has shown that methods that work well in the
      laboratory may not work wall in the field.  The reverse may also be
      true.  In lieu of any specific Agency guidance, the PAT will be able
      to provide assistance when evaluating the results of field studies.

6) Verification Monitoring

      Until HSWA corrective action policy on monitoring is established,
     ground-water monitoring to verify that the ground-water protection
      standards determined for hazardous constituents released from SNMOs
      have been achieved under a HSWA corrective action should be similar
      to existing  monitoring requirements for compliance with ground-water
     protection standards at regulated units.  This monitoring should
      include quarterly sampling and analysis of the POC walls for all  the
     contaminants specified in the ground water protection standard.   Pie;
      ibility, however, can be included in the HSWA corrective action perm:
     After the first few years, for example, a different  monitoring scheme
     may be appropriate.

     The paodt aay also include requirements for monitoring of Appendix
     XZ oamtitoents •reasonably expected to be  in  or derived from  the
            in the SMMDs.  The frequency of such monitoring (e.g.,
           ly) should be Included in the permit.
7) Termination of HMt Corrective Action Programs
     corrective action programs  for  release* from regulated units can be
     terminated whan the ground-water protection standard hat not been
     exceeded for three consecutive  years (S2M.100(f)).  This approach
     can also be applied in HSWA corrective action permits.  The HSHA
     permit, however, My  also include a technical feasibility clause.
     When the maximum possible reduction of contaminants from the ground
     water has been achieved and the media (ground watar) protection
                              - 12 -

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                                                   Policy Directive NO. 9523.0


           standard ij Kill  being exceeded, further use of that technology may
           not be retired.   At  that point, if no other technology or combinati
           of technologies will  achieve any additional reduction in contaminant
           levela, the corrective action program could be terminated.

 Miscellaneous Topics

    Disposal of Non-hazardous waste in RCRA Regulated Units Waiver Request
    for Liquid in Landfill Restrictions

      A facility wished  to dispose of non-hazardous dredge aaterial in a
      landfill that was undergoing closure after th€ loss of interim
      status.   The facility sought a waiver under §3004(c)(3), contending
      that  there is no alternative disposal site and that the liquid
      condition of the dredge material will not present a risk of contam-
      ination  to any underground source of drinking water.

      The owner/operator did  not meet the requirement of S3004(c)(3)(A)
      which requires the demonstration that no reasonably available altern-
      ative exists other than placement in their closing landfill.   The
      facility based their contention of no available alternatives on the
      refusal  of neighboring  states to accept the dredge material without
      dewatering.   The facility  did not adequately investigate all altern-
      atives,  such as the deposition of dredge Mterial in a sanitary land-
      fill,  which is considered  to be an available alternative based upon
      the Statutory Interpretative Guidance of April 1916 (Reference 12).

      The determination of 'reasonably available' also involves  technical
      and engineering considerations.  A dewatering option was never
      thoroughly evaluated.   If  the dredge material could be dswatered to
      pass  the Paint Filter Liquids Test, the restriction in S3004(c)
      would  not apply.   The disposal of nonhazardoua waste in a  landfill
      that has lost interin status, however, is discouraged by Agency
      policy.   As stated in Gen* Lucero's memorandum of December 20, 1985
      (Reference 1),  the receipt of non-hazardous waste is acceptable
      only if  it does not delay  closure.

Criteria for  the Referral of Facilities to the Agency for Toxic substances
and Disease Registry (ATSDR) under 53019

          9am facilities,  each in different Regions, have ground-water
          aoBtajdnation that has migrated off-site.  Releases  at two of these
          facilities have contaminated residential wells.  At  the third
          facility while direct exposure to contaminated ground water has not
          bean nVnaanrail, public concern about potential exposure is extreme.
          Due to the history of contamination at theae sitea,  the off-site
          migration, and the proaixity of the public, the assistance of
          the Agency for Toxic  Substances and Disease Registry (ATSDR) is
          warranted.

          These sites wara rafarrad  to ATSDR for a "health consultation*.
          A health consultation by the ATSDR enables a Region to determine
          what information should be gathered  (e.g., during a RCRA Facility
          Investigation) to  allow the ATSDR  to undertake a acre detailed


                                  -  13 -

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                     Policy Dlrectiv* NO.  9533.
00-
- 14 -

-------
                                  Policy Oirtctiv« NO.  9523..
            Attachment A
PAT Reviews Included in this Summary
Facility
American Cyanamld
Ashland Chemical Co.
6.F. Goodrich
Dow Chemical
Fondessy Landfill
G.E. Waterford
Highway 36
International Paper Co.
IT Corporation
L1on Oil
McDonnell -Douglas
Mills Services
Ross Incineration Services
Shell 011
United Technologies/
HMiltofl Standard Site
Union Carbldt
U.S. Pollution Control, Inc.
U. S*. Steel
Region
II
V
IV
V
V
II
VIII
IV
V
IV
VI
II
V
X
I
II
VI
V
PAT Coordinator
Chris Rhyne
Janette Hansen
Robert Kayser
Robert Kayser
Chris Rhyne
Chris Rhyne
Mark Salee
Dave Eberly
Janette Hinsenf
Janette Hansen
Robert Kayser
Chris Rhyne
Nestor Avlles
A«y Mills
Janttte Hansen
Robert Kayser
Chris Rhyne
Ntstor Avlles
* •
Robert Kayser
Dave Eberly
Janette Hansen
Dave Eberly
Review Oat*
January 1987
January 1987
November 1986
March 1987
November 1986
December 1986
November 1986
March 1987
January 1987
February 1987
September 1986
% February 1987
March 1987
February 1987
April 1987
April 1987
February 1987
March 1987

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                                                     Policy Directive *>. 9523.00
                           Attachment B

         List  of Guidance aged  in Preparing the PAT Reviews


 1.   "Accepting Nonhazardous Hastes After Loeing Interim Status",
      Memorandum Gene Lucero, December 20, 1985.

 2.    Draft  Guidance  Document:  Landfill Design—liner System and
      Final  cover,  (Chapter E only), July 1982.

 3.    Effect of Land  Disposal Restriction* on Permits, Effective
      Date 9/15/86, Directive No. 9522.00-1.

 4.    federal  Register, vol. 52, 25942.

 5.    Permit Guidance Manual on Hazardous waste Land Treatment
      Demonstrations,  July 1986.

 6.    Permitting of Land Treatment Onita:  EPA Policy and Guidance
      Manual on Land  Treatment  Demonstration, Effective Date 9/17/86,
      Directive 9486.00-2.

 7.    permit writer's Guidance  Manual for Hazardous waste Land
      Treatment,  Storage and Disposal Facilities, October 1983.

 8.    Procedural  Guidance for Reviewing Exposure Information under
      RCRA Section 3019, September 1986, Directive NO. 9S23.00-2A.

 9.    RCRA facility Investigation (Rfl) Guidance, Draft, April 1987.

 10.  ROM Ground-water Monitoring Compliance Order Guidance, August
      1985.
11.  RCRA ground mter Monitoring Technical enforcement Guidance
                         1986, NTXS Mo. PB87-107751.
12.  Statutory smtsrpretative Guidance of April  1946,  April 1984.

13.  .Test Methods for Evaluating solid waste,  SW-846,  March 1997.

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                                      Policy
                                 C
        Evaluation of Landfill
                  -» -~       ;,
Software
  VKksburg, M1$s. 39180

   6 formatted blank discs

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                                   ~3W Directive NO.  9S23.:c-17
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C.  '
      ~ t
                                                  SOLiO WAS'E 4NO s

MEMORANDUM


SUBJECT:  Summary of Assistance Branch Permitting Comments
                                      \   • ! /
FROM:     Sylvia Lowrance, DirectorAv,1^   f\
          Office of Solid Waste  (
TO:       Hazardous Waste Management Division Directors
          Regions I-X


    Attached is the fourth  in a series of' periodic reports
which summarize major  issues that Assistance Branch members
have addressed in their reviews of specific Part B applications,
permits and clos'ure plans.   (These reports were formerly called
the "PAT Summary Reports";  previous reports were issued in
March 14, 1986«(OSWER  Policy Directive No. 9523.00-14),
March 30, 1987 (OSWER  Policy Directive No. 9523.00-12), and
March 30, 1988 (OSWER  Policy Directive No. 9523.00-15)). These
reports cover  issues that are of generic national interest
rather than strictly site-specific interest.  The attached
report includes reviews conducted by the Disposal and
Remediation Section and the Alternative Technology and Support
Section from January 1987 to March 1988.  In order to ensure
that the report reflects current EPA policy and guidance, we
obtained review comments from within OSW and from the Office  of
General Counsel..

    We hop* that the recommendations provided in this document
will be helpful for permit  writers encountering similar
situations at other RCRA facilities.  By sharing the Assistance
Branch's suggestions from a few sites, we hope that permit
decision Baking will be somewhat easier and faster at many more
sites nationally.  We  encourage you to distribute this report to
your staff and State permit writers.  To make that easier,  I
have attached multiple copies of the report.

    Attachment A to the report lists the facility names,
Regions, coordinators, and  dates for the reviews summarized  in
this report.  Attachment B  provides a list of guidance documents
and directives used in preparing the reviews.

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                                        OSW Directive No. 9523.00-17
                               -2-


    If you have any questions, comments, or suggestions on the
Summary of Assistance Branch Permitting Comments,  please contact
James Michael at FTS 382-2231.

Attachments

cc:  RCRA Branch Chiefs        DRS Staff
       Regions I-X             ATSS Staff
     Permit Section Chiefs     Paul Cassidy
      Regions I-X              Les Otte
     J. Winston Porter         Art Day
     Jack McGraw               Jia Bachmaier
     Tom Devine                Elaine Stanley
     Jeff Oenit                Lisa Friedman
     Bruce Weddle              Tina Kaneen
     Susan Bromm               Fred Chanania
     Ken Shuster               Matt Hale
     Joe Carra                 George Garland
     Jim O'Leary               Tom Kennedy  (ASTSWMO)
     Suzanne Rudzinsfci
     Elizabeth Cotsworth
     Jim Michael

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                              OSW Directive MO.  9523.00-17
                        Table of Contents

          Topic                                               Page
Issue Resolution                                                 1
           •
     Ancillary Equipment on Tank Systems                         1
     New Tank Systems                                            2
     Variances for Classification as a Boiler                    3
     Incinerators                                                6
     Land Disposal Expansions                                    6
     Waiver Petitions for Minimum Technology Requirements        8
     R04D Permits                                                9
Recommendations                                                 H
     Tank Systems                                               11
     Incinerators                                               ll
     Ground-water Monitoring                                    13
     Ground-water Modeling                                      14
     Landfill Design                                            15
     Permit Conditions                                          16
Availability of New Guidance                                    17
Attachment A - Staff Reviews Included in this Summary           18
Attachment B - I*ist of Guidances Used in the Summary            19

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                                    OSW Directive No. 9523.00-17

          SUMMARY OF ASSISTANCE BRANCH PERMITTING COMMENTS

                     January 1987 - March 1988


    This is fourth in a series of documents summarizing some of
the comments provided to Regional permit writers by staff of
OSW's Asssistance Branch on permitting.  It was  formerly called
the "PAT Summary Report".

    This summary is organized  into three sections.  The first
section, Issue Resolution, provides examples of  issues that have
been raised at one or more facilities.  This section covers
special situations where regulations or policy decisions were
applied to actual circumstances.  The second section,
Recommendations, addresses comments routinely made to answer
questions on items often overlooked or poorly understood, and to
convey technical information.  This section should be generally
helpful to the permit writer.  Finally, there is a section
describing new guidance that may be of interest to the Regions.


ISSUE RESOLUTION

Ancillary Equipment on TanJc Systems

 1)  Secondary Containment for Flanges and Joints

     Threaded joints and flanges used in tank system piping vary
     widely.  Frequently, the Assistance Branch staff is asked
     to clarify if a specific design is exempt from the
     requirement for secondary containment.

     An owner/operator asked if a joint consisting of a flange
     bolted to a second flange is required to have secondary
     containment.  Belted flange joints, that are above ground
     and inspected daily, are not required to have secondary
     containment; however, the completed and installed system
     must b« tested for tightness prior to use.

     Secondary containment is  intended to apply to any threaded
     joint system, including threaded joints fabricated of
     special materials such as teflon or plastic.  Any joint
     where waste may come in contact with the thread must have
     secondary containment.

 2)  Secondary Containment for Ancillary Equipment

     A facility submitted a design for a secondary containment
     system for the waste lines entering a neutralization tank.
     The proposed secondary containment system was an existing

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                              OSW Directive No.  9523.00-17

                               -2-

     trench that conveyed non-hazardous vastevater to the same
     neutralization tank.  The Assistance Branch was asked to
     determine if the existing trench was acceptable as
     secondary containment.

     The hazardous waste pipe was to be suspended over the
     existing trench which was adequately sized to contain both
     the flow in the pipe, should a leak occur,  and the maximum
     volume of wastewater.  Secondary containment, however, must
     be dry in order to detect any leaks from the hazardous
     waste line.  Once a release is detected, any waste must
     then be removed.  The proposed system, therefore, was not
     acceptable.

     The facility modified its proposal to include a dry trough
     below the hazardous waste pipe.  The second proposal met
     the full intent of the secondary containment requirement
     and was deemed acceptable.


Maw Tank Systems

1)   The Status of New Tank Systems at Facilities Permitted
     between the. Promulgation and Effective Dates of the New
     Tank System Regulations

     Any tank system installed after July 14, 1986 is, by
     definition, a new tank system.  About six months fall
     between this date and the effective date of the revised
     Federal regulations  (January 12, 1987).  For tanks subject
     to RCRA standards but not KSHA, this time lapse is even
     more pronounced in States that had pre-HSWA authorization
     and have additional time to adopt equivalent tank system
     regulations.  Can permits issued during this time lag
     reflect the intent of the revised tank regulation?

     In the case of a State-issued permit, the permit must
     reflect the State statutory or regulatory requirement in
     effect prior to final permit disposition.  If a State has a
     regulation analogous to Section 270.41(a)(3) (Reference 5)
     the Director can modify a permit in order to include new
     statutory requirements or regulations applicable to the
     permit upon the effective date of the legal authority.
     Thus, a permit issued for a tank system can be modified to
     reflect the revised  standards when they go into effect.

     After the permit modification, any tank system installed
     after July 14, 1986  would be considered a "new" tank system
     which must have secondary containment.  The phase-in period
     allowed for 'existing' tank systems would not apply.

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                             OSW Directive No. 9523.00-17

                               -3-

     The State Oiractor has the option to use a State lav
     analogous to the "omnibus provision" (Section 270.32(b)(2))
     to reflect the requirements of the regulations during this
     lag time.  OSWER Policy Directive 19523.00-15 (Refer ence
     11) clarifies when to use the (Federal) omnibus provision.

     It should be noted that new underground tanJcs are regulated
     under HSWA.  At this time, no States are authorized to
     apply these requirements.

Variancea for Classification aa a Boiler

     The Assistance Branch was requested to determine if
     specific units which do not meet the definition of boiler
     were eligible for a variance to be classified as a boiler
     under Section 260.32.  Two proposals were reviewed and the
     following issues were specifically addressed.  An
     evaluation of all the applicable criteria, however, was
     conducted in each case prior to making the final
     determination.  At both facilities, the inability of either
     unit to meet any of the criteria for classification as a
     boiler supports the final determination that these units
     are not eligible for a variance.

1)   Integral Boiler Design of the Combustion and Energy
     Recovery Sections.

     In order for a controlled flame combustion unit to meet the
     definition of a boiler given in Section 260.10, the
     combustion chamber and the energy recovery section must be
     of integral design.  Two facilities have units which they
     refer to. as "post-combustion chambers" located between the
     combustion section and the energy recovery section.  The
     post-combustion chambers are insulated flow passages
     between the main combustion chamber and the heat recovery
     section.  Ths; owners of these units requested variances.
     They contend that these passages are not ducts or other
     connectors which, as stated in the regulations, are not
     permissible as components between the combustion and energy
     recovery sections in units which meet the integral design
     requirement of a boiler.

     The owners assert that additional thermal oxidation of
     wastes occurs in the post-combustion chambers, providing
     high hazardous waste destruction, and that combustion
     therefore continues until the gases reach the energy
     recovery section.

     The oxidation of additional waste products, however, does
     not mean that combustion occurs.  Combustion, as defined

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                              OSW Directive Mo.  9523.00-17

                               -4-

     in Webster's New Collegiate Dictionary, is  a specific
     process which is "accompanied by the evolution of light and
     heat".  In fact, information on the performance of these
     units showed a net loss of heat over the length of the
     chamber instead of a heat gain as would occur during
     combustion.  The conditions in the chamber  that promote the
     oxidation of trace organics is part of a good incinerator
     design.  The Assistance Branch found that these units do
     not meet this criteria for a boiler.

2)   Integral Boiler Design Based Upon the Operation of a
     Control System Between the Combustion and Energy Recovery
     Sections

     4$ CFR Section 260.10, which defines boilers, provides an
     example of units that do not meet the integral design
     requirement as units "in which the combustion chamber and
     the primary energy recovery section(s) are  joined only by
     ducts or connections carrying flue gas..."   An
     owner/operator maintained that his unit was a boiler •
     because the combustion section was''connected to the energy
     recovery unit not only by a duct but by a control system as
     well. The Assistance Branch evaluated the owner's
     contention that his unit was a boiler.

     The control system in this unit does connect the steam
     raising portion with the combustion chamber.  The control
     system, however, was designed for safety purposes to reduce
     the risk of explosion and other unsafe conditions.  Under
     unsafe conditions this type of automatic control system
     would shut the unit down.

     True boilers have control systems designed  to regulate
     steam output.  Boiler control systems would typically
     provide at least a 3 to 1 turn down control on steam
     production by varying the fuel, air and water.  When
     evaluating the appropriateness of any unit  to meet the
     definition of a boiler, the common and customary usage of
     similar units is important.  The lack of steam control by
     this unit's control system is typical of incinerators.  The
     Assistance Branch noted that the lack of a  true boiler
     control system supported the denial of the  boiler petition.

 3)   Variance Petition under Section 260.32 for Classification
     as a Boiler Based upon Innovative Design of the Unit

     An owner submitted a petition for classification of his
     unit as a boiler.  He maintained that the innovative
     techniques employed during the construction of his unit
     should be a factor in the evaluation of his petition since

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                              OSW Directive Ho. 9523.00-17

                               -5-

     the boiler classification variance was meant to allow for
     new or unusual units which EPA did not have the opportunity
     to consider when developing the boiler definition.  During
     the review of the petition, the Assistance Branch evaluated
     the performance of the innovative component in order to
     determine if it was significantly different from that of '-
     the current technology.

     The innovative component was the insulation around the
     post-combustion chamber.  The insulation was constructed of
     8 inches of compressed refractory material installed by a
     unique, soon to be patented process.  The owner of the unit
     and the designer of the process stated that the use of this
     material was innovative.

     The performance of the insulation was both theoretically
     and practically evaluated.  Actual performance was
     considerably less than what was anticipated from the
     theoretical calculations.  Based on the theoretical heat
     transfer calculations, the performance of the innovatively
     applied insulation was not significantly better than that
     for insulation designed and installed according to current
     incinerator industry standards.  While the installation
     technique for the insulation may be "innovative", the
     insulation process did not provide any improvement over
     current practice.  Thus, even though the insulation was
     different from the type normally used, the difference was
     deemed insignificant since it achieved results similar to
     conventional insulation.

4)   Thermal Efficiency Requirement for Boilers

     Section 260.10 states that any "boiler" must "maintain a
     thermal energy recovery efficiency of at least 60 percent1*.
     Ac part of a:demonstration to support a waiver petition
     for classification as a boiler, a unit was described as
     operating with a 65% energy recovery.  The Assistance
     Branch evaluated this claim.

     The unit in question is not able to measure the fuel flow
     rate and the waste addition varies by 50 percent,  without
     appropriate documentation, the thermal efficiency data is
     unsupported.  The determination of boiler efficiency should
     be conducted under controlled conditions following one of
     the methods certified by the American Society of Mechanical
     Engineers.

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                              OSW Directive NO. 9523.00-17

                               -6-
1)   Use of Thermal Relief Vents

     Design drawings in a permit application for a new
     incinerator included a thermal relief vent between the
     combustion chamber and the air pollution control
     equipment.  The Assistance Branch was requested to
     determine if the use of a vent to bypass the air pollution
     control equipment should be allowed.

     The thermal relief vent was proposed to protect the air
     pollution control equipment from excessive heat during
     emergency situations such as failure of power and water
     cooling systems.  OSWER Policy Directive 19488.00-3
     (Reference 1) discusses the acceptability of these vents in
     new incinerators.  Indiscriminate use of relief vents is
     deemed to be a violation, however, EPA has recognized that
     they may occasionally be needed to protect employees and
     air pollution control equipment.  Thermal relief vents,
     therefore, are allowed in the design of new incinerators.

     The permit, however, should require the design to include
     the necessary backup systems to reduce the use of these
     vents.  The system should have interlocks such that the
     vent can only open after the waste feed has been cut off.
     The operating plan should include a list of parameters and
     cut-off points at which the vent may be used.  A review of
     the permittee's operating plan should be made to identify
     and eliminate the use of the thermal relief vent in
     situations where it may not be absolutely necessary.


Mini     echnology Requirements for Vertical and    eral
1)   Application of Minimum Technology Requirements to Vertical
     Expansions.

     A facility planned to expand its landfill vertically.
     During the. public comment period on their draft permit, the
     applicability of minimum technological requirements to such
     an expansion was raised.  The Assistance Branch was
     requested to evaluate the issue.

     The facility opened the landfill trench in question in 1978
     under a TSCA permit.  Currently the unit accepts RCRA waste
     under interim status.  The proposed vertical expansion
     would not exceed the capacity of the unit stated in the
     Part A application, and there are no limits in the

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                         OSW Directive NO. 9523.00-17

                          -7-

existing permits on the elevation of RCRA wastes placed in
the unit."  The proposed expansion will extend 21 feet
vertically above the original grade limitation for TSCA
wastes; however, no waste will be placed beyond the
existing lateral boundaries.

The Assistance Branch found that the proposed vertical
expansion is permissible without meeting the minimum
technological requirements because: (1) The proposed
vertical expansion does not exceed the unit boundaries; and
(2) The landfill was in use and operational prior to the
date of the enactment of HSWA, therefore, the above-grade
expansion does not fit the definition of a new unit.

May 1985 guidance (Reference 4), however, states that a
vertical expansion beyond any hazardous waste permit
capacity or elevation limits affects the operational status
of the unit.  If the operation of the unit was limited on
November 8, 1984, a subsequently proposed vertical
expansion would constitute a "new unit" and is subject to
minimum technology requirements.  This facility has no
vertical RCRA hazardous waste permit limits; therefore, the
minimum technology requirements do not apply to this
vertical expansion.

Lateral Expansion During Closure.

After a RCRA Facility Investigation (RFI), an
owner/operator planned to close several solid waste
management units by consolidating the waste from two waste
soil piles with the residue in a surface impoundment
regulated under interim status.  The volume of the
resulting waste mixture is estimated to exceed the existing
capacity of the impoundment.  The Region was concerned that
the proposed closure plan would not be permissible.

The consolidation of waste material is an acceptable
closure activity. If the proposed consolidation
necessitates the placement of any hazardous waste beyond
the boundary of the regulated unit or beyond any limits
imposed by a RCRA permit since November 8, 1984, the action
results in a lateral expansion which must meet the minimum
technological requirements.  Moreover, if the consolidation
into the surface impoundment occurs after November 8, 1988,
the surface impoundment must meet minimum technology
requirements.  Finally, if waste from any of the units
being placed in the impoundment are subject to the land
disposal ban, then the waste may not be placed in the
impoundment unless it is treated in accordance with 40 CFR
268 Subpart 0 or the owner/operator has sucessfully
petitioned under 40 CFR 268.6.

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                              OSW Directive No.  9523.00-17

                               -8-

waiv«r Petitions from Minimum Technological Requirements -
3004(O)(2)

     A facility may petition for a waiver from minimum
     technological requirements under Section 3004(o)(2) if
     their alternate design and specific operating practices,
     when viewed in combination with the characteristics of the
     site location, will prevent the migration of hazardous
     constituents into ground or surface water as effectively as
     the rtquired design.  The Assistance Branch is often asked
     to evaluate facility specific factors to see if they meet
     the conditions of the waiver.  During two recent
     evaluations, the following issues were raised.

1)   Minimum Technology Waiver Petition due to Alternate Design
     and Operational Factors

     An owner/operator of an existing surface impoundment
     proposed to install a liner system consisting of a 36-ml
     hypalon sheet over a leachate collection •/•*•• constructed
     over two existing 4-inch layers of bentonite separated by a
     drainage layer.  The owner contends that this design is at
     least as effective as the minimum technology requirements
     (MTR).  The MTR specify a 36-inch clay layer because a
     liner of such thickness would be constructed by the
     placement of several clay lifts.  Discontinuities in an
     individual lift would be unlikely to occur in the same area
     on subsequent lifts.  The existing 4-inch layer is applied
     in one lift and does not provide any safeguard over any
     irregularities that might allow leakage.

     While the nev design alone was insufficient, the
     owner/operator also planned to use operational factors
     which he claimed would make the alternate design as
     effective as the minimum technology requirements.  The
     impoundment ha* a limited life span with planned closure in
     1999 which makes the unit a short-term operation.  The
     leaehata system does not show any evidence of a leak, and
     no ground-water contamination has been found.  If a leak
     wera to occur, the owner plans to drain the impoundment.
     While the liquids stored in the impoundment are listed
     hazardous wastes, they do not exhibit any of the
     characteristics for which the wastes were listed.  The
     Permit Assistance Staff recommended that the waiver be
     granted contingent upon the short-term operation of the
     unit.

 2)  Waiver Petition Demonstrating Design and Operating
     Practices which Prevent Migration

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                              OSW Directive No. 9523,00-17

                               -9-

     A facility petitioned for an alternate design and operation
     approach that prevents the migration of contaminated ground
     water froa under the unit.  The Assistance Branch was asked
     to determine if the proposed design met the intent of the
     3004(o)(2) waiver provision.

     The owner of the surface impoundment proposed to install
     intragradient cut-off walls downgradient of their surface
     impoundment.  The collected, contaainated ground water
     would be removed from behind the walls and treated.
     Migration of contaminated ground water beyond the waste
     management area, therefore, would be prevented.

     Section 3004(o)(2) allows a waiver only if the owner can
     demonstrate that the proposed alternative will "prevent the
     migration of any hazardous constituents into the ground
     water".  The term "ground water" is intended to mean any
     ground water and not ground water beyond the.waste
     management area.  In order to meet the equivalency test
     required by this waiver, the alternate liner design must be
     as effective as the minimum technology requirements for
     liner design in preventing the migration of any constituent
     through the liner.  The Assistance Branch recommended
     denial of this waiver request.

RD&D Permits

 ~l)  Qualifying for a RD&D Permit for an Incinerator

     Research, development and demonstration permits, regulated
     by Section 270.65, were intended to be available for
     processes and units which treat hazardous wastes with
     innovative technologies.  Several Regions have received
     applications for RD&D permits for technologies already
     established for treating hazardous waste and which are
     specifically regulated elsewhere under RCRA.  The
     Assistance Branch was asfced to determine if incinerators,
     in particular, could be eligible for a RD&D permit and
     under what circumstances they would qualify.

     The purpose of RD&D permits is to produce data on technical
     or economic feasibility of experimental processes or
     technologies; however, existing treatment methods may
     qualify if the permit is intended to allow treatment of
     waste streams not previously treated by this type of unit,
     or if the operating conditions would be modified for
     different or expanded uses of the technology.  The
     Assistance Branch, after discussion with the Office of
     General Counsel, clarified  that incinerators are eligible
     for RD&D permits  (Reference 8) if they further the

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                             OSW Directive NO. 9523.00-17

                              -10-

    knowledge on treatability, design and/or combustion
    research through experimental (but not commercial) research
    applications.

    In one such instance, a research facility applied for an
    RD&D permit for an incinerator and they proposed to conduct
    a study on the products of incomplete combustion  (PZCs)
    from incinerators.  They also proposed to produce a
    biological system study on the fate and transport of Pics
    in the environment.  The results of these proposed studies
    would add to the body of information on the characteristics
    and quantity of residuals emitted from incinerators.  Based
    upon the proposed study of the effects of PICs on
    biological systems, the proposed incinerator was determined
    to be eligible for a RD&D permit.

2)   operating Time for RD&D Permits

    Section 270.65(a)(l) states that an RD&D permit can be
    issued for up to 365 days of operation.  A particular
    facility wishes to continue operation under its RD&D permit
    for longer than one calendar year.  A Region asked the
    Assistance Branch for appropriate wording on the permit.

    While RO&O permits are limited to 365 days of actual
    operation, many experimental units operate sporadically for
    a few days and are then shut down for longer periods while
    the results are evaluated.  In some cases, 365 days of
    operation may extend over numerous years.  In order to keep
    track of the unit's operation, guidance (Reference 3)
    suggests that permit writers may include a calendar-based
    expiration date in RD&D permits in cases when warranted.

    RO&D permits may be renewed up to three times.  The
    appropriateness of the justifications for an extension
    should be considered with any future permit renewal
    applications.  The application will be evaluated based upon
    the initial results of operation, the need for more data,
    any changes in operating conditions and the occurrence of
    any enforcement actions.

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                              OSW Directive Mo. 9523.00-17

                               -11-


                         RZCOMMENDATIONS


Tank Systems

1)   Applying Regulations Promulgated Under Two Authorities

The universe of hazardous waste tanJc systems currently affected
by the July 14, 1986 regulatory amendments varies from State to
State.  The tank system regulations were promulgated under two
authorities.  Those applicable to RCRA tanJc systems are now in
effect only in States that do not have authorized RCRA base
programs.  States authorized for the base RCRA program must
amend their programs before the regulations become effective.
Those provisions applicable to HSWA regulated tank systems are
effective in all States.  The Assistance Branch is often asked
to clarify which provisions apply universally and which apply
only in unauthorized states.

The following requirements apply in all States:

     interim status requirements applicable to small quantity
     generator tank systems (Section 3001(d))

     leak detection for all new underground tanks that cannot be
     entered for inspection (Section 3004(o)(4))

     permitting standards for underground tanks that cannot be
     entered for inspection (Section 3004(w))

Regulations applicable to above-, on-, in-, and enterable
underground tanks currently apply only in unauthorized States.
Authorized States have until July, 1988 (if only regulatory
changes are needed) or July, 1989 (if statutory changes must be
made) to amend their programs to reflect the Federal
requirement*.  Further information is provided in the
Implementation Strategy for Tank Systems (Reference 12).


Incinerators

1)   Selection of Principle Organic Hazardous Constituents
     (POHCs)

Current research by the University of Dayton Research Institute
has led to a new incinerability ranking of Appendix VZII
compounds based upon thermal stability data  (Reference 9).
Until now, incinerability ranking of Appendix VZII compounds has
been based upon a compound's heat of combustion.

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                              OSW Directive No. 9523.00-17

                               -12-


Guidance is being developed to reflect the new ranking of
compounds.  A Regional Office proposed to specify at least one
POHC based on each of these rankings as an interim approach.
The Assistance Branch agreed that this approach is acceptable,
and suggested additional criteria, such as chemical structure^
toxicity and concentration, which may also be used.

2)   Use of Surrogate Wastes During a Trial Burn

Surrogate wastes are mixtures of chemicals combined to exhibit
the characteristics of the actual waste materials and to contain
the same hazardous chemicals expected to be burned by an
incinerator.  Surrogate wastes are often proposed by facilities
for use during the trial burn.  Simulating the burning
characteristics of any individual waste, however, is very
difficult.  As a result of this difficulty, facilities should
use actual wastes during the trial burn if they are available.
In cases where the principle organic hazardous constituents
(POHC) concentrations in the actual waste are not high enough to
determine the destruction and removal-efficiency (ORE), the
wastes may be spiked.

If the facility cannot modify its plan to burn actual wastes,
such as in the case of a commercial incinerator, the
owner/operator should provide justification for the use of
surrogates.  If any facility must use surrogate wastes, the
surrogate waste should be as much like the actual waste as
possible.  If an incinerator is planning to burn solid waste,
surrogate solids should be mixed with the POHC feed.

3)   Destruction and Removal Efficiency (ORE) Calculations

A facility planned to include in their ORE calculations the POHC
input into the system from city water used to prepare a lime
slurry for removing acid gases by their scrubber.  During a
review of the) trial burn plan, the Assistance Branch evaluated
their methodology for the ORE determination.

According to Section 264.343(a)(1), the mass feed rate of POHC
input used for ORE calculations must equal the mass feed rate in
the waste stream only.  In order to complete the determination,
all the POHCs in the exhaust gases must be included in the
calculations.  Any additional POHCs volatilized from the slurry
used in the scrubber system must be included if they are
released with the emission gases.

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                              OSW Directive No. 9523.00-17

                               -13-


4)   Sampling-During a Trial Burn

In their trial burn plan, a facility proposes to obtain on* grab
sample per test run for residue analysis.  The proposed
frequency of sample collection is inadequate for the collection
of a representative sanple froa any test run.  An acceptable
plan would be to collect grab samples at frequent intervals over
the entire test period.  These samples should be composited
before analysis.

5)   Use of Sampling Trains in Modified Method 5 (MM5)

Several facilities planned to use a single MM5 train to sample
for both particulates and semi-volatile POHCs during a trial
burn.  This approach is incorrect.  The drying of the filter for
the particulate analysis results in the potential loss of
semi-volatile compounds.  The correct procedure involves the use
of two separate trains, one for particulate sampling and one for
the sampling of semi-volatile organics.


Ground-water Monitoring

1)   Confirming Ground-water Contamination

A draft permit condition for a detection monitoring program
required three sampling events to confirm ground-water
contamination.  Under Part 264 Subpart F, only one confirmatory
sampling event is necessary to trigger a compliance monitoring
program.

The Subpart F requirement for triggering a compliance monitoring
program is based upon one sampling event and one confirmatory
sampling.  A slug of contamination detected in the initial
sampling could pass the compliance point during the time it
takes to obtain results from additional confirmatory sampling
events.

2)   Disposal of Purged Water.

The ground-water sampling and analysis plans at many facilities
have no procedures for handling purged water.  Purged water from
monitoring wells should not be discarded onto the ground because
the purged water could contain hazardous waste.  It should be
tested for hazardous characteristics in order to determine an
appropriate disposal method, particularly if previous sampling
events indicated the presence of hazardous constituents.
Alternately, collected purge water can be disposed back into
surface impoundments that are permitted to receive any
constituents expected in leachate or contaminated ground water.

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                              OSW Directive No. 9523.00-17

                               -14-
Ground-water Modeling
1)   Determination of site-specific Permeability for Application
     in a Model.

A facility proposed to use a model to support their no-
aigration waiver petition.  They obtained several soil samples
in order to determine a soil permeability factor.  A mean value
was calculated for input into the model.

Modeling efforts to determine the potential for migration of
hazardous constituents to or in ground water should use the
worst-case value measured representative of a site in order to
incorporate a margin of safety.  The applicant was asked to
re-run the model using the highest value of the coefficient of
permeability.

2)   Selection of Critical Constituents for Use in a Transport
     Model

A waiver applicant planned to demonstrate no migration into
ground water by selecting critical constituents for use in their
modeling effort.  Inputs included half-life and. retardation
factors.  The applicant selected acrolein and acrylonitrile
based upon their relatively long half-lives in ground water.

However, the high retardation factors which indicate slow
movement, make the selection of these two chemicals
unrepresentative of the worst case.  The most appropriate
constituent(s) for modeling must be based on an evaluation of
all relevant factors.  Concentration of the constituents in the
waste and their retardation factors should be evaluated along
with half-life when selecting constituents with the greatest
potential to migrate.  The Assistance Branch recommended that
other constituents be chosen in this case.

3)   Use of Appropriate Models based upon Site Characteristics

A waiver applicant proposed to use a one-dimensional model to
demonstrate no migration of hazardous constituents into ground
water.  The hydrogeological and soil characteristics of the site
displayed several non-uniformities and could be described as a
fairly complex system.

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                              OSW Directive NO. 9523.00-17

                               -15-


A one-dimensional nodal, as proposed by the applicant, can be
vary limiting.  Th« attributes of the nodal must raflact tha
conditions obsarvad at tha sita.  Also, data raprasantativa of
tha whole sita should ba collected for input into tha chosen
nodal.  Given tha conplexitias of tha sita, a nora sophisticated
nodal, such as a 2- or 3-0 nodal, would ba necessary to support
a demonstration of a 'no nigration ' .

1)   Composite Bottom Liner Equivalency

A facility proposed to install a 60 -ml high density polyethylene
(HDPE) liner over a conpacted clay layer with a permeability not
exceeding 1 x 10"6 cm/ sec as the lover liner for a new cell.
The Assistance Branch was asked to determine if the proposed
liner was equivalent to the current requirement under Section
264. 301 (c) for a 3 foot conpacted clay-only liner with a
permeability not greater than 1 x 10~7 centimeters par second.

The ajaff felt that a conposite liner with a clay component of l
x 10"* en/ sec permeability was equivalent to a clay liner with
lower permeability.  Regulations proposed on March 28, 1986
(Reference 6) , when they becone effective, will be more
restrictive.  They will require a conposite botton liner
consisting of a flexible nenbrane liner over a 3 foot clay layer
with a permeability not nore 1 x 10~7.  Until then, the clay-
only liner requirement is the standard applied to evaluate liner
equivalency.

2)   Evaluation of a Steep Slope Using the Universal Soil Loss
     Equation

A facility proposed to install a cover with a slope that
significantly exceeds the recommended 3-5% grade.  The owner
maintains) that the) annual soil loss, based upon the Universal
Soil Loss Bquation, would be just less than the 2 tons/ acre/ year
limit recommended by EPA.  The Assistance Branch was asked to
review the facility's calculations.

The five factors used in the soil loss equation are subjective
and selected based upon the site engineer's best judgement.  If
slightly larger factors were applied than the ones selected by
the applicant, the soil loss would be substantially greater  (as
much as 33 tons/acre/year) .  In order for the Assistance Branch
to accept the applicant's predicted soil loss, the anticipated
loss should be significantly less than 2 tons/ acre/year so that
any underestimation of the selected factors would not result in
an actual loss of more than the soil loss limit.  The Assistance
Branch requested additional documentation from the applicant.

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                              OSW Directive NO. 9523.00-17

                               -16-


3)   Demonstration of Material Durability

An applicant conducted a demonstration of material durability by
using polyethylene tank* to perform the compatibility testing on
their HDPE liner components.  The polyethylene tank material  ~
absorbs the same kinds of chemicals as the HDPE samples, thereby
reducing the constituent level in the test leachate.  This could
lead to an unrealistic strength data after immersion testing.
The Assistance Branch recommends that glass vessels be used for
immersion testing.

4)   Minimum Technological Requirements for Secondary Soil Liner

A facility planned to construct a side slope liner by scarifying
and remolding the exposed soils prior to placement of the
synthetic membrane.  Section 264.301(c) requires that this liner
be constructed "with at least a 3 foot thick layer of
recompacted clay or other natural material with a permeability
of no more than 1 x 10"' cm/sec.*  Scarifying and remolding
alone do not meet the requirements for recompaction.


Permit Conditions

1)   Specification of an Adequate Number of Emergency
     Coordinators

Assistance Branch review of a Part B application addressed the
contingency plan for the facility.  This facility had only one
emergency coordinator designated in their plan.

The regulations in Section 264.55 require that an emergency
coordinator be available at all times.  At the minimum, one
additional employee must be designated and trained as emergency
coordinator to provide around-the-clock and vacation coverage.
At this particular facility, the Assistance Branch recommended
that two more emergency coordinators be designated in order to
provide adequate coverage.

2)   Requirement for Additional Testing as a Permit Condition

Zn a draft permit, a State required that all stabilized wastes
that have passed the paint filter test also be subjected to an
unconfined compressive strength test at 50 psi.  While a Region
can specify permit conditions for additional testing, the
current Federal policy and the proposed rule on containerized
liquids are less stringent than the draft State permit
condition.  The State is allowed, however, to be more stringent
than the EPA.  Note that under the Federal policy, the
compressive strength test is necessary only if the Region is
unsure that true chemical stabilization has occurred.

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                              OSW Directive No. 9523.00-17

                               -17-


                   AVAILABILITY OF KEW GUIDANCE

TanJc Systems

     EPA guidance document, "Compilation of Person* Who Design,
     Test, Inspect, and Install Storage TanJc Systems"
     (EPA/530-SW-88-019) is now available.  The document
     provides a list of individuals and firms who provide the
     services of an independent, qualified, registered
     professional engineer, corrosion expert, or qualified
     installation inspector as required in the July 14, 1986
     regulations for hazardous waste tank systems.

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                              OSW Directive No. 9523.00-17
          f                    -18-
                           Attachment A
    Assistance  Branch  Staff Reviews Included  in  this  Summary
Facility Name	Region	Staff Coordinator    Reviev Date
BucJcner Barrel
Ciba-Geigy
(Glen Falls, N.Y.)
Ciba-Geigy
( Queensbury , N.Y.)
Fort Barton Industries
General Dynamics
General Electric
(Water ford, N.Y.)
Eli Lilly and Company
Envirosafe Services
(Grand View, Idaho)
MeateJc Corporation
Monsanto
(Chocolate Bayou, TX)
Moore Business Fons and
National XMtitute of
Health (s3D
SCA Chemical Services
SOHIO
Union Carbide Agriculture
Products Company
U.S. Ecology
USPCZ
II
II
II
I
I
II
V
X
I
VI
VT
III
II
VT
III
IX
VTII
Chester Oszman
Chris Rhyne
Chris Rhyne
Sonya Stalaack
Sonya StelmacJc
Chris Rhyne
Chester Oszman
Any Mills
Nestor Aviles
Dave Eberly
Nestor Aviles
Nestor Aviles
Chris Rhyne
Chris Rhyne
Chris Rhyne
Chris Rhyne
Dave Eberly
May 1987
June 1987
March 1988
February
1987
June
1987
February
1988
June
1987
February
1987
January
1987
April
1987
May
1987
February
1988
December
1987
October
1987
July
1987
February
1988
January
1988

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                              OSW Directive No. 9523.00-17

          ¥                    ~19"
           -I.

                            Attachment B

     List of Guidances Used in Preparing the Assistance Branch
                              Reviews

1.   "Acceptability of Thermal Relief Vents on Hazardous Waste
     Incinerators", OSWER Policy Directive 19488.00-3.

2.   Compilation of Persons Who Design, Test, Inspect, and
     Install Storage TanJc Systems, February 29, 1988,
     EPA/530-SW-88-019.

3.   Guidance Manual for Research, Development, and Demonstration
     Permits under 40 CFR Section 270.65, July 1986, EPA/530
     SW-86-008, OSWER Policy Directive 19527.00-1A.

4.   Guidance on the Implementation of the Minimum Technological
     Requirements of HSWA of 1984, Respecting Liners and Leachate
     Collection Systems; EPA/530-SW-85-012.

5.   "Hazardous Waste; Codification Rule for the 1984 RCRA
     Amendments'* 52 FR 45788, July 15, 1985.

6.   "Hazardous Waste Management System; Proposed Codification of
     Statutory Provisions", 50 PR  10706.

7.   "Hazardous Waste Management System; Preamble to the Final
     Codification Rule", 50 FR 28706.

8.   "Incinerator Eligibility for RD&D Permits" Memorandum  from
     Susan Bromm, Acting Director, Permits 4 States Programs
     Division, March 8, 1988.

9.   "Predicting Emissions from the Thermal Processing of
     Hazardous Wastes", Hazardous Wastes and Hazardous Materials,
     June 30, 1986.

10.  Questions and Answers Regarding the July 14, 1986 Hazardous
     Waste TanJc System Regulatory Amendments, August  1987,
     EPA/530-SW-87-012.

11.  "Summary of Permit Assistance Team Comments",  1988, OSWER
     Policy  Directive 19523.00-15.

12.  "Implementation Strategy for the Hazardous Waste TanJc
     System  Regulations". EPA/53O-SW-87-018.  May  1987.

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                                         OSWER Directive Mo. 9523.0O-18
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I J^Z »                   WASHINGTON, D.C. 20460
   MAR I  4 1989
   I ir»\   -» .v^w                                     SOUO


  MEMORANDUM

  SUBJECT:  Summary of Assistance Branch Permitting Comments

  FROM:     Sylvia K. Lowrance, Director
            Office of Solid Waste
  TO:       Regional Waste Management Division Directors
            Regions I-X


     Attached is the fifth in a series of periodic reports
  which summarize major issues that Assistance Branch staff
  have addressed in their reviews of specific Part B applications,
  permits, closure plans and in their responses to site-specific
  situations .   These reports cover issues that are of generic
  national interest rather than strictly site-specific interest.
  The attached  report includes reviews conducted by the Disposal
  and Remediation Section and the Alternative Technology and Support
  Section during April and May, 1988.  To ensure that the report
  reflects current EPA policy and guidance, we obtained review
  comments and  concurrences from within OSW, from the Office of
  Waste Programs Enforcement, and from the Office of General
  Counsel.

     We hope that the recommendations provided in this document
  will be helpful for permit writers encountering similar situations
  at  other RCRA facilities.  By sharing the Assistance Branch's
  suggestions from a few sites, we hope that permit decision-making
  will be somewhat easier and faster at many more sites nationally.
  We  encourage  you to distribute this report to your staff and  State
  permit writers.  To make the distribution easier, I have attached
  multiple copies of the report.
      (These reports were formerly entitled "PAT Summary  Reports":
     previous reports were issued on March 14, 1986  (OSWER  Policy
     Directive No. 9523.00-14), March 30, 1987 (OSWER  Policy
     Directive No. 9523.00-12), March 30, 1988 (OSWER  Policy
     Directive No. 9523.00-15), and September 2, 1988  (OSWER  Policy
     Directive No. 9523.00-17)

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                                   OSWER Directive No.  9523.00-18
                               -2-
    Attachment A to the report lists the facility names,
Regions, revfew coordinators, and dates for the reviews
summarized in this report.  Attachment B provides a list  of
guidance documents and directives used in preparing the reviews.

    If you have any questions, comments, or suggestions on the
Summary of Assistance Branch Permitting Comments, please  contact
Jim Michael,  Chief, Disposal and Remediation Section, OSW at FTS
382-2231.
Attachments

cc: RCRA Branch Chiefs
      Regions I-X
    Permit Section Chiefs
      Regions I-X
    Jon Cannon
    Jeff Denit
    Jim O'Leary
    Joe Carra
    Matt Hale
    Ken Schuster
    Suzanne Rudzinski
    Elizabeth Cotsworth
    Alex Wolfe
    Jim Michael
DRS Staff
ATSS Staff
Art Day
Les Otte
Ken Skahn
Susan Bromn
Steve Heare
Scott Parrish
Lisa Friedman
Tina Kaneen
Fred Chanania
Bob Dellinger
Tom Kennedy  (ASTSWMO)

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                          OSWER Directive No. 9523.30-13
Sanaa ry of Assistance Branch Permitting Comments
               Table of Contents
         Top-ic
Issue Resolution
    Popping Furnaces
    Subpart X - Miscellaneous Units
    Closure
    RCRA Corrective Action
Recommendations
    Popping Furnaces
    Liner Requirements
    Hazardous Waste Stabilization
    Permit Issuance
Staff Reviews Included in This Summary
List of Guidances Used in This Summary
                                           Page
                                             1
                                             1
                                             2
                                             5
                                             7
                                            10
                                            10
                                            11
                                            13
                                            13
                                  Attachment A
                                  Attachment B

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                                   OSWER  Directive No. 9523.00-13


         SUMMARY  OP  ASSISTANCE BRANCH PERMITTING COMMENTS

                      April 1988 - May 1988

    This report is the fifth in  a series  of  documents
summarizing some of the comments provided to Regional permit
writers by OSWs Assistance Branch.  The  report  is organized
into two sections.  The first section,  Issue Resolution,
provides examples of issues that have been raised at  one  or more
facilities.  This section covers special  situations where
regulations or policy decisions  were applied in  actual
circumstances.  The second section, Recommendations,  addresses
comments routinely made to answer questions  on items  often
overlooked or poorly understood, and to convey technical
information.  This section should be generally helpful  to the
permit writer.  A contact person has been listed for  each item
to answer additional questions.

ISSUE RESOLUTION

Popping Furnaces

1)   Automatic Waste Feed Shut-off

         The Army is in the process of applying  for permits  for
         their munitions deactivation (popping)  furnaces that
         are located at about a  dozen Army facilities around  the
         nation.   These "popping furnaces" are hazardous
         incinerators where the  waste material is obsolete
         munitions that must be  exploded  in the incineration
         chamber during the incineration  process.   The explosive
         nature of the waste poses specific problems  unique  to
         these units in meeting  Subpart 0 requirements.

         Section 264.345(e) requires that "an incinerator must
         be operated with a functioning system to automatically
         cut off waste feed to the incinerator when operating
         conditions deviate from limits  . .  .".   Explosive
         wastes in the "hot zone" near the furnace cannot be
         safely stopped before the incinerator chamber due to
         risk of explosion outside the unit.  A design was
         proposed at an Army facility that meets the requirement
         for an automatic waste feed cut-off without
         compromising safety.  The proposed design consists of
         two conveyors.  The first conveyor feeds waste
         munitions onto a second conveyor which, in turn, feeds
         the munitions in the "hot zone"   into the feed chute.
         The automatic control would stop the first system in
         the event of deviations from permit operating
         conditions/ while the waste in  the "hot zone" would
         continue safely into the  unit.

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                                   OSWER Directive  No.  9523.00-13

                                -2-

         The Assistance Branch reviewed the proposed  waste  feed
         system and concurs that this system meets  the
         regulatory requirements under Section 264.345(e)  for  an
         automatic waste feed cut-off.

    Contactr-  Sonya Stelmack  202 or FTS-382-4500


2}  Fugitive Emissions

         Fugitive emissions are characteristic of popping
         furnaces during the explosion of the munitions waste in
         the incinerator chamber.  Section 264.345(d) requires
         that fugitive emissions from the combustion zone be
         controlled by keeping the combustion zone totally
         sealed; or by maintaining a combustion zone pressure
         lower than atmospheric pressure; or by an alternate
         method which can be demonstrated to provide fugitive
         emissions control equivalent to the maintenance of
         combustion zone pressure lower than atmospheric.

         An Army facility proposed to maintain lower than
         atmospheric pressure in their combustion zone; however,
         they could not do so continuously.  They requested that
         the permit be worded so that a specific number of
         positive pressure excursions would be allowed.  The
         Assistance Branch concluded that allowing positive
         pressure excursions would not meet the regulatory
         requirement for fugitive emission control.  The
         Assistance Branch informed the Army that their other
         proposed option of providing a totally enclosed system
         where the collected fugitive emissions would then be
         returned to the incinerator with the air intake would
         be acceptable.  A more recent Army proposal to enclose
         the furnace retort in a negative-pressure shroud  rather
         than totally enclosing the system will also be
         considered, provided the Army submits adequate
         supporting data.

    Contact:  Sonya Stelmack  202 or FTS-382-4500


Subpart X - Miscellaneous Units

1)  Units Regulated under Subpart X

         A facility has ten units that the owner/operator
         maintains are miscellaneous  units which should  be
         regulated under Subpart X.  The owner/operator
         describes these units as pits.  Wastewater  containing
         reactive waste enters the unlined pits.   The  liquid is
         first allowed to evaporate or percolate out of  the
         units.  The owner/operator then ignites  the remaining
         residue after the liquid is  removed.

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                                   OSWER Directive  No.  9523.00-18
                                -3-

         The Region contends that these units are surface
         impoundments and should be regulated under  Subpart  K.
         The Assistance Branch was asked to evaluate the nature
         of fe-hese units and identify the applicable  regulations.

         Surface impoundments may be used to store,  dispose  or
         treat hazardous waste.  The process occurring in  these
         units is the treatment of wastewater (which does  not
         have the potential to detonate) by dewatering with  the
         subsequent open burning of the residue.  Additionally,
         Section 260.10 specifically includes pits as an  example
         of surface impoundments.  Therefore, all requirements
         applicable to surface impoundments, including land
         disposal restrictions, November 8, 1988 retrofit
         deadlines, and minimum technology requirements,  apply
         to these units.  Subpart X is intended to cover  units
         not regulated elsewhere and will not replace or
         supercede any restrictions or requirements  contained in
         another Subpart.  Units that are containers, tanks,
         surface impoundments, waste piles, land treatment
         units, landfills, incinerators, boilers, industrial
         furnaces and injection wells are specifically excluded
         from Subpart X.

         If the Regional Administrator feels that the Subpart K
         standards do not provide adequate protection during the
         burning phase of the treatment process, additional
         permit conditions may be based upon the HSWA omnibus
         provisions in Section 3005(c) in order to protect soil
         a nd air.

    Contact:  Chet Oszman  202 or FTS-382-4499
2)   Open Burning/Open Detonation (OB/OD) Unit Requirements

         Non-military waste explosives can be open burned/open
         detonated if the waste has the potential to detonate as
         stated in Section 265.382.  If the waste explosives,
         including wastes consisting of part solvent, do not
         have the potential to detonate, the waste cannot be
         destroyed in OB/00 units.  Solvents contaminated with
         explosives to the extent that they have the potential
         to detonate may be open burned provided that the unit
         qualifies under either 264, Subpart X or 265,
         Subpart Q.  The open burning and detonation of waste
         explosives is considered to be a treatment process
         rather than waste disposal, and therefore the land
         disposal deadlines and restrictions do not apply.
         Treatment residues, however, may be subject to such
         restrictions.

    Contact:  Chet Oszman  202 or FTS-382-4499

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                                   OSWER  Directive No. 9523.00-18
                                -5-

         Even when commercial  fuels  are  used,  there  is the
         potential for ignitables or hazardous  constituents to
         be released to the surrounding  soil  and  surface water.
         The individuals responsible for conducting  the exercise
         should be advised to  prevent any such  releases.  In
         situations were releases do occur and  these releases
         may pose a threat to  human  health or to  the
         environment, a variety of Federal and/or State
         enforcement/cleanup authorities may  be called upon.

    Contact:  Chet Oszraan 202  or FTS-3&2-4499
Closure

1)   Use of Soil Background Levels for  Clean  Closure

         Several Regions requested clarification  on  setting  soil
         cleanup levels at facilities  that plan  to achieve clean
         closure.  As stated in the preamble to  the  March 19,
         1987 final regulations,  verified  reference  doses  (RfDs)
         and Carcinogenic Potency Factors  (now correctly called
         Carcinogenic Slope Factors, or  CSF)  can  be  used to
         determine cleanup levels for  contaminants when  they are
         available.  In cases where no Agency-recommended  levels
         exist, the soil cleanup level may be based  on either
         background levels or data developed by the
         owner/operator to support a health-based limit.

         Background levels can be determined in two  ways.   Soil
         samples can be taken from uncontaminated areas  of  the
         facility and at representative  depths.   The background
         samples must be taken in areas  that are not
         contaminated from spills or by  the  operation of the
         waste management unit or in some  cases,  by  the
         operation of any manufacturing  processes that may be
         present.  The second approach uses  published literature
         as the source of naturally-occurring levels in  similar
         soils to establish background levels.

         At one facility the chemicals of  concern were  lead and
         cadmium.  At that tine/ the Office of Research and
         Development (ORD) was evaluating  data on the toxicity
         of both of these substances.   While the toxicological
         information for lead and cadmium  was undergoing current
         review/ the RfD for cadmium  (0.0005 mg/kg/day)  was
         likely to be approved and could be used to set a soil
         cleanup level.  After applying the appropriate exposure
         assumptions/ the RfD translated into a cleanup level of
         9 rag/kg of cadmium.  The cadmium level proposed by  the
         owner/operator for the closure of their land disposal
         unit was acceptable as it was based on the proposed
         RfD.  (The RfD of 0.0005 mg/kg/day was approved on  May
         25, 1988.)

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                                   OSWER Directive  No.  9523.00-18
                                -4-

 3)  Permit Requirements for Waste Explosives

         The_Assistance Branch was asked to clarify the
         circumstances under which the disposal  of  explosives
         would require a permit and to define the point  at  which
         unused explosives become a waste.

         A Subpart X permit or interim status is necessary  for  the
         non-emergency open burning/open detonation of waste
         explosives.  The immediate response provisions  of
         Sections 264.l(g)(8), 265.1(c)(11),  and 270.1(c)(3)  allow
         an exception to the permit requirement  to  be made  in
         situations where the threat of explosion (i.e., the
         discharge or threat of discharge of a hazardous waste)
         presents an emergency situation.  If immediate action  is
         not required, but the threat to human health and the
         environment persists, the Director may  issue an emergency
         permit under Section 270.61(a), bring an imminent  hazard
         action under RCRA Section 7003, or perform a removal
         action pursuant to CERCLA Section 104.

         When explosives are fulfilling their normal use pattern
         and there is no intent to discard them, they are not
         hazardous waste nor are they subject to Subpart X.
         However, damaged or leaking explosives  or  other
         undetonated explosives that, for safety reasons, cannot
         be used (such as expired shelf life) are waste, and  can
         be hazardous waste.

    Contact:  Chet Oszman  202 or FTS-382-4499
4)   Applicability of Subpart X Permits to Fire Training Exercises

         Fire fighters routinely train by extinguishing blazes set
         as part of a training exercise.  Often various types of
         fuel are used to ignite the training structure.  The
         Assistance Branch was asked to determine if these
         exercises and training areas require Subpart X permits.

         The burning of commercial fuel in fire training exercises
         !• within the normal use of that fuel product.  However,
         verification must first be made to establish that the
         material to be burned is actually commercial fuel.  Once
         the material is verified as commercial fuel, burning in
         fire fighter training exercises does not constitute a
         RCRA regulated activity.  If the material to be burned  is
         not a commercial fuel but any other ignitable  hazardous
         waste such as used oil or spent solvents, this type of
         open burning is prohibited.

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                                   OSWER Directive No.  9523.80-18


                                -5-

         Bven when commercial fuels are used,  there is  the
         potential for ignitables or hazardous constituents  to
         be -released to the surrounding soil  and surface water.
         The individuals responsible for conducting the exercise
         should be advised to prevent any such releases,   in
         situations were releases do occur and these releases
         may pose a threat to human'health or  to the
         environment/ a variety of Federal and/or State
         enforcement/cleanup authorities may  be called  upon.

    Contact:  Chet Oszraan 282 or FTS-382-4499


Closure

1)   Use of Soil Background Levels for Clean Closure

         Several Regions requested clarification on setting  soil
         cleanup levels at facilities that plan to achieve clean
         closure.  As stated in the preamble  to the March  19,
         1987 final regulations, verified reference doses  (RfOs)
         and Carcinogenic Potency Factors (now correctly called
         Carcinogenic Slope Factors, or CSF)  can be used to
         determine cleanup levels for contaminants when they are
         available.  In cases where no Agency-recommended  levels
         exist, the soil cleanup level nay be based on  either
         background levels or data developed  by the
         owher/operator to support a health-based limit.

         Background levels can be determined  in two ways.  Soil
         samples can be taken from uncontaminated areas of the
         facility and at representative depths.  The background
         samples must be taken in areas that  are not
         contaminated from spills or by the operation of the
         waste management unit or in some cases, by the
         operation of any manufacturing processes that  may be
         present.  The second approach uses published literature
         as the source of naturally-occurring levels in similar
         •oils to establish background levels.

         At one facility the chemicals of concern were lead  and
         cadmium.  At that tine, the Office of Research and
         Development (ORD) was evaluating data on the toxicity
         of both of these substances.  While the toxicological
         information for lead and cadmium was undergoing current
         review, the RfD for cadmium  (0.0095 mg/kg/day) was
         likely to be approved and could be used to set a soil
         cleanup level.  After applying the appropriate exposure
         assumptions, the RfD translated into a cleanup level of
         9 rag/kg of cadmium.  The cadmium level proposed by the
         owner/operator for the closure of their  land disposal
         unit was acceptable as it was based on the proposed
         RfD.  (The RfD of 0.0005 mg/kg/day was approved on May
         25, 1988.)

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                                   OSWER Directive No. 9523.00-18
                                -6-

         The RfD for lead is  undergoing  revision as a result of
         new information on the neuro-behavioral effects of
         lead_.   The RfD workgroup is  not  expected  to reach a
         decision on the new  level  in the near  future.  Lead  is
         also undergoing evaluation  to determine if it acts as a
         potential carcinogen via oral exposure.   The
         determination of a CSF is  expected  to  take a while;
         therefore, soil cleanup levels  for  lead should be based
         on background levels.

    Contact:  Chris Rhyne  202  or FTS-382-4695


2)   Redesignating Unit Type during  Interim Status

         An owner/operator wishes to  redesignate a unit that has
         been operating as an interim status surface impoundment
         as a landfill.  The  owners propose  to  stabilize the
         waste,  retain the stabilized waste, redesignate the
         unit as a landfill and continue operations.  The bottom
         liner  system of the  unit does not meet the minimum
         technology requirements.  As a  surface impoundment,  the
         owners  must either retrofit  or  stop receiving wastes  by
         November 8, 1988.  If  the  unit  stops receiving waste,
         it must close in order to  comply with  Section 3005 (j)
         requirements.

         Under  Section 270.72(c), changes in process can be made
         during  interim status  only under the following two
         circumstances:

         (1)  It  is necessary  to prevent  a threat to human  health
         or the  environment because of an emergency situation,
         or;

         (2)  It  is necessary  to comply with  Federal regulations
         or  State or local laws.

         The Region concluded that  neither criterion  could be
         satisfied for this facility.

         In this particular situation, however, the authorized
         State  regulations which are  analogous to  Section
         270.72(c)  also allow for a change if "proposed  changes
         are demonstrated to  result in safer or environmentally
         more acceptable processes."   In order to  comply with
         the State condition, the owner  would have to
         demonstrate that a landfill  operating with  less than a
         minimum technology liner is  safer or environmentally
         more acceptable than a closed or retrofitted surface
         impoundment.  The Assistance Branch did  not believe
         that such a demonstration is possible and that the
         facility could not,  therefore,  meet the State
         requirement.  The State, however, ultimately would be

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                                   OSWER  Directive No. 9523.30-13
                                -7-

         responsible for determining  if  the  demonstration
         satisfies the condition for  a more  acceptable process.
         Note that if the unit conversion  were  allowed to take
         place, the unit would be an  existing  landfill unit, and
         not a new unit subject to MTRs.

    Contact:  Dave Eberly  202 or FTS-382-4691


RCRA Corrective Action

         In order to set cleanup standards at  a facility
         undertaking corrective action  to  remediate  releases from
         their solid waste management units, a  Region asked the
         Assistance Branch to clarify the  Agency policy  on
         determining cleanup levels,  compliance points,  timing of
         corrective action and the use of  institutional  controls.

1)   Cleanup Standards

         Promulgated standards should be used  as cleanup standards
         when they are available.  Maximum contaminant levels
         (MCLs),  established under the Safe Drinking Water Act
         (SDWA),  are available for some  contaminants and should  be
         used for a cleanup standard  for ground water  that  is  or
         potentially can be a source  of  drinking water.   When
         promulgated standards are not available, Agency
         health-effects data should be  used to derive  the cleanup
         level.

         EPA's Integrated Risk Information System (IRIS) provides
         current  Agency health assessments and regulatory
         decisions on many chemicals. When setting  cleanup  levels
         for carcinogens based upon the  Carcinogen Slope Factor
         (CSF),  the risk range should fall between 1 X  10   and
         1  X 10  .

         Standard exposure assumptions  for drinking  water should
         b« used  for setting cleanup  levels based upon verified
         reference doses (RfDs) and CSFs in ground water used, or
         potentially used, for drinking.  Cleanup levels in soil
         should be based upon exposure  assumptions corresponding
         to the potential land use.  For example, if children can
         play in  the area after cleanup and the soil contamination
         is surficial, the potential  for children to ingest soil
         must be  considered.  Guidance  on specific exposure
         assumptions and exposure scenarios is currently being
         developed.

    Contact:  Reid Rosnick  202 or FTS-382-4755

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                                   OSWER  Directive No. 9523.00-18


                                -8-

2)  Compliance Points for Soil and Ground Water Cleanup

         The objective of corrective action  to ground water is
         to restore beneficial use if possible.   In  cases where
         ground water is or has the potential  to  be  used  for
         drinking, cleanup should be throughout  the  plume.
         However, there are circumstances, such  as when  the
         waste is left in place or the unit  is still operating,
         that preclude cleanup throughout the  whole  plume.  In
         such situations, the compliance  point is at the  edge of
         the waste management unit.

         The compliance point for soils is any area  that  may be
         available for direct contact with the soils.   In cases
         where subsurface soils are contaminated  to  the  extent
         that ground water contamination  is  or has the potential
         to occur, soil cleanup levels should  be  set to  protect
         the ground water.

    Contact:  Reid Rosnick  202 or FTS-382-4755


3)   Timing of Cleanup Activities and Monitoring  of the  Site

         At this time, the proposed corrective action
         regulations will not establish a time frame for
         attaining cleanup levels.  A number of  factors  should
         be evaluated prior to setting a  schedule for a
         particular facility.  These factors are: (1)  the extent
         and nature of contamination; (2) the  practical
         capability of the remedial technology to meet  the
         objectives; (3) the availability of treatment  or
         disposal capacity for wastes; (4) the use of emerging
         technologies; and, (5) potential risk to human health
         and the environment from exposure prior to  the
         attainment of cleanup levels.  In general,  expeditious
         cleanup, particularly of off-site contamination, is  the
         goal.

         With respect to ground water corrective action under
         Subpazt P (Section 264.100), the owner/operator is
         required to monitor ground water during the compliance
         period (resume compliance monitoring) after cleanup
         activities have ended to demonstrate that the
         ground-water protection standard is being achieved.   If
         corrective action is ongoing at the end of the
         compliance period, corrective action cannot be
         terminated until the ground water protection standard
         is not being exceeded for three consecutive years.
         While this time frame has been applied   to corrective
         action from SWMUs, it is often difficult to demonstrate
         reliably that the standard has been achieved for three
         years in all hydrogeological settings.

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                               OSWER Directive No.  9523.00-18
                            -9-

     The Agency is proposing Section 3004(u)  corrective
     action regulations that determine the timing for
     demonstrating compliance based on a case-by-case
     basrs.  When selecting the length of time appropriate
     to determine compliance, the Region should consider the
     following: (1) the extent and concentration of the
     release;  (2)  the behavior of the hazardous constituents
     in the affected medium; (3) the accuracy of monitoring
     techniques;  (4) the characteristics of the contaminated
     media; and,  (5) any environmental, seasonal or other
     pertinent factors.

Contact:  Reid Rosnick  202 or FTS-382-4755
Use of Institutional Controls in the RCRA Program

     Institutional controls may be used to limit exposure
     during cleanup; however, they should not be viewed as a
     substitute for cleanup.  In some cases, the presence of
     institutional controls may allow final cleanup to be
     deferred if the owner/operator can assure that there is
     no potential for exposure.  Institutional controls may
     also be used in situations where technical limitations
     prevent compliance with cleanup standards.

     Institutional controls may be engineered features that
     prevent exposure such as fences or barriers.  They may
     also be non-engineered controls that prohibit access to
     ground water or limit use, such as deed restrictions.

Contact:  Reid Rosnick  202 or FTS-382-4755

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                                  OSWER Director No. 9523.00-18


                              -10-

RECOMMENDATIONS

Popping Furnaces

1)   Conducting Trial  Burns  Prior  to  the HSWA Deadline for
    Permitting Interim Status  Incinerators

          Because it  usually takes one year to  issue a permit
          after a trial  burn,  interim status facilities should
          schedule the trial burn prior to November 1988  in
          order to meet  the November 8, 1989 deadline for
          permitting  interim status  hazardous waste
          incinerators.   The Army has proposed  that the data
          collected from the trial burns conducted at one
          facility be applied  to  other popping  furnaces.  The
          only circumstances where an owner/operator can  use
          data from one  incinerator  in lieu of  conducting a
          trial burn  at  another  is when the two units are
          similar in  all significant respects including unit
          type, combustion  chamber size, dimensions of major
          components  and operating conditions.   In addition, the
          wastes burned  in  the other units must be adequately
          represented by the wastes  burned during the trial
          burn.  This means that  the types and  concentrations  of
          organic hazardous constituents and metals must  be
          similar.  The  incinerability, form, and ash content  of
          the waste must also be  comparable.

          The Assistance Branch  feels that the  use of data from
          a  trial burn at one facility in lieu  of trial burns  at
          the other facilities will  not be acceptable for all
          Army popping furnaces  because the units were  built by
          different manufacturers, are of different  ages, have
          worn differently  over  the  years, and  have  had
          different modifications made to then.

          An alternate proposal  by  the Army  is  to conduct "base"
          trial burn* at each facility using the wastes  that  the
          facility will  most often  burn after permitted.   A
          "large scale"  trial burn would also be conducted  with
          a  broad range  of  wastes at one facility  to represent
          the worst-case waste to be burned  in  any  of the units.

          The Assistance Branch  and  the  Incinerator Permit
          Writer's Workgroup agreed  that this  type  of approach
          could be acceptable for setting  a more flexible range
          of permit conditions for  the popping  furnaces provided
          that the "large scale"  trial  burn  is  conducted at 3 or

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                                   OSWER Directive No.  9523.00-13


                                 -11-

          4 facilities.  Furthermore,  the results from  each
          facility that conducted a "large scale" trial burn  must
          be consistent to allow the J.ata to be used  in lieu  of
          large scale trial burns at ill popping furnaces.   If  the
          results are not consistent,  permit conditions must  be
          based on the individual facility trial burns.

    Contact:  Sonya Stelmack  202 or FTS-382-4500


2)  Evaluation of Part B Applications for Popping Furnaces

          The adequate evaluation of a trial burn plan  for  a
          "popping furnace" involves additional criteria beyond
          that required for the evaluation of most incinerators
          since the explosive nature of the waste will  affect the
          combustion process and ash carryover.  For  example, in
          typical hazardous waste incinerators, the ash content  of
          the waste is the major variable along with  the
          efficiency of the air pollution control equipment that
          affects the release of particulate matter from the
          stack.  In the case of popping furnaces, the  explosive
          content of the waste must also be evaluated because of
          the potential effect on particulate formation and
          entrainment.  For popping furnaces it is possible that
          there are several "worst-cases" that must be  evaluated
          during a trial burn.  The waste burned in the trial burn
          should be selected for the "worst-case" with  respect to
          incinerability of Appendix VIII compounds,  particulate
          and metals emissions.

          The Assistance Branch has also been encouraging that
          metal limits be set to adequately protect human health
          and the environment under the authority of the omnibus
          provision (Section 3005(c)(3)).

    Contact:  Sonya Stelmack  202 or FTS-382-4500


Liner Requirements

1)  Use of In-place Hydraulic Conductivity Testing during Liner
    Installation

          The requirement to perform in-place  hydraulic
          conductivity testing on the soil liner of a  test fill
          was a condition of the final permit  for one  facility
          The owner/operator of the unit objected to the
          requirement and requested clarification of current EPA
          policy on the use of in-place versus  laboratory
          hydraulic conductivity testing.

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                                   OSWER Directive No.  9523.00-18
                                -12-

          The current EPA policy was adopted in May 1985  in  the
          "Draft Minimum Technology Guidance on Double Liner
          Systems for Landfills and Surface Impoundments  --
          Des-ign, Construction, and Operation" (see Reference 3,
          Attachment B).  The Agency maintains that in-place
          hydraulic conductivity testing is "the most accurate
          means of consistently determining the actual hydraulic
          conductivity of a constructed soil liner."  The guidance
          recommends that the in-place hydraulic conductivity test
          be performed on a test fill using the same equipment and
          techniques that will be used during the construction of
          the actual liner.

          EPA policy was reinforced by OSWER Policy
          Directive 19472.003 (See Reference 5, Attachment B),
          which was issued in October 1986.  This document
          presents further support to the Agency's position that
          in-place testing is superior to laboratory testing.
          This does not mean that laboratory testing is not a
          significant component of a construction quality control
          program.  Research, however, has shown that laboratory
          permeability tests often produce results that are one to
          three orders of magnitude lower than the actual
          hydraulic conductivity present in the field.  A
          satisfactory in-place hydraulic conductivity test does
          not have to determine the specific hydraulic
          conductivity but must document that it is less than 1 X
          10"  cm/sec.

          An unofficial survey found that the majority of Regions
          consistently implement the policy requiring in-place
          hydraulic conductivity testing.

    Contact:  Chris Rhyne  202 or FTS-382-469S


2)   Freeze-Thaw Concerns with Clay Layer in Final Cover

          A facility located in a northern state proposed to
          install the clay liner portion of the final cover  on
          their landfill only 24 inches below the surface.   In
          this section of the country, frost penetration was  36
          inches.

          The Assistance Branch was asked to evaluate  the proposed
          design.  Based on EPA guidance  (See Reference  3,
          Attachment B), we recommended that  the clay  layer below
          the flexible membrane layer  (FML) be completely below
          the average frost depth.  It is permissible  to allow  for
          snow cover in the frost depth calculations.  At  this

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                                   OSWER Directive No.  9523.30-18


                                -13-

          location, 6 inches of snow cover is typical;  therefore,
          we recommended that the soil layer above the  clay liner
          need be increased by only 6 inches instead of one foot.

    Contact.*-  Chris Rhyne  202 or FTS-382-4695


Hazardous Waste Stabilization

1)  Use of Natural Material in a Waste Stabilization Process

          A facility that planned to close its interim status
          surface impoundment needed to develop a site-specific
          process that would sufficiently stabilize its highly
          organic and oily waste material.  The facility engineers
          proposed to use cement kiln dust as the pozzolanic
          component in the process.  They also proposed to use
          caliche, a locally occurring form of calcium carbonate,
          as an absorbent in the process.

          In order to demonstrate that stabilization has occurred,
          the waste must be shown to have undergone chemical
          change.  The engineers conducted a series of laboratory
          and field tests with various proportions of the chemical
          additives.  They monitored soluble organic carbon  (SOC)
          levels in the leachate.  Based upon data showing that
          lower SOC levels were found in the leachate of
          stabilization mixtures containing caliche as well as the
          cement kiln dust, the engineers demonstrated that
          caliche was a necessary component in the stabilization
          process.  Considering these results and the increased
          strength of this stabilized material over time,  the
          Assistance Branch concluded that stabilization was
          occurring.

    Contact:  Dave Eberly  202 or FTS-382-4691


Permit Issuance

1)  HSWA Permit Preparation

          A Region prepared a draft HSWA permit  for a  facility by
          using the RCRA Corrective Action Plan  (CAP)  (See
          Reference 4, Attachment B) as a guide.  The  Region asked
          the Assistance Branch to comment on this  approach and
          the permit language.

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                                   OSWER Directive No.  9523.00-18
                                -14-

          While the Assistance Branch agreed  that  the  CAP was  the
          best currently available guide for  Regions to  use  to
          prepare HSWA permits, the CAP is more in the nature  of a
          checklist, fron which soecific permit conditions can  be
          developed.  Incorporation of general  CAP requirements
          directly into a permit is likely not  to  be specific
          enough.  (Please note that the Module for Corrective
          Action for Solid Waste Management Units  of  the Model
          Permit, distributed for review and  use on November 30,
          1988, is also an appropriate guide  for using Sections
          3004 (u) and (v).)

          Further, there are several points that the permit  writer
          must keep in mind when applying this  reference.   First,
          the CAP was designed to cover all possible corrective
          action requirements, including interim status  corrective
          action orders under Section 3008(h) as well  as permit
          requirements under Section 3004(u).  The permit writer
          must select the applicable Section  3004(u)  requirements
          from the "menu" of requirements presented in the  CAP.
          Certain CAP requirements related to Section  3008(h)  are
          not appropriate for permits.

          Second, the permit writer must/ for any individual
          facility, identify the information already  available in
          the Part B application and collected  during  the RCRA
          Facility Assessment (RFA).  It is not necessary to
          require information that has already been provided
          elsewhere.  Based upon this information,
          facility-specific permit conditions can be  developed
          using the CAP as a checklist, but not as a  model for the
          actual permit condition language.

    Contact:  Dave Eberly  202 pr FTS-382-4691


2)   Authority to Implement Subpart X Standards in RCRA Authorized
    States

          The Agency is using the authority under Section
          264.1(f)(2) to implement the regulations for
          miscellaneous units in all States at the same time,
          regardless of their authorization status. This authority
          exists independent of HSWA.  Section 264.1(f)(2)  applies
          specifically to the regulation of units not covered  by
          any Federal permit requirements at the  time that  an
          individual state program was authorized.  This authority
          was created to avoid the situation that no  permits  (such
          as Subpart X permits) could be  issued in an authorized
          state for several years after permit standards were
          promulgated by the Agency  (i.e., until  the  state
          receives Subpart X authorization).   Therefore, Subpart X
          requirements will be implemented by  CPA in  all

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                                   OSWER  Directive  No. 9523. 00-13
                               -15-

          states at the same time.   See OSWER  Policy  Directive
          #9489.00-2 (See Reference 1,  Attachment  B)  for  further
          clarification.

    Contact:   Chet Oszman  202 or FTS-382-4499


3)   Permitting Deadlines for Subpart X  Facilities

          The permit application  deadline of November 8,  1988  and
          the permit issuance deadline  of November 8, 1992
          promulgated in Section  3005(c)  of HSWA,  are relevant  to
          Subpart x facilities that had interim status as of
          November 8, 1984.  The  permit applications  due  in 1988
          need only address those units which were listed (or
          should have been listed)  in a facility's Part A
          application as of November 1984.  Any permit issuance
          made in 1992 need address only those units  subject to
          the 1988 application deadline (although  it  can  address
          other units as a discretionary matter).   This may mean
          that permit issuances in 1992 will be partial permits
          since only units with interim status before November 8,
          1984 must be addressed.  Regions are encouraged to
          notify interim status facilities in order to give them
          the opportunity to meet the November 1988 deadline.

    Contact:   Chet Oszman  202 or FTS-382-4499

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                                   OSWER Directive No.  9523.00-18
                           Attachment A
        Assistance Branch reviews included in this summary
Facility Name

Burnham Corporation
Foundry

CSSI

Hawthorne Army
Ammunition Plant

IBM

Morton Thiokol

SCA
(Model City)

R&D
Fabricating

Sinclair Oil

Tooele Army
Depot

Umatilla Army
Depot

Union Carbide
(Ponce, P.R.)

Union Carbide
(Sisterville, WVA)
Region
V
X
IX
I
VIII
II
VI
VI
VIII
Coordinator
Mark Salee
Chris Rhyne
Sonya Stelmack
Amy Mills
Chet Oszman
Chris Rhyne
Chet Oszman
Dave Eberly
Sonya Stelmack
Review Date
May 1988
May 1988
May 1988
April 1988
May 1988
April 1988
M*y 1988
April 1988
April 1988
 II
III
           Jim Michael
           Sonya Stelmack
Dave Eberly
Dave Eberly
May 1988

April 1988


April 1988


May 1988

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                               OSWER  Directive  No. 9523.30-19
                       Attachment B
List of Guidance Documents used in Preparing  the  Assistance
Branch Permitting Comments
     "Issues Relating to Miscellaneous Units,"  OSWER Policy
        Directive #9489.00-2 (April 26,  1988).

     "Hazardous Waste Miscellaneous Units;  Standards
        Applicable to Owners and Operators," Final Rule,
        Federal Register, Vol.  52,  No. 237. p.  46946.

     Minimum Technology Guidance on Double  Liner Systems  for
        Landfills and Surface Impoundments  -- Design,
        Construction, and Operation ,  DRAFT, EPA
        530-SW-85-014, (May 24, 1985).

     "RCRA Corrective Action Plan," OSWER Policy Directive
        19902,  (November 14, 1986).

     Technical  Guidance Document;  Construction Quality
        Assurance for Hazardous Waste  Disposal  Facilities, EPA
        530-SW-86-031, OSWER Policy Directive #9472.003,
        (October 1986) .

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OATC
'ROM
      OCT 22 B8?N|TED STATES ENVIRONMENTAL PROTECTION AGENCY      9523.1982(01)
     Existing  Incinerators and Data
     in Lieu of Trial Burn
     State Programs and
     Resource. Recovery Divison  (WH-563)

  TO
     Division  Directors, Regions I-X
          Having spoken with many EPA regional hazardous waste
     program personnel and operators of existing incinerators, it
     has become apparent that some confusion exists concerning
     trial burn plans and data in lieu of trial burns.  The purpose
     of this memo is to make clear that existing incinerators may
     submit data in accordance with the provisions of Section 122.25
     (b)(5)(iii) on wastes that hav« been combusted during interim
     status.  These facilities do not need to submit a trial burn
     plan for approval.

          Section 122.25(b)(5)(iii) sets out the requirements for
     submitting data in lieu of a trial burn.  A variety of
     information is required including a waste analysis plan and
     analytical results, incinerator engineering description, and
     actual sampling and analysis results demonstrating 9*. 99%
     destruction and removal efficiency of the principal organic
     hazardous constituent(s).  Also required is information on
     incinerator operating parameters which will lead to operating
     permit conditions under §264.345.

          The clear purpose of §122.-25(b) (5) (iii) is to provide
     data to specify operating conditions that will ensure compli-
     ance with the performance standards in §264.343.  Note that
     the standards in §264.343 are clear and explicit.  The
     incinerator must demonstrate 99.991 ORE as calculated by the
     formula given in the regulation; an incinerator producing HC1
     emissions of more than 1.8 kg/hr must control HC1 emissions
     to 1% of the uncontrolled amount or 1.8 kg/hr (whichever is
     more);  and particulate emissions must be controlled to
     180 mg/dscm corrected for the amount of oxygen in the stack
     gases.   These three\performance standards provide the only
     authority under the existing regulations for controlling
     emissions from hazardous waste incinerators.

          The standards for accepting data in lieu of a trial burn
     are found in the regulations.  Section 122.25(b)(5)(iv)
     provides that the Regional Administrator ("the Director")
     must approve a permit application without a trial burn if he
     finds that the wastes and the incinerators are sufficiently
     similar and the data provided is adequate to specify operating
     conditions ensuring ... "that the performance standards in
     §264.343 of this Chapter will be met by the incinerator."
     Clearly, an existing incinerator that obtains data on the
     waste it has combusted under interim status standards satisfies

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the requirements  for similarity of waste and incinerator design.
Similarly,'  to  satisfy the third requirement, the applicant
need only present the operating parameters  (as outlined in
§264.345)-used when compliance with §264.343 was demonstrated.
'These operating parameters then become permit conditions.  Thus,
the Regional Administrator lacks the regulatory authority to
require the owner-or operator of an existing incinerator to
submit a trial burn plan for approval before the operator
gathers performance data.

     Of coursei many operators of existing  facilities may wish
to submit trial burn plans voluntarily.  The emissions sampling
and analysis required is quite expensive and the selection of
POHCs is critical to the acceptability of data in lieu of
trial burn plans.  In order to avoid repeating the tests, an
operator may submit a proposed trial burn plan.  In this case,
the Director can review and approve an acceptable plan [see
§122.27(b)(4)].

     Finally, while reviewing the 24 June 1982 incinerator
regulations, one should keep in mind that the certification
requirement at 122.25(b)(5)(iii)(E)(3) should have been
deleted.   You received a memorandum dated 26 August 1982
that this is being corrected.

     I hope this has resolved the confusion regarding the
submission of data in lieu of a trial burn.  If you have any
questions, contact Randy Chrismon at 382-4535.

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                                                    9523.1983(02)
                RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                FEBRUARY 83
Question:       Does any part of a container storage Part B permit application
               need to be certified by a professional engineer; and, if so, does
               the professional engineer need to be registered in the State the
               facility is in?

Answer:        No technical data needs to be certified for container storage.
               Other  units like tanks that do require certification are not
               limited to State certified PE's,  but the Region should be con-
               sulted.

               Source:    Dave Fagan
               Research:  Irene Homer

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                                                            9523.1933(03)
                                  | 7 1983

MEMORANDUM


SUBJECTi  Land Owner Signature on Part A

FROHt     John Skinner
          Director
          Office of Solid Wastes (WH-562)

TO t       Tom Devine
          Director
          Air & waste Management Division
          Region 4


     Pursuant, to $270*10 both the owner and operator are required
to sign a permit application for a hazardous waste management
facility.  This dual signature requirement is the subject ot a  —^
recant proposal in the Federal Register (July 23, 1983) which
modifies the requirements cor Doth signatures so that, in certain
identifiable situations, the owner's signature may be waived by
the Director. *the preamble to the proposal summarizes the legal
basis benind the present signature requirements.  These
regulations were proposed as a result of the NRDC settlement.
They will have no effect on your questions.

     The answers to your specific questions aret

1.  Are incorrect signatures a criminal violation?  Yes, if tne
    signer knowingly signs the permit application either talsely
    or incorrectly.

2.  To what extent should we try to ascertain wr\o is the property
    owner (title search)?  You should generally assume the person
    claiming to be the property owner is the property owner.  A
    title search is an inappropriate use of resources unless you
    have good reason to believe the applicant is not the property
    owner.

3.  What risk and liability does EPA encounter if we issue a
    permit to the wrong party based on the part A which is
    incorrect?  None, however a permit writer wno accepts a
    signature that he knows is falae or incorrect and whose
    conduct is fraudulent under applicable state or Federal law,
    may be guilty of fraud.

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                                                                     £
                                                                     T
4.  Whose resources should be used  to cnecK proper  title?   in  the    2
    rare case where a title search  is needed,  the permitting         ^
    authority should conduct the title  search.                       iz
                                                                     *-
5.  Should we be concerned at all or just  let  the Public  Notice      ~
    serve to inform and if noi one  comes forward assume the         *i
    Part A signature is correct?  EPA must assume applicants  are     «
    dealing in good faith, except in those situations  where EPA      £
    has good reason to believe the  applicant is not.   Public         ^
    notice should serve to inform the public as to  who owns and      ^
    who operates the facility.   If  members of  the public  know  of     *
    an error, tney should so inform EPA.                             ^
                                                                     ^n
                                                                     ••
cc:  Hazardous waste Branch Chiefs  Regions l-x                      \
                                                                     Q)
                                                                     N
                                                                     a.
                                                                     w
                                                                     jr

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                                                              9523.1983(06)

             RCRA/SUPERFUND  HOTLINE  SUMHARIES

                         SEPTEMBER  83
If a  facility is in the  process of filing Part  B  of  its permit application,
can the application include any of the changes  which were proposed
(April 4, 1983, 48FRU472) for the new definition of solid waste?

    No  the permit application must reflect the hazardous waste regulations
   which are in effect  at the time of filing.   If the regulations change,
    it might be necessary to modify the draft permit or the permit.

       Source:  Steve Levy

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                                                                 9523.1984(01;
                                 JAN  I 7 .!£&
    Karsten Odland  .        ."•'•'"•:•: s .•"•"?• V • ,:ri'W  '  *•'   > '"
    813  forest  Road                 •   «
    La Grange Park,  Illinois  60525       •             >   -.

    Dear Mr. Odiandi    "  .. '.           w-:' .--    •„--,.'•'•>••"•        *"

          The Office  of General Counsel sent your  letter of October  3,
    1983,  to this office for a reply to your questions concerning the ..
    requlronents  for obtaining a hazardous waste  aanageaent facility's'-^ '•
    perait under  the Resource Conservation and  Recovery Act (RCRA).-«V-  «
    The  Office  of Solid waste Is responsible for  both  the technical •'***
    'standards and permit regulations under RCRA.  This letter  confiras
    th*  telephone conversation you had with a aeober of ey staff on
    this subject  and summarizes his discussion  of EPA's position.
    • »,-'; _• • •  '.-_''•'••'  ••   _v  :••• *   _•.•'•.'>••"  '."_••'  .' •  " •'•.-i>'•'•'•••'
       ''  In  your letter you discussed'.the problems  caused by :i
    an estimate  of the expected date of closure  in  the p*r»it  applica-
 ••' tion  for a hazardous waste nanagenent facility.   As you pointed
    out/  it  is difficult to determine the expected closure date of •"'-'
    a aanufacturing'facility since there is often..no intention to ~"J, ,.:
    close.   Tou'also expressed your reluctance to certify in the  ''/•"'
   • perait application that all the information  is  true and accurate
    if the facility does not Intend to close.", v-'-j^**^•-'-.."?'•   - '  '  !.

          EPA do«s not require a specific date of closure.  Our regula-
   . tions cnly require an estioate of the expected  date of ^closure. ••'-.
 ..f..:This  expected date, then allows EPA to .determine) if the*financial '.
s, ... assurance aechanisaa for. closure aro adequate, -i Tou can .note in '.-V
•v'f the application that'the date provided  1* only jin estimate..aince^r'
;.  .. thore are no current plana to close the facility. *-Tn"is nay '  :*"~~'
•.   .alleviate your concerns about the certification.  Additionally,  •*
V - the etitinated date of closure can b« changed as new information
. •_'•;• be cones  available or facility plans change).  ^:;:V;r~'.;^\"'it,_r>JsL   -;•..-

'." *:•'„•  •• .  I appreciate your bringing this natter  to^'our. attentio'n. y.-V*£'
    If you have  any further questions, please~do "not hesitate* to ..;'•.
    call  upon Mr. Cnas Miller of the Pernits  Branch."  He may be.*-  '
   : reached  at U.S. BPA, Off lev oC Solid Waste, 'Penal ts Branch,  ->.    v

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                                                                   9523.1984(021
         AP~  3 iS£yNITED STATES ENVIRONMENTAL PROTECTION AGENCY
  DATE

       Guidance on Petroleum Refinery Waste Analyses for Land
    uT Treatment Permit Applications

       John Skinne_r,_-Director(\j)  [
       Office of Solid Waste ,1^

    T0 Hazardous Waste PermitUBranch Chiefs,
       Regions I-X


       Introduction

            The purpose of this memo is to provide permit writers
       guidance on evaluating petroleum refinery waste analyses submitted
       in land treatment permit applications.  A list of Appendix
       VIII hazardous constituents suspected to be present in petroleum
       refinery wastes and a special analytical method for refinery
       wastes are  provided.

       Background

            The general Part B information requirements specified
       under S270.14(b) require the submittal of (1) chemical and
       physical analysis data on the hazardous wastes to be handled
       at the facility including all data that must be known to treat,
       store, or dispose of wastes properly in accordance with Part
       264, and (2) a copy of the waste analysis plan.  In addition,
       the specific information requirements under S270.20 require an
       owner/operator of any facility that includes a land treatment
       unit to submit "a list of hazardous constituents reasonably
       expected to be in, or derived from, the wastes to be land
       treated based on waste analyses performed pursuant to §264.13."
       Also, $270.20(a) stipulates that the description of the treatment
       demonstration plan must include a list of potential hazardous
       constituents in the waste.

            Because the design and management of a land treatment
       unit is based on the goal of attaining treatment of hazardous
       constituents (i.e., constituents listed in Appendix VIII), it  is
       very important that the presence of these constituents in the
       land treated wastes be accurately identified and quantified.
       This is best achieved through a comprehensive waste analysis
       for all Appendix VIII constituents.  However, due to the cost
       and analytical difficulties associated with these analyses,
       many applicants have submitted requests to conduct analyses
       for some  subset of Appendix VIII, which are "reasonably expected
       to be in or derived from the wastes to be land treated."  To
       date, the majority of wastes proposed for land treatment have
       been petroleum refinery wastes, specifically the listed wastes
       K048-K052.
EPA Porn 13204 
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     The evaluation of  these Appendix vm subsets for each land
treatment application has been difficult due to the lack of
published information on specific organic compounds in refinery
wastes, and also due to the variability of waste characteristics
within the refinery industry.  However, OSW has gathered sufficient
information from EPA research studies, in-house waste studies
and analyses, and refinery process evaluations to develop a
conservative list of hazardous constituents that are suspected
to be present in petroleum refinery wastes.  This list is
provided in Attachment  1.  This list should be used by permit
writers as a guide in determining which constituents may and
may not be eliminated from consideration when completing waste
analyses for a  land treatment permit application.  Additional
explanation of  the derivation and use of this list is provided
below.

Derivation and  Use of List

     The list of hazardous constituents suspected to be present
in refinery wastes was  derived from a review of data on petroleum
refinery wastewater and sludge characteristics from the following
sources:  (1) literature, particularly EPA research reports;
(2) in-house waste analyses completed by EPA research laboratories;
(3) preliminary data from the OSW refinery waste study; and
(4) an evaluation of petroleum refinery processes.  Although
these four sources were used, the data base on specific hazardous
organic constituents in sludges was still limited.  Considerable
weight was placed on wastewater data as indicators of sludge
characteristics (e.g.,  API separator sludge).

     Also, the  list in Attachment 1 is a generic list developed by
combining waste analysis data on all five listed refinery wastes
(K048-K052).   Due to the lack of extensive data, no attempt
was made to differentiate between the characteristics of these
five refinery wastes.  Until sufficient information is available
to allow development of separate lists for each waste, the
attached list should be considered applicable to dissolved air
flotation float (K048), slop oil emulsion solids (K049), heat
exchanger bundle cleaning sludge (K050), API separator sludge
(K051), and leaded tank bottoms (K052).

     To compensate for  the limited data base and variability among
refineries, the attached list is purposely comprehensive.
It includes a total of  89 hazardous constituents or groups
of constituents (e.g.,  trichlorobenzenes).  All of these con-
stituents have been identified as possibly being present in
the above referenced wastes.  Many of the compounds on the
list may be present at  low concentrations and others may not
be present at all in certain wastes at some refineries.

     The permit writer  should use the attached list as a guide
to the Appendix VIII constituents that should be addressed  in
-------
the up-front waste analyses and waste analysis plans for Part ,B
applications, that propose land treatment of petroleum refinery
wastes.  A permit applicant may further refine this list by
providing derailed evidence that certain hazardous constituents
cannot be present in the listed wastes at that particular
refinery.  In most cases, however, waste analysis data on the
constituents listed in Attachment 1 will be necessary to make this
showing.

Analytical Methods

     To assist in the analysis for specific organic constituents
in petroleum refinery wastes, OSW has developed a column cleanup
procedure which is provided in Attachment 2.  This draft method
is used specifically to separate semivolatile aliphatic, aromatic,
and polar compounds in the waste matrix.  The method should be
used only by experienced residue analysts.  Volatile compounds
are determined using method 8240 with PEG (tetraglyme) Extraction.
Test method 3050 should be used for all metal analyses.  These
methods are described in SW-846.

Relationship to Delisting and Listing Efforts

     Finally, the attached list is consistent with the waste
analysis information that EPA has requested from delisting
petitioners.  Many petroleum refinery operators who are preparing
Part B applications for land treatment facilities also have
submitted delisting petitions to the Agency for one or more of
their wastes.  It is important that the waste analysis data
requested by the Agency for permitting and delisting be consistent,
although there may be differences in the extent of data necessary
in certain cases.  Therefore, the list of Appendix VIII constituents
provided in Attachment 1 is also being used in refinery delisting
actions.  Additional information on non-Appendix VIII constituents,
however/ is being collected as part of OSWs new waste assessment
and listing efforts for petroleum refineries.  These compounds,
which are listed at the end of Attachment 1 for your information,
may be added to Appendix VIII in the future.  Although it is
not required at this time, permit applicants should be encouraged
to provide information on these waste constituents.

     If you have any questions on the listing of specific
hazardous constituents in Attachment 1 or on the recommended
test methods, please contact Ben Smith (382-4791) of the Waste
Identification Branch.  Other questions pertaining to the use
of the above guidance in permitting land treatment facilities
should be directed to Mike Flynn (382-4489) of the Land Disposal
Branch.

Attachments

cc:   Jack Lehman                   Matt Straus
      Fred Lindsey                  Bruce Weddle
      Ken Shuster                  ^eter Guerrero
      Eileen Claussen
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                                  ATTACHMENT 1

   Appendix  VIII Hazardous Constituents Suspected to be Present in Refinery  Wastes


 *'Acetonitri le  (Ttffaneni tri le)
 **Acrolein  (2-Propenal)
 "Acrylonitri le (2-Propenenitri le)
  Aniline (Benzenamine)
  Antimony
  Arsenic
  Barium
  Benz  (c)  acridine (3,4-Benzacridine)
  Benz  (a)  anthracene  (1,2-Benzanthracene)
 **Benzene (Cyclohexatriene)
  Benzenethiol   (Thiophenol)
  Benzidine  (1,1-Bipheny1-4,4"diamine)
  3enzo(b)f1uoranthene  (2,3-Benzofluoranthene)
  Benzo(j jfluoranthene  (7 ,8-Benzofluoranthene)
  Benzo(a)pyrene (3,4-Benzopyrene)
 **Senzy1  chloride (Benzene, (chloromethyl)-)
  Beryl 1 ium
  Bis (2-chloroethyl) ether (Ethane, l,l'-oxybis (2-chloro-))
  Bis*(2-chloroisopropyl) ether (Propane, 2,2"-oxybis (2-chloro-))
 **Bis (chloromethyl) ether (Methane, oxybis (chloro))
  Bis (2-ethylhexyl) phthalate (1,2-Benzenedicarboxylic acid,  bis (2-ethylhexyl)  ester'
  Butyl benzyl   phthalate  (l,2-Benzened1carboxylic acid, butyl  phenylmethyl  ester)
  Cadmium
  Carbon  disulfide  (Carbon bisulfide)
  p-Chloro-m-cresol
 **Ch1orobenzene (Benzene, chloro-)
 **Chloroform (Methane,  trichloro-)
 **Chloromethane (Methyl chloride)
  2- Chloronapthalene  (Naphthalene, beta-chloro-)
  2-Chlorophenol (Phenol, o-chloro-)
  Chromium
  Chrysene  (1,2-Benzphenanthrene)
  Cresols (Cresylic acid) (Phenol, methyl-)
**Crotonaldehyde (2-Butenal)
  Cyanide
  Oibenz(a,h)acr1dine  (1,2,5,6-DibenzacMdlne)
  Dibenz(a,j)acrid1ne  (l,2,7,8-D1benzacr1d1ne)
  Dibenz(a,h)anthracene (1,2,5,6-Dlbenzanthracene)
  7H-Dibenzo(c,g)carbazo1e (3,4,5,6-Olbenzcarbazole)
  Dibenzo(a,e)pyrene (1,2,4,5-Dlbenzpyrene)
  Dibenzo(a,h)pyrene (1,2,5,6-Dlbenzpyrene)
  Oibenzo(a,1)pyrene (1,2,7,8-Olbenzpyrene)
**l,2-Dibromoethane (Ethylene dlbromlde)
  D1-n-butyl phthalate  (l,2-Benzened1 carboxyl ic add, dlbutyl  ester)
 *0ichlorobenzenes
**l,2-Dichloroethane (Ethylene d1chloride)
**trans-1,2-Di chloroethene (1,2-01chlorethylene)
**l,l-0ich1oroethylene  (Ethene, 1,1-dichloro-)
**0ichloromethane (Methylene chloride)
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 **Dichloropropane
  Oicnloropropanol
  Diethytl phthaJate (1,2-Benzenedicarboxylic acid, diethyl  ester)
  7,12-Dimethyl-benz(a)anthracene
  2,4-Dimethylphenol (Phenol, 2,4-dimethyl-)
  Dimethyl phthalate (1,2-Benzenedicarboxylic acid, dimethyl ester)
  4,6-Dinitro-o-cresol
  2,4-Oinitrophenol (phenol, 2,4-nitro-)
  2,4-Dinitrotoluene (Benzene, l-methy1-2,4-dinitro-)
  Di-n-octyl phthalate  (1,2-Benzenedicarboxylic acid, dioctyl ester)
 **1,4-Dioxane  (1,4-Oiethylene oxide)
  1,2-Diphenylhydrazine  (Hydrazine, 1,2-diphenyl-)
 **Ethyleoeimine (Azridine)
 **Ethylene oxide (Oxirane)
  Fluoranthene (Benzo (j,k) fluorene)
 **Formaldehyde
  Hydrogen sulfide  (Sulfur hydride)
  Indeno  (1,2,3-cd)pyrene (1 10(1,2-phenylene)pyrene)
  Lead
  Mercury
  Methanethiol (Thiomethanol)
  3-Methylchlolanthrene  (Benz(j)aceanthrylene, 1,2-dihydro-3-methyl-)
 **Methyl ethyl ketone (MEK) (2-Butanone)
  Naphthalene
  Nickel
  p-Nitroaniline (Benzenamine, 4-nitro-)
  Nitrobenzene (Benzene, nitro-)
  4-Nitrophenol (Phenol.pentachloro-)
  Pentachlorophenol (Phenol, pentachloro-)
  Phenol (Benzene,  hydroxy-)
  Pyridine
  Selenium
**Tetrachloroethanes
**Tetrachloroethylene (Etnene, 1,1,2,2-tetra chloro-)
**Toluene (Benzene, methyl-)
 *Trichlorobenzenes
**Trichloroethanes
**Trichloroethene (Trlchloroethylene)
 *Trichloropheno1s
  Vanadium
       * If any of these groups of compounds are found, the specific
         isomers listed in Appendix VIII should be Identified.

      ** Use Test Method 8240 for these volatile compounds.

     *** Use Test Method 3050 1n SW-846 for all metals; see
         Attachment 2 for semi volatile organic compounds.
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Non-Appendix VIII Constituents of Concern (may be added to ADD.  VIII)

Cobalt                               Indene
1-Methylnapthalene                   5-Nitro acenaphthene
Styrene                              Quinoline
Hydroquinone                         Phenanthrene
Anthracene                           Pyrene
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                         ATTACHMENT 2



              Column Cleanuo of Petroleum Wastes
Introduction
   The following procedure is intended for application to the
analysis of semivolatile organic compounds in oily waste
samples.  Its application is necessary in those cases where
the conventional cleanup procedures (Methods 3510, 3520,
3540, 3550) fail to provide suitable detection limits (approx-
imately lOppm) for the semivolatile compounds specified in
Attachment 1.  Analysis of the cleaned-up extracts should be
performed according to Method 8270, a capillary GC/MS technique.

   It should be noted that this procedure is in draft form.  It
may be modified as more experience is gained.

Cleanup Techniques

   It is anticipated that after a sample is subjected to
conventional extraction procedures (Methods 3510,3520, 3540,
and 3550) or after dilution, a cleanup step may be required
to remove matrix interferences and yield acceptable detection
limits for compounds of interest.  Determination as to whether
an extract needs to be cleaned can usually be provided by either
examination of the sample itself or by knowledge of the
particular waste stream that was sampled.  It is also possible
to estimate whether or not the extract is suitably clean for
GC/MS analysis.  An aliquot of the methylene chloride extract
can be evaporated to dryness and the total amount of material
in the aliquot weighed.  In general, if the extract contains
less than a few milligrams of material per millilitre of
solvent, it is probably clean enough for capillary CG/MS.   If
it contains more materials, it will likely require additional
preparation.

   In most instances, some type of cleanup technique will be
necessary in order to achieve suitably low detection limits
for the target compounds.  If much aliphatic material exists
in the sample it will mask the compounds of interest.  Mere
dilution will not remedy the situation as detection limits
are raised by the dilution.

   If acidic compounds such as phenols are suspected of
being present in the sample, a separate fraction containing
these acids can be created using the organic extract obtained
above.  Methods 3530, a base/neutral acid cleanup extraction
technique, may be applicable to the cleanup of certain sample
types.  Modifications to Methods 3530 are as follows:
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    a)   In Section  7.6,  the organic and aqueous phases are both
        treated as  containing compounds; and

    b)   Section 7.15 will not be necessary.

The aqueous phase, when transferred to organic solvent after
Section 7.13, will contain acidic compounds.  The organic
phase contains basic and neutral compounds.  In most instances,
the acidic fraction will be clean enough  for GC/MS analysis.
The base/neutral extract, however, may require further cleanup.
Thus, a cleanup procedure has been devised  for base/neutral
extracts that minimizes the interferences caused by high
concentrations of  aliphatic and polymeric materials.

   Although the cleanup procedure is thoroughly described in
the next section,  one generally proceeds  as follows.  The sample
is subjected to cleanup by placing a representative aliquot
of the  sample on an alumina column and successively eluting
with hexane, methylene chloride, and diethyl ether to yield
3 fractions containing the aliphatic (hexane fraction), aromatic
(methylene chloride fraction) and polar compounds (ether
fraction).  The methylene cloride fraction  is then concentrated
to about 1 ml. and then is analyzed by GC/MS for the compounds
of interest.  The  hexane concentrate can  be screened by
GC/MS to determine if compounds were eluted into the hexane
fraction.  However, this usually will not be required.  If
polar compounds are of interest, the ether  fraction is also
analyzed.

   Ouantitation of the semivolatile constituents in Attachment 1
is to be performed using the reverse search technique.
Additionally, tentative identification should be attempted
for the ten organic compounds detected at the highest concen-
trations.  Identifications should be made via a forward
search of the EPA/NIH mass spectral library.  Concentrations
should be approximated by comparison of the compound response
to that of the closest eluted internal standard.  A procedural
blank, matrix spike, and duplicate should be analyzed for
every batch of samples.

   Accuracy and precision control charts  should be maintained
for indicator constituents.  The percent  recoveries of spiked
surrogate standards for a given sample-type should be plotted
versus sample identification number.  Table 1 contains a list
of the surrogate compounds to be employed for the analysis of
semivolatile organic compounds, and recovery limits.  Recovery
limits are based upon obtaining*a final extract sufficiently
clean/ such that the surrogate compounds  should be present at
50 ppm or higher in the extract.  If dilution of the sample is
still required/ detection of the surrogates may be difficult
and the associated recoveries imprecise or  non-existant.
Such samples should be spiked with higher surrogate levels
and resubjected to the cleanup procedure.
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Table 1.  Surrogate Standards for Semivolatile Organic
          Compound Analysis
                                          Recovery Limits

          Acid surrogates
               phenol-d5                   40-115%
               2-fluorophenol
               2,4,6-tribromophenol

          Base/neutral surrogates
               nitrobenzene-ds
               5-fluorobiphenyl             50-120%
               terphenyl-di4
               acridine-dg
               pyrene-dio
   The precision control chart should consist of the percent
difference for indicator constituent concentration determined
in duplicate samples of a given sample type versus sample
identification numbers.

Column Clean Up of Petroleum Wastes

Scope and Application

   This method is used to cleanup samples containing high
levels of aliphatic hydrocarbons, such as wastes from petroleum
refining.  It is used specifically to separate aliphatics,
aromatics, and polar compounds in the waste matrix.  This
method is applicable to API separator sludges, rag oils, slop
oil emulsion/ and other oily wastes derived from petroleum
refining.  This method is recommended for use only by or
under close supervision of experienced analysts.

Summary of Method

   Take a 200 mg aliquot of the waste/methylene chloride
concentrate from step 7.13 of Method 3530.  Dissolve the
aliquot in hexane and spike with lOmg each of dg-acridine,
d5~nitrobenzene, ds-phenol, 2-fluorobiphenyl, tribromophenol,
di4~terphenyl, 2-fluorophenol, and dio-pyrene.  Apply the mixture
directly to the alumina column.

   The column is eluted sequentially with hexane, methylene
chloride, and diethyl either and the corresponding three
fractions are collected.  An aliquot of the CH2C12 fraction
is evaporated under a gentle stream of nitrogen and weighed  to
determine the appropriate concentration factors prior to
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GC/MS.  Ir pyrene or terphenyl is recovered at less than 50%,
the procedure should be repeated.

Interferences

   Matrix interferences will likely be coextracted from the
sample.  The extent of these interferences will vary considerably
from waste to waste depending on the nature and diversity of
the particular waste being analyzed.  The use of additional
cleanup extractions can be used as necessary for specific
compound identification and quantitation.

Apparatus

Glass Column:  30 cm long x 1 cm I.D. with glass frit or
               glass wool and stop clock.

Aluminum weighing boats:  Approximately 2 in. in diameter.

Analytical Balance:  Capable of weighing to +0.5 mg.

Concentrator Tube, KD, 10 ml

Evaporative Flask, KD, 250 ml

Snyder Column, KD, three-ball micro

Snyder Column, KD, two-ball micro

Steam 3ath

Boiling Chips:  10-40 mesh carbarundum.  Heat to 450°C for 5-
                10 hours.

Syringe:  1 ml glass

50 ml beaker

250 ml beaker

Reagents

Hexane:  Distilled in glass (B&J) or equivalent

Methylene Chloride:  Distilled in glass  (B&J) or equivalent

Diethyl Ether:  Distilled in glass  (B&J) or equivalent

Alumina:  Dried overnight at 130°C, neutral 80-325 MCB
          chromatographic grade

Sodium Sulfate:  Washed with CH2C12 and heated to  150°C for 4
                 hours
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Or-
  ocedure
Weigh  out^-lILO gm of alumina and add to the chromatographic column
that is  filled to about 20 mL with hexane.

Allow the alumina to settle and then add 0.5 gm sodium sulfate.

Let the  solvent flow such that the head of liquid  in the column
is about 1 cm above the sodium sulfate layer.  Stop the flow.

Add the  aliquot equivalent to 100-200 mg of material.

Start the flow and elute with 13 ml of hexane.  Collect the
effluent in a 50 beaker.  Label this fraction "aliphatics".

Slute the column with 100 ml of methylene chloride and collect
the effluent in a 250 ml beaker.  Label "aromatics".

Elute the column with 100 ml of diethyl ether and  collect  the
effluent in a 250 ml beaker.  Label "polars".

Weigh three sample boats to the nearest 0.5 mg.  Reduce the
volume of each fraction using the KDs to between 1 and 5 ml.
Record the volume of each and place 1/2 of each sample in  the
respective boat.

Evaporate the liquid in each boat under a gentle stream of
nitrogen.  Reweigh each boat and record the weight of each fraction.

Calculate the weight of each fraction as a proportion of the
total sample.  For example, fraction 1 is 56.3 mg, fraction 2
is 25.4 mg, and fraction 3 is 85.0 mg.

Calculate the amount of sample in the fractions and adjust
the volumes so injection will permit determination of various
components on scale

                 12.7 mg/2500 ul » 5.1 ug/ul

Dilute each of the three fractions obtained by a ratio so
that the sample entering the capillary column does not exceed
2.5 ug.  For example, if the calculated weight of  the fraction
as a proportion of the total sample is 12.7, and the amount of
sample in the fractions is 5.1 ug/ul as in the above example,
dilute the sample 1:1 with methylene chloride.

Quality Control

Before processing any samples, the analyst should  demonstrate
through the analysis of a distilled water method blank that
all glassware and reagents are interference-free.  Each time a
set of samples is extracted or there is a change in reagents,
a method blank should be processed as a safeguard  against
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chronic laboratory contamination.  The blank sample should be
carried through all stages of the sample preparation and measure-
ment.  Standard quality assurance practices should be used
with this method.  Laboratory replicates should be analyzed
to validate the precision of the analysis.  Fortified samples
should be carried through all stages of sample preparation
and measurement; they should be anlayzed to validate the
sensitivity and accuracy of the analysis.
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                                                                          9523.1984(03)
                          RCRA/SUPERFUND HOTLINE  SUMMARY

                                        APRIL  84
4.  Must a company's Part B permit application submission Include a  closure date if
    the company  has no plans for closure 1n the near future?

         Yes;  270.14(b)(13) requires  a  closure plan to be submitted  with the Part B
         application, and the estimated closure date 1s part of  that closure plan
         (264.H2(a)(4)).  Later, if  the estimated closure date  changes, the closure
         plan  must be amended as a minor modification to the permit  (270.42(g)).
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                                                 9523.1984(04)




                     RCRA/SUPERFUND HOTLINE SUMMARY

                                    MAY  84
The "Permit  Applicants Guidance Manual for Ha:irdous Waste Land Treatment.
Storage,  ano Disposal Facilities" (final  draft,  SW-970), provides check lists
of all  tne information requirements and associated  permitting standards
tna:  an appjicant for a land treatment, storage,  or disposal facility may  neea
to address.  Are these check lists to be be us»d as a  format for preparing
a Part  8  application?

     The checx  lists can be used as an application  format.  The check
     lists are  provided as a tool for both the  applicant and permit reviewer
     to use  as  a reference to ensure that all  information required Is
     include^ in the application.  The check lists  should be Included in tne
     application to aid the reviewer.  The check lists allow an applicant  to
     indicate the location in the application  of information responding to
     each requirement.  There are no formal application format requirements.

     Source:    Art Day
     Research:  Gordon Davidson
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                                                                9523.1984(06)
                      PERMIT POLICY Q & A REPORT

                              TRIAL BURN

                         SEPTEMBER 10, 1984
 Trial Rum*

 1.  Questions  Has the Agency issued any RCRA pernits .for incinera-
 tion on the basis o? data submitted in lieu of a trial burn? 40
 CPR 270.19(c) and (d).

 Answer:  The Agency has net yet issued any P.CRA incineration
 peraits on the basis of data obtained fron other incinerators in
 lieu of a trial burn.  Zn order for data subnitted in lieu of-a
 trial burn to be acceptable, the incinerators and the wastes must
 be sufficiently sinilar so that the perait writer can confidently
estarllsh incinerator or«r»tin:; condition* for th* second incinerator
witnout tn^ Benefit cf a tri*l turn.
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                                                                9523.1984(07)
                     PERMIT POLICY Q & A REPORT

                            DEFINITION

                        SEPTEMBER  10,  1984
2.  Question:  Can EPA declare a Part B application conplete
even thou'jh the applicant has not *ubnittert ground-water moni-
toring (GWM) data? 40 CrJ} 264 Sucpart ? and 40 CPR 270.14(c)
                               •       '
Answer:  N'o.  The Agency cannot declare a permit application .
ccr-.pleto without ground water recnitoring data.  The Agency can
use enforcement to secure facilities* compliance with Part 265
ground water ncnitoring requiracents, $3013 orders if a substan-
tial hazard is suspected, and the authority of 40 CFR 27Q.14(c.)
to obtain the necessary ground water r.onitoring information.
More detailed guidance on this issue will be issued shortly.
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                                                               9523.1984(08)
                     PERMIT  POLICY Q & A REPORT

    PART B  INFORMATION REGARDING FUTURE POTENTIAL EXPANSIONS

                        SEPTEMBER  10,  1984
 5.   Question:  Car an applicant submit  Information along with
 his  Part  b,  for potential expansions to his facility and obtain
 a pomit  for those expansions when he has no definite expansion
 date.   40 CFR 270.10(f).
                 *
 Answer:   Yas.  Tno applicant, however/  oust submit infomation
 at tne  sane  level of detail as if construction were to begin
 iraaediately  upon receipt of a RCSA perait or at a later date,
 consistent with a schedule of compliance specified in the perait.
 The  Part  B application oust be in such  detail that tho perait
 writer  can draft an enforceable perait  and so that there can b«
 etttanir.gful public participation and review of the proposed facility
 and  pernit conditions.  In other words, ho mitt fully satisfy
 all  the information requirements of a Part B application and
 the  Part  264 standards for a new facility.  This is.difficult to
 do in the absence of specific plans.  In addition* when the
 applicant does finally decide to undertake the expansion/ he
 aust conform exactly to the plans and specifications contained
 in the perait.  Applicants without firm expansion plans should
 be encouraged to restrict their pemit  application to the existing
 facility  and to request a najor Bonification when the expansion
plans and schedule are definite.  The applicant/ however/ should
 be warned that a major notification of  this nature could/ in
effect/ constitute a new application.   The applicant should also
be advised of any relevant regulations  regarding the.procedures
for expanding the capacity of a permitted facility."
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             UNITES STATES ENVIRONMENTAL ?RCTE=7:CN AGENCY         9523.1984(10

                        WASHINGTON. D.C. :
                             3 .r;-.
MEMORANDUM

SUBJECT:  Recent Clarifications of RCRA Authorities
FROM:     Peter Guerrero
          Branch Chief
          Permits Branch  (WH-563)

TO:       Section Chiefs
          Regions I-X


     The attached documents clarifys your authority in two important
aspects of the RCRA permit program.  First, you will find a decision
issued by the Chief Judicial Officer in the case of City Industries,
Inc.  That decision reversed the ALJ's holding that EPA lacks the
authority to assess penalties under Section 3008 of RCRA for failure
to submit a complete RCRA permit application.

     The second attachment is a technical change, announced in the
Federal Register, which clarifies our authority to apply Part 265
standards until closure and post closure responsiblities are ful-
filled.  Previously, the wording of $265.1 implied that once a
facility's interim status was terminated the facility would no
longer have to meet $265 interim status standards, i.e. closure,
post closure, and financial responsibility.  However, EPA has the
statutory authority under Section 3004 to enforce the Part 265
standards at facilities which no longer have interim status.  The
revisions to $265.1 makes it clear that Part 265 requirements apply
to RCRA facilities until either a permit is issued or until all
applicable Part 265 closure and post closure responsibilities are
fulfilled.

Attachments
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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     _<                        REGION iv
                           343
                           ATLANTA StO«CIA3038S
MEMORANDUM
   DATE:  November 29, 1984
SUBJECT:  Administrator's Decision Regarding Authority Under RCRA
          Section 3008 to Assess Penalties for Failure to Submit
          a Complete and Adequate ^Part B Application
   FROM:  James H. Sargent
          Regional Counsel,
     TO :^Lee Thomas  (WH-562A)
          Courtney Price  (LE-133)
          Lisa Friedman  (LE-132S)
          Regional Counsels
            Regions I-III and V-X

     Attached is a copy of the decision issued by the Chief
Judicial Officer on November 21, 1984 in the case of City
Industries, Inc., Docket No. 83-160-R-KMC.  That decision reversed
the ALJ's holding that EPA lacks the authority to assess penalties
under Section 3008 of RCRA for failure to submit a complete and
adequate Part B RCRA permit application.  This affects many pending
enforcement cases in the regions and reaffirms our authority to
seek penalties for deficiencies in Part B RCRA permit applications.

Attachment
cc:  RCRA/CERCLA Team Leaders
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                     BEFORE THE ADMINISTRATOR
               D.S. ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C.
In the Matter o f:

City Industries, Inc.,

  Ret pondenc

RCRA 83-160-R-KMC
RCRA (3008)
Appeal No.  83-4
                             ORDER
     This appeal is from an order of an Administrative Lav

Judge (presiding officer) dismissing an administrative complaint
                                                    y
brought against City Industries, Inc. (respondent). ~~   In

that order the presiding officer held that it was inappropriate

to assess a civil penalty against respondent for its alleged
                                                           II
failure to submit "Part B" of its RCRA permit application. ~~

For the reasons seated below, the initial decision it reversed

and this proceeding is remanded Co Che presiding officer for

further proceedings consistent with  this order.
y 40 C?R I22.20(b) provides that such an order constitutes aa
Initial decision.  Aa iaitial decision is appealable Co Che
Administrator or his delegatee pursuant to 40 CFR 122.30.

2_/ The Resource Conservation aad Recovery Act of 1976 (RCRA),
Ts amended, 42 O.S.C. S6928(a)(l) et seq., requires any person
who owns or operates a hazardous waste management (HWM) facility
to obtain a RCRA permit from Che Agency.  Pursuant to Agency
regulations, owners or operators of  facilities la existence on
November 19, 1980, are allowed to continue la operatioa, pending
the Agency's final permit determination, if, among other things,
they submitted Part A, aad subsequently, Part B of the RCRA permit
application.  See aotes 4 aad 5, lafra, for descriptions of
"Part A" and "Part B" of the RCRA permit application.
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                              -2-


Background

     Respondent owns and operates a hazardous waste storage

facility which was doing business In Orlando, Florida on November
          2/
19, 1980.     RCRA regulations provide for a bifurcated perait

application procedure Cor facilities In existence on that date,

i.e., so called "existing facilities."  An owner of an existing

facility is required to submit Part A of  its permit application
       */
first. ~~   Subsequently, at eh* Agency's  request, the owner of

•uch a facility is required to submit Part B of its permit
             £/
application.

     Respondent timely submitted Part A of ics permit application
                                             I/
and, accordingly, attained "interim status." ~~   However, when
3/ Although respondent is no longer receiving hazardous waste at
this facility, it continued to store hazardous waste for some
period of time thereafter and accordingly was required to have
a permit.  See 40 CFR S270.1 (1983).  See EOF v. Lamphier, 714
F.2d 331, 335 (4th Cir. 1983).  The record does not show whether
respondent is currently storing hazardous waste.

4/ Part A must contain the information listed in 40 CFR 1270.13
Tl983).  This includes a description of the hazardous wast*
activities which are conducted at the facility, the name and
location of th« facility, certain information identifying che
facility's operator and owner, a scale drawing of the facility,
• description of what processes will cake place at the facility,
e.g., treatment, storage, disposal, Che design capacity of
these items, identifieatioa of Che hazardous waste to be handled
at the facility, Che quantity of hazardous waste to be handled  at
the facility, and a topographic map.

5/ Part B must set forth information relating to a facility's
operational procedures, such as security arrangementa, closure
plan, flood plan, detailed plans for ground water monitoring,
etc. 40 CFR 11270.14-29 (1983).  The information required to be
submitted as Part B of the permit application is more extensive
and detailed than that required for Pare A.

6/ Vhen a Part A application for a  facility is submitted  to
The Agency (together with preliminary notification of hazardous
wsste activity required by RCRA 13010), the facility  is authorized
to operate on an interim ststus basis, i.e., pending  the  Agency's
final decision on the  facility's permit application.
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                              -3-
EPA Region IV subsequently requested Pare B of Che application,

Che materials which respondent subaitted were unacceptable  to
            1J
the Region.     Consequently, the Region filed an administrative

complaint against respondent charging that it violated 40 CFR

§270.lO(e) which require* an existing facility to submit Part  B

of its peraic application when so requesttd by Che Agency.   A

civil penalty of $5,000 was sought  in che complaint for this

alleged violation.

     In its answer co Che complaint, respondent contended that

Ics Pare B application was adequate and che Region should have

accepted it.  Alternatively, respondent contended that "failure

Co submit [an adequate] Pare B application is not an sccion

cognizable under the Keaource Conservation and Recovery Act for

purposes of asse-ssment of civil penalties." (Emphasis added.)

The presiding officer agreed vith chis latter contention and

dismissed che administrative complaint with prejudice.  This

appeal followed.

Discussion                                  _	

     The sole issue on appeal is whether a civil  penalty can

be assessed against an owner of an  existing HUM facility who,

despite the Agency's request to do  so, fails  to submit  an
7/ The Region gave respondent a number of opportunities  to
correct deficiencies which it had identified ia respondent's
Part B application.  Although respondent made  attaapts at
correcting them, it failed to submit a Part B  application which
was acceptable  to the Region.  Whether respondent's  Part B
application was in fact adequate (and therefore was  erroneously
found unacceptable by the Region) is an issue  to  be  deterained
on remand.
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                              -4-



adequate Part B RCRA permit applica:ion.   Central  Co  the  reso-

lution of this issue is RCRA $3008(g) which states that the

Agency is authorized to assess civil penalties only for viola-

tions of RCRA requtreaents;

          Civil Penalties - Any person who violates any
          requirement of this eubchapter [Subchapter III -
          Hazardous Waste Management] shall be liable to
          Che UnUtd Staces for i civil penalty in an
          aaount noc to exceed $25,000 for each such
          violation.  Each day of such violation shall,
          for purposes of this subsection, constitute
          • separate violation.  8_/  (Emphasis added.)

     The presiding officer held that RCRA contains no requirement

that an owner or operator of an HUM  facility apply for a RCRA

permit or submit an adequate permit  application.  Accordingly,

eh* presiding officer held that respondent's failure to submit

an adequate Part B application Is noc a violation of any require-

ment contained in RCRA.  I disagree.

     40 CFR $270.10(e)(4)(1983) clearly requires  submission of

                                                          I/
a Part B permit application after Che Agency requests ic: ~
8_/ See also RCRA §S3008(a)(l) ft (a)(3).

9/ Implicit to  1270.10(e)(4)'s requirement  Co submit a Pare B
"permit application is Che requirement to submit en adequate (or
eoaplece) Pare  B application.  Of course, no regulatory require-
ment is violated where an owner or operator Initially submits an
Inadequate or incomplete Pare B application but subsequently
corrects 1C before expiration of Che six month deadline referenced
in §270-10(e)(4).  However,  if Che owner or operator  fails  or
refuses Co correct such deficiencies wichin Che six month
period, 1124.3(d) allows Che Agency  Co  deny the permit  and
assess an appropriate civil  penalty:

     (d)  If an applicant  fails or refuses  Co correct defi-
          ciencies in che application,  the  peraic  may be
          denied and appropriace enforcement actions say be

(nexc page)
-------
                              -3-
40
          AT any ciae after promulgation of Phase
     cing standards]  the owner and  operator of  an
     facility nay be required to tubmit Part B  of
     application.  The State Director may require
     Part B ... if the State . .  .  has received
     authorization for Phase II or  final authorization;  if  not,
     the Regional Administrator may require submission of  Part  B.
                                                  II  [opera-
                                                  exist ing HVM
                                                  their  permit
                                                  submission  of
                                                  interim
     Any owner or operator shall be allowed at
     from the date of request to submit Part B
     (Emphasis added.)
                                               least  six  months
                                               of  the applleat ion
   CFR $270.10(«)(4)  was promulgated pursuant to tht  statutory

authority found io RCRA $3005 vhich  directs  Cha Agency  Co

promulgate regulations requiring RCRA permits for owners  and
operators of HVM facilities.
                             107
                                  Accordingly,  violating  any
requirement contained In 40 CFR $270.10(e) (4) is tantamount to
                                                  li/
violating a requirement contained la RCRA Itself.
                                                       Therefore,
(Footnote No. 9 cont'd)

          taken under the applicable statutory provision
          including RCRA section 3008, SOW A sections 1423
          and 1424, CAA section 167, and CUA sections 308,
          309, 402(h). and 402(k).  (40 CFR (124.3(d).)

(The presiding officer interprets §124.3(d) as allowing assess-
ment of a civil penalty if, and only if, a facility continues
to operate after notification by the Agency that its Interim
status has been terminated for failure (or refusal) to correct
deficiencies in its Part B permit application.  However, there
is no support for the view that §124.3(d) was meant to envision
such a sequential approach, and it ia hereby rejected.)

IP/ The text of 1CRA S300S reads in relevant part as follows:

     (a)  Permit requirements. -- Rot later than eighteen
          months after October 21, 1976, the Administrator
          •hall promulgate regulations requiring each  person
          owning or operating a facility for the treatment.
          storage, or disposal of hazardous waste identified
          or listed under this subchapter  to have a permit
          issued pursuant to this section.

11/ Agency regulations promulgated pursuant to statutory authority
have the force and effect of law.  Service v. Dulles,  334 U.S.
363 (1939); Rodriguec v. Dunn, 128 F. Supp. 604  (1953),  aff'd

(next page)
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                              -6-


it is clear that failing Co submit  an  adequate  Part  B  application

is a violation of a RCRA requirement,  and the presiding  officer's

holding co che concrary is reversed.

     This case is remanded to the presiding officer  for  further
                                        IV
proceedings consistent with this order.

     So ordered.
                                    Ronald L. McCallua
                                  Chief Judicial Officer
Dated:  NOV 2  I 1984
(Footnote No. 11 cont'd)

249 P.2d 958 (1957).  See also Parmer v.  Philadelphia Elec.
Co., 329 P.2d 3 (1964); ACvood'e Transport Liner, Inc. v. U.S.,
211 P. Supp. 168 (1962). aff'd 373 D.S. 377 (1963); 3 Meziaei,
Stein 4 Gruff, Administrative Lav. 113.03 (1977).

     It should be noted that interpretive rules, i.e., rules
promulgated by an Agency which Interpret a statutory provision
may not, in certain circumstance!, have Che force and effect  of
lav.  40 CPE 1270.10 is not an Interpretive rule; rather it falls
Into the category of a legislative rule. I.e., a rule which Con-
gress has specifically authorized the Agency to promulgate and as
such has the force and effect of  lav.

12/ It is noc necessary for purposes of this decision to consider
whether the failure of an existing facility Co submit a Part  A
application is also a violation of a RCRA requirement.  Therefore,
that issue is neither addressed nor resolved here.

13/ See note 7, supra.
-------
                     CERTIFICATE OF SERVICE
     I certify chat copies of the foregoing Order In the Matter
of City Industries, Inc., RCRA (3003) Appeal No.  83-4 were
delivered to each of the following persons, In the manner
Indicated:
By 1st Class Mail
postage prepaid:
By Hand
Arthur Greet
President,
City Industries,  Inc.
3920 Forsytht Road
Orlando, PL  32807

Keith M. Caito
Assistant Regional Counsel
U.S. EPA, Region  IV
345 Courtland Street, N.E.
Atlanta, CA  30365

Sandra A. Beck
Regional Hearing  Clerk,
U.S. EPA, Region  IV
345 Courtland Street, N.E.
Atlanta, CA  30365

Thomas B. Tost
Administrative Law Judge
U.S. EPA, Region  IV
345 Courtland Street, N.E.
Atlanta, CA  30365

Bessie Hammiel
Hearing  Clerk
U.S. EPA Headquarter*
401 M Street, S.W.
Washington, DC 20460
o.t.d:  NOT 2 I  1984
                                     9-
                                 M.  Cail Wlngo
                                 Secretary  to  the  Chief
                                  Judicial  Officer
-------
                                                               9523.1984(11)
                 RCRA/SUPERPUND  HOTLINE  SUMKARY

                               MARCH 84
Must the owner cr operator of a container storage facility in a dcwntom
area check all nearly businesses for the possibility of injection or
withdrawal wells in  accordance with the 270.14(b) (19Mix)  topographic
map retirement?

     No, the owner cr operator of the container storage facility does
     not have to check with the individual businesses in the city.  He
     ecu Id, however,  check with the city water department for potential
     •wells.   The State or city may also have a well drillers licensing
     beard -which could provide that information.

     Source:  Any Mills and Burnell Vincent
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                                                            9523.1985(01)
                             FEB 2 5 1985                               §" f
                                                                       rr v<
                                                                       O w
                                                                       H- -
                                                                       Z WJ
                                                                       O f*
                                                                       • 9
                                                                       o a"
                                                                       w i-
Mr. John R. Knight                                                      ' -
Manager of Refining                                                    .-»
Plying J, Inc.                                                         *£•
P. O. Box 2328                                                           w
williston, North Dakota  58801                                           £
                                                                         Ul
Dear Mr. Knighti                                                         w
                                                                         ^D
                                                                         K)
     In your letter of February 1,  1985, you asked for EPA's             i
position concerning a situation where the property owner                 ^
refuses to co-sign a Part B application made by the operator             o
of a hazardous waate facility.      .                                     £,

     Zn your caae, X understand that the 0*8. Corps of Engineers         £
is the owner of property on which you are operating a RCRA regu-         ^
lated surface impoundment.  The Corps of Engineers apparently            ^
prefers not to co-sign the Part B application you submitted.             -
Our regulations require that "the owner must also sign the permit        £*
application* made by an operator of a facility  (40 CFR 270.10(b)J.       *"
If the owner chooses not to sign the application then a RCRA             ti
permit cannot be issued.  EPA would then deny the permit.  Opon          S
denial of the permit* the owner or operator must submit a cloaure        ^
plan and close in accordance with S265.112(c) and $265.228.              n

     EPA encourages Flying J, Inc. and the Corps of Engineers to
work together to develop a cooperative course of action concerning
the future of the unit.

                                      Sincerely yours,
                                      John H.  Skinner
                                      Director
                                      Office of  Solid  Waste
-------
                                                                             9523.1985(02)
                   RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                      MARCH  85
Part B Application

3.  A facility's  Part B permit application 1$ due after a Federal Register
    announcement  of  a final rule affecting the facility's hazardous waste
    management  activities but prior to the effective date of the final rule.  Is
    the permit  applicant required to address applicable sections of the new final
    rule 1n the Part B permit application?

          Since *.-? new  final  rule  1s  not  effective when the initial  Part  B
          applic:**on  is due,  the permit applicant 1s not required to address
          the new *inal  rule  provisions  1n the  Initial Part B application.
          However,  all permits  issued  must reflect all applicable Part 264
          requirements in  effect on the  date  of  Issuance.  Therefore, 1n most
          cases,  1f the  new final rule will be  1n effect prior to permit Issuance,
          the initial  Part  B  application should  be modified to reflect the new
          rule.  If the  new final rule will become effective shortly  after permit
          issuance, the  applicant may  still want to address the requirements of
          the new rule 1n the  Part  B application rather than go through a  permit
          modification at  a later date.

          Source:   Terry  Grogan (202)  382-2224
-------
                                                     9523.1985(05)
                   RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                   OCTOBER  85
5. Personnel "Draining Diring Post-Closure

   The owner/operator of  an interim  status  surface  impoundment is completing closure.
   All standing hazardous waste  liquids  have  been removed; however/ sane hazardous
   waste residues and contaminants will  remain  in place.  Therefore, the owner/operator,
   per $265.228(c),  will  provide post-closure care  as for a landfill.  There will be no
   active management of hazardous waste  or  hazardous waste leachate during the post-
   closure period.  In the post-closure  permit  application which the owner/operator
   must submit, is he required to meet the  "personnel training" requirement listed
   in S264.16?

        The owner/operator of an interim status surface impoundment must address
        all the information requirements in $270.14 and $270.17.  If the pout-
        closure permit application does  not include the information covering training
        programs as  required by  $270.14(b)(12),  the owner/operator must include a
        justification for not meeting this  requirement.

        The personnel training requirement  of $264.16 is designed primarily to ensure
        the facility's compliance with the  requirements of Part 264.  If the owner/
        operator of  the closed surface impoundment  is no longer actively managing
        hazardous waste,  then personnel  training may not be required during the post-
        closure operating period. Post-closure permit guidance, being prepared by
        the Permits  and State Programs Division of  the Office of Solid Waste, will
        address technical and administrative  requirements for the post-closure care
        period.  The permit writer continues  to have authority to ask for more infor-
        mation frcn  the owner/operator as the situation may require.

        Source:    Lillian Bagus (202) 382-4691
-------
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                          9523.1985(06)
MEMORANDUM

SUBJECT:  Post-Closure Permit Part B Requirements
FROM:     Bruce R. Weddle, Director  UT1»T- ?  i-.":iiir«
          Permits and State Programs •w*='3a"'-1-"-
TO:       Waste Management Division Directors,
          Regions 1-X


     This Division has recently received a number of  inouiries
concerning information requirements for Part B post-closure permit
applications.  Outlined below is a brief discussion of those
requirements and a list of information elements which should be
included in such applications.

     40 CFR 270.14 establishes the information requirements for
RCRA permit applications.  Because of the inherent differences
between an operating permit and a permit covering only post-closure
care activities, some of the information requirements for an
operating permit will not be applicable to a permit for  the post-
closure care period.  Section 270.10(c) gives CPA and States the
authority to determine that an application is complete whenever an
application form and supplemental information are completed to the
satisfaction of the Director.  We therefore recommend that the
Director only require information be submitted which  is  relevant
to post-closure care activities.  Relevant information may be
determined on a case-by-case basis.  At a minimum, however, it
should include:

A. Pre-HSWA Regulatory Requirements ($270.14):

   - A copy of the post-closure inspection schedule  ($270.14(b)(5))
   - Floodplain information ($270.^4(b)(11)(iii -  iv))
   - A copy of the post-closure plan  ($270.14(b)(13))
   - Documentation'of the notice in deed or an appropriate alternative
     instrument (§270.14)(b)(14))
   - Cost estimate for post-closure and post-closure  financial
     mechanism ($270.14)(b)(16))
   - A copy of the state financial instrument  if appropriate
     ($270.14)(b)(18))
   - Groundwater data and information demonstrating  compliance with
     requirements  for detection monitoring, compliance  monitoring
     and corrective action, as applicable  [$270.14  (c)]
-------
                               -2-


fa. New ihtonnatio.i required by HSWA, including at least:

   - Information on solid waste management units and releases
     from those units (§264.101; see RSI «3)
   - Financial responsibility for corrective action (if Applicable)
   - For landtills and surface impoundments, exposure information
     (5270.10(j))  (Note that lack of exposure information would
     not result in an incomplete application, but would be a
     separate violation).

    As stated above, this list represents the minimum information
that should be required.  In sove cases, it may be appropriate to
require additional information depending on the nature of the
facility, waste characteristics and other factors.  For example,
if a facility is expected to handle wastes  (e.g. leachates)
during the poet-closure period which could potentially cause
environmental or public health damage if mismanaged or if acci-
dents were to occur, it may be advisable to require a contingency
plan (S270.14(b)(7).

     If you have any further questions, please contact George Faison
at 382-2221.

cct  RCRA Branch Chiefs
     Permit Section Chiefs
-------
                                                      9523.1985(07
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON. D.C. 20460


                        November  18, 1985
                                                       OFFICE OF
                                              SOLID WASTE AND EMERGENCY RESPONSE
                                   OSWER Directive  #9540.6-1A
MEMORANDUM

SUBJECT:   Post-Closure Permit Part B Requirements

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

TO:        Waste Management  Division Directors,
           Regions I-X


      This office has recently received  a number of inquiries
concerning information requirements for Part B post-closure
permit applications.  Outlined below  is a brief discussion of
those requirements and a list of information elements which
should be included in such  applications.

      40 CFR 270.14 establishes the information requirements for
RCRA permit applications.  Because of the inherent differences
between an operating permit and  a permit covering only post-
closure care activities, some of the  information requirements for
an operating permit will not be  applicable to a permit for the
post-closure care period.  Section 270.10(c) gives EPA and States
the authority to determine  that  an application is complete
whenever an application form and supplemental information are
completed to the satisfaction of the  Director.  We therefore
recommend that the Director only require information be submitted
x which is relevant to post-closure care  activities.  Relevant
information may be determined on a  case-by-case basis.  At a
minimum however, it should include:

A.   Pre-HSWA Regulatory Requirements  (§270.14):

      -    A copy of the post-closure inspection schedule
           (§270.14(b)(5))
           Ploodplain information (§270.14(11)(iii - iv))
           A copy of the post-closure plan (§270.14(b)(13))
      -    Documentation of the notice  in deed or an appropriate
           alternative instrument (§270.14(b)(14))
           Cost estimate for post-closure and post-closure
           financial mechanism (§270.14(bK"-&»
       -   X copy oC ^he state financial, instrument-  it appropriate
            (§270.14)(b)(18))
-------
          Groundwater data and information demonstrating
          compliance with requirements for detection monitoring,
          compliance monitoring and corrective action, as
          applicable (§270.14(c))

B.   New information required by HSWA, including at least:

     -    Information on solid waste management units and
          releases from those units (§264.101; see RSI #3)
          Financial responsibility for corrective action (if
          applicable)
          For landfills and surface impoundments, exposure
          information (§270.10(j))   (Note that lack of exposure
          information would not result in an incomplete
          application, but would be a separate violation).

     As stated above, this list represents the minimum
information that should be required.  In some cases, it may be
appropriate to require additional information depending on the
nature of the facility, waste characteristics and other factors.
For example, if a facility is expected to handle wastes (e.g.,
leachates) during the post-closure period which could potentially
cause environmental or public health damage if mismanaged or if
accidents were to occur, it may be advisable to require a
contingency plan (§270.14(b)(7)).

  _  If you have any further questions, please contact George
Faison at 382-2221.

cc:  RCRA Branch Chiefs
     Permit Section Chiefs
-------
                                                              9523.1986(01:
           RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                             MARCH 86




1.  RCRA Permits for Mobile Treatment Units

   A company would like to build  a  Tobile hazardous waste  incinerator.  The
   company submitted a Part B Demit application.  Under the precons tract ion
   ban of §270.10(f), a company must have a  permit before  beginning construction
   on a unit.  Is there any way to  begin construction earlier?

      RCRA §3005(a), as amended by  the  Hazardous and Solid Waste Amendments
      of 1984/  requires owners and  operators of all hazardous waste treatment,
      storage,  and disposal facilities  to obtain a RCRA permit prior to
      constructing a RCRA facility.  A   mobile  treatment unit  (MTU) can be
      prefabricated and transported to  the proposed treatment site, but
      construction of the site itself,  such  as  pouring concrete foundations
      and connecting the ^f^U to physical structures on-site cannot occur
      until the RCRA permit .s issued  (RCRA  §1004(2)).

      EPA is developing a policy  to streamline  the permitting process for
      MTU's and is considering the  concept of statewide permits.  A draft
      policy is expected on March 30,  1986.

      .Source:    Nancy Pcmerleau  (202)  382-4500
      Research:  Jennifer Brock
-------
                                                    9523.1986(02)
July 31, 1986

Dr. Barry L. Johnson
Associate Administrator
ATSDR
Chamblee 28-South
1600 Clifton Road, NE
Atlanta, Georgia  30333

Dear Dr. Johnson:

     I am responding to your letter of May 28, 1986, which raised
several important issues regarding the procedures EPA has
developed for interacting with ATSDR in conjunction with reviews
of exposure information under RCRA §3019.  We discussed these
issues in our meeting on July 7, 1986, with Mr. Porter.

     Before responding to your letter, let me briefly explain how
I view the process we use for reviewing Exposure Information
Reports (EIR).  The review of an EIR follows the same basic steps
we use in reviewing a RCRA Part B Permit application, i.e., a
general completeness review followed by a technical evaluation.
The purpose of the EIR completeness review is to determine if the
applicant has submitted all the necessary pieces of information.
Because the EIR is based in large part on information from the
Part B application, the EIR and Part B for a facility are
generally reviewed concurrently.  Once the EIR is determined to
be complete, the permit writer will conduct a technical review
and look for evidence of significant prior or continuing releases
from the facility.

     If the writer determines there is no evidence of a
significant release, he will consider any impact of potential
future releases and will consider the addition of special permit
conditions to mitigate potential exposure.  If significant
releases are known  (or suspected) to have already occurred, a
more detailed examination of the exposure potential will be
conducted and a health assessment may be initiated.  If the EIR
and Part B information submitted to date does not clearly show
whether there is exposure from a release, the permit writer will
request additional information from the applicant so a firm
decision can be made.
        This document has been retyped from the original.
-------
                               -2-

     In response to your concern about ATSDR's role in this
process, there are specific areas where EPA (and authorized
states) will need ATSDR expertise and assistance.  The prime
areas is, of course, to conduct health assessments where there is
known or probable exposure to the public from releases.  In
addition, we will ask ATSDR to provide technical assistance in
defining what additional information to request from applicants
where the level of public exposure is not clear from the
information submitted to date.

     In many cases, the Regions will turn to EPA Headquarters for
assistance in defining and reviewing this additional information.
As you know, within my office we have created Permit Assistance
Teams  (PATs) which are groups that draw on a variety of expertise
as needed for the particular facility under review.  Ralph Touch
is one of the people we intend to include in the resource pool
for these PATs.  We will also continue to ask for Ralph's
participation in PATs or workgroups that are developing general
procedures and guidance to implement §3019.

     We are asking the Regional Offices to provide us with a list
of facilities where they expect to need ATSDR either to initiate
a health assessment over the next six months,  or to provide
technical assistance for further defining and reviewing
information from applicants where the level of exposure is not
clear.  We will share this information with you so that we can
work together in defining the specific areas where we will need
your help for these facilities.

     As I understand your request, you believe ATSDR's role
should be broader than I have outlined above.   Specifically, you
suggest ATSDR should also review all EIR's, and that EPA (and
authorized States) should routinely consult with ATSDR in all
cases where there is evidence of release, even if it is clear
there is no public exposure.  At this time, I do not believe
ATSDR assistance in these activities is necessary  (for example,
ATSDR expertise would not be required in cases where there is a
remote landfill which shows no evidence of release of hazardous
wastes).  If experience dictates otherwise, we will, of course,
request the involvement of ATSDR in the EIR reviews.  We will be
happy to make all EIR's and other supporting information
available to ATSDR.  However, we would consider these reviews to
be outside the scope of our Interagency Agreement and the
Proposed Draft Memorandum of Understanding, except in cases where
we request your assistance.
        This document has jbeen retyped from the original.
-------
                               -3-

     Your letter also raised a question about the estimated cost
range for ATSDR's services.  There seems to be some confusion
over the substance of the April 16, 1986, letter from Bruce
Weddle to Ralph Touch.  The purpose of that letter was to request
ATSDR to review monitoring data compiled for the BKK landfill,
rather than to request a health assessment.  The questions to be
addressed by ATSDR related to the adequacy and quality of the
existing data, and the appropriateness of the procedures to be
used by EPA contractors in evaluating the data.  Ralph Touch
estimated that this limited review of the BKK data would cost
about $3,000 and require three weeks to complete, therefore, we
chose to use these specific numbers in our response.  However, we
recognize the potentially wide-range of costs for health
assessments and provided for it in the Interagency Agreement
between EPA and ATSDR for RCRA §3019.  The Agreement indicates a
range of $2,000 to $5,000.  Although this range is lower than the
$3,000 to $10,000 you suggest, the range in the Agreement is only
an estimate and the higher range may be more accurate for some
cases.

     Please contact me if you have any further comments or
questions.

                                   Sincerely yours,
                                   Marcia Williams, Director
                                   Office of Solid Waste
cc:  Bruce Weddle
     Eileen Claussen

bcc: Ken Shuster
     Art Glazer
     Terry Grogan
     Bob Kayser
     Ralph Touch
Peter Guerrero
Reva Rubenstein
Jack Lehman
Art Day
Jon Perry
        This document has been retyped from the original.
-------
                                                                  9523.1986(03!
               RCRA/SUPERFUND  HOTLINE MONTHLY  SUMHARY

                                AUGUST 86
7.   RCRA Ccnpliance Orders

    Is a RCRA compliance order issued  to the owner of a facility or its
    operator?  Who is responsible  for  complying with the order?

         EPA has always  held that  both the owner and the operator are
         equally responsible for conpliance with the permit issued to
         a facility.  Section 3005(a)  of RCRA requires "each person
         owning or operating" a treatment, storage, or disposal facility
         to obtain a permit.  The  permit regulations reouire both owner
         and operator to sign the  permit application according to 40
         CFR 270.I0(b).   The permit will be issued to both the owner
         and operator.

         Preamble discussions in the May 19, 1980 Federal Register
         confirm this concept of dual  responsibility at 45 FR 33169
         and 45 FJ* 33295.   Both discussions specifically reference
         situations where the operator may be different frcm the
         landowner or facility owner.   EPA considers both the owner
         (or owners) *nd operator  of a facility to be responsible for
         regulatory compliance.  For this reason, EPA may initiate an
         enforcement action against either the 
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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                      9523.1986(04
 OCT27
Mr. Lawrence C. Tropea, Jr., P.E.
Director, Environmental Control
Environmental Control Department
Reynolds Metala Company
Richmond, Virginia  23261

Dear Mr. Trope*:

     Thank you for your letter dated October 2, 1986 expressing
your concern regarding the regulation of your Downingtown,
Pennsylvania facility,  we appreciate the dilemma you have faced
in determining when this facility will be subject to regulation.

     Based on the information we have, you are correct in your
belief that this incinerator will not be subject to regulation
due to the "redefinition of solid waste", promulgated on January
4, 1985, until Pennsylvania amends its regulations to reflect
that rulenaking.  We expect this will happen in 1987.

     When Pennsylvania revises its rules/ you will be required
to submit a permit application according to the procedures of
State law.  For information regarding State lav you may wish to
contact Donald A. Lacarchik, Director of the Bureau of Solid v;aste
management* Pennsylvaaia Department of Environmental Resources,
at (717) 797-9870.

     With regard to the Part A application which you already
submitted tevEPA Region III, LPA regards that submission as a
protective filing.  Protective fll«rs are not considered to b«
operating pursuant to interim status.  Since this facility did
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    have interim status on November 6  1934 the provision
      the hazardous and Solid Waste Amendments of 1964 (KSfcA)
that requires each intarire atatua facility daairing to retain
interin status to aubmit a Part 3 by November 5, 1986 doea not
apply.

     If you have any queationa regarding thia letter, please
contact John Humphries at (215) 597-ell6 or Marty maUiaon at
(202) 332>2229.

                                        Sincerely,
                                        Bruce R. Weddle
                                        Director
                                        Permit* and State
                                          Proqrama Diviaion
cc;  Robert Allen, Region III
     John Humphries, Region III
     George Garland
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                                                  9523.1986(35)
     NOV 2! B86

Hr. Darry L. Johnson
Associate Administrator
Agency for Toxic Substances and Disease registry
Chambl** 2R South
1600 Clifton Pond, NF
Atlanta, Georgia  30333

I>«r Dr. Johnsons
     Thank you for your recent l*»tt»r of October 30.  I aore?
that w*» should meet to discuss ATS DP. health assessments under
RCPA 53019.  I would also like to follow-up on several issues
that you raised.
         "Procedural Huidnnc* for Reviewinn Exposure Information
under RCRA Section 3019" Alluded to In your letter was issued in
finaJ form and distributed to the Reaions on September 26, 1986.
This document alerts the Regions to the possibility of the public
aubmittino release and/or exposure information to AT6DR, as well
as to EPA or the State.  Th« guidance (page 9) go«« on to etate
that ATSDR should forward copies of theme submissions to th« FPA
Rnoion, and encourages the Regions to coordinate any response
with ATf.DR's activities.  I belteve that we still need to work
out the details of this process In future meetings.

     While 53019 allows public submissions, the statute doe* not
explicitly provide for public petitions to ATSDR for health
assessments.  However, we recognize that public petitions for
assessments at RCRA sites may be forthcoming under the new
Superfund provisions.  For this reason, we agree that published
procedures for responding to petitions should cover RCRA facilities,
as well as Superfund site*.  I look forward to working with
OCRR and ATSDR to develop these procedures.

     In your letter you also souoht clarification o* the role
of Mr. Ralph Touch as part of the Permit Assistance Team  (PAT).
Let me assure you that Mr. Touch will b* involved in all phases of
the PAT decision-making process, Including workload planning and
preliminary technical assistance, as well as formal referrals to
ATSDR for a health assessment.  To date, no formal PAT Meetings
have b»en convened to recommend referrals, and Regional requests
for site-specific assistance have been fairly limited.
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                              - 2 -
     On October  28, we forwarded the attached letter to Mr. Touct
which summarizes the results of our survey of the Regions for
sites likely to  need ATSDR assistance  in the near future.  Sine**
then, we also sent to Mr. Touch the data for one site in Reaion
IV  (B.F. Goodrich, Kentucky) for ATSDR review.  In this case we
are seeking technical assistance in performing a preliminary
evaluation of the potential impact of  apparent exposure to the
public, caused bv releases into the Tennessee River, in ord»r to
determine the need and extent of further evaluation.  We will
continue to keen Mr. Touch informed hy phone of the status of
other §3019 sites and will send him the necessary data as our
Reoions aenerate it.

     I look forward to meeting with you soon to discuss these and
other issues.  Ralph Touch will be meeting with my staff to
discuss the status of funds for ATSDR  activities* the list of
candidate facilities for ATSDR assistance, and procedural issues.
I suggest that we meet shortly after this so that we can take
advantage of our staff's discussions.  Please have your secretary
contact my office to arrange our meeting.

                                Sincerely Yours,
                                Marcia Williams
                                Director
                                Office of Solid Waste
Attachment

'cc: Ralph Touch
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                                                        9523.1987(02)
   "I        UNITED STATES ENVIRONMENTAL PROTECTION AGENwr
   ^                    WASHINGTON. O.C. 204*0


                            SEP  14(907
                                               tOLlO WAST I AND IMIMQISCV MS*:
LETTER TO STATE ENVIRONMENTAL COMMISSIONERS

                         *
     In recent months  I've noted a number of actions by State
legislatures aimed at  preventing the siting of new hazardous
waste management facilities, or otherwise limiting new capacity
to deal with these wastes.   In addition, some States have set
moratoria on completing permit decisions, or on approving changes
to permits needed for  expanded waste management capacity.  Another
potential action being considered is limiting the amount of waste
coming into a State from other States.

     I'm sure you share my concern that  if this trend continues,
it will become increasingly  difficult to site or permit new waste
management facilities.  The  irony is that these new facilities
are often safer and better designed than older, existing facilities.
Also, the resulting capacity shortfalls  in some areas could mean
that wastes would be shipped longer distances for handling.  Such
transportation of hazardous  wastes increases, of course, the risk
of spills and leaks.

     I'm particularly  concerned about actions designed to limit
much needed treatment  capacity.  Sound,  permanent treatment is
usually preferable to  continuing the storage or disposal of
wastes in or on the land.  Also, there is already a nationwide
shortage of commercial hazardous waste incineration capacity.

     The Comprehensive Environmental Response, Compensation, and
Liability Act, as amended by the Superfund •\mendments and Reauthori-
zation Act (SARA) requires States to certify by October  1989 that
adequate capacity to handle  hazardous wastes is available  in their
States, or through arrangements with other States.  This certifica-
tion is a requirement  for continued Superfund funding  in a  State
after October 1989.  Erecting statutory  barriers  to hazardous
waste management in a  State  may not be consistent with  the  required
capacity certification.
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                               -2-


     Moit States art authorized by EPA to manage their own Resource
Conservation and Recovery Act (RCRA) program.  Although RCRA
requires an authorized State program to be "consistent," it also
allows states to be more stringent. "EPA took both of these pro-
visions into account when developing rules that required authorized
States to avoid unreasonable restrictions and prohibitions on
waste movement and management.  We may be compelled  to initiate
withdrawal of RCRA authorization from a State which  takes an
action in violation of these requirements.

     We recognize, however, that States must balance public health
and environmental concerns with the need for adequate waste manage-
ment capacity.  EPA has not opposed, for example, legitimate
State measures to protect areas with vulnerable hyrogeology from
the effects of waste disposal.  Nor has EPA discouraged States
from providing greater public involvement in permit  decisions. We
are concerned, however, that States not use their authorities
arbitrarily to prohibit environmentally sound waste management
practices.

     I hope I can count on your support in this vital matter.
Please let me know if you have any questions or comments on this
letter.

                            Sincerely,
                                /
                            J. Winston Porter
                            Assistant Administrator
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                                                  9523.1987(03)
        RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                      NOVEMBER 87
Exposure  Information  Requirements

Section 270.10( j)  requires  that  exposure  information  aco..r,;..anv
Part B applications for  landfills  or  surface  inpoundrient. s .   I •>
subnission  of  exposure  information  a   condition  for  pern it
issuance?  What should the  exposure  information  include?

     No.  Section   270.10(c>  states  that  an   application  for A
     Part B  permit is   not  considered  incomplete  if  th»-  u^n.-.-
     or operator   fails   to  submit   the   exposure inforn.it. ion
     described  in  Section   270.10(3).     Failure  ti.>  subi-ir
     exposure  information is a   separate  violation  of S^-.-t iun
     30i9 of RCRA.
     At a minimum,  the  exposure  information should
     potential pathways of  human  exposure  to  hazardous
     or constituents  resulting  from releases durinq ac
     and normal operations,  includiny releases assoc laf. •
     transportation  to   or  from  the  unit.   These
     include ground-water,  surface  water,   air emissions,  food
     chain contaminat ion ,   and multi-media contamin^t ir>n .   Th»-
     potential magnitude  and  nature  of   the  hunan expfisure
     which  nay  result   from the   releases  should  also  be
     addressed.

Source:   Bob Kayser      (202) 382-4536
Research: Tish Zimnerman
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            RCRA/SUPERFUND HOTLINE  MONTHLY SUMMAR*        9523.1988(01)

                            HOVEMBER 88
5. Contents of Part B Permit Application:  General Requirements

The Part  B  of the permit application  must  contain general information
requirements.  One of these requirements is information on the traffic pattern,
estimated volume and control of traffic, descriptions of access road surfacing, and
load bearing capacity of roads (Section 270.14(b)(10)).

Why is this information required?

 Is the information limited to on-site  traffic, or  must  the traffic  patterns
 surrounding the fadlity also be described?

    The  intent  of requiring submittal of the  traffic related  information  is to
    ensure that movement of  hazardous waste will be conducted  safely to
    minimize the  risk of accidents.  The traffic  related  information is  only
    required  for that area  inside and immediately surrounding  the hazardous
    waste management facility.

    There are no standards in Part 264 with which traffic related items  must
    comply.  However, the overriding concern is safety. Permit applicants should
    ensure that  the movement of waste into, out of, and within the facility will be
    conducted  in a manner that minimizes accident potential.   Additionally,
    general traffic movement should not be such  that hazardous waste managed
    at the facility will be  Disturbed by the traffic. In order to present traffic related
    items effectively,  the Agency  recommends  that both  a  discussion and a
    drawing be  provided with the Part B permit.

    Permit applicants should provide a thorough description of both the pattern
    of general traffic and the pattern of traffic moving hazardous waste within the
    facility. The applicant should also provide a description of traffic on  roadways
    traveled by the public which intersect with access roadways  to the facility. The
    following items should be considered for inclusion in the discussion of traffic
    patterns  and  volumes:   routes  traveled; distances traveled; number of
    vehicles;  types of  vehicles; waste movement;  sampling and unloading
    locations;  and amount of pedestrian traffic.

    Permit applicants are also  required  to submit a description of roadway
    surfaces and load bearing capacity.  The intent  here is  to insure that the
    roadways are appropriate for the type and number of vehicles that will be
    using  them.  If the road surface is such  that it  will require  periodic
    maintenance, the frequency and type of maintenance could also be described.
    Finally, the reviewing agency may also be concerned with the amount of dust
    that will be generated by vehicular traffic in and around the facility.

Source:        Permit Applicant's  Guidance Manual for the General Facility
               Standards of Part 264
Research:      Chris Bryant
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                                                   9523; 1991 (01)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                        MAR  I 3 1991
                                                      OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
Honorable Glenn English
House of Representatives
Washington, D.C. 20515

Dear Mr. English:

     Thank you for your letter of February 4, 1991, regarding  the
Environmental Protection Agency's (EPA's) authority to consider  a
permit applicant's history of compliance with the Resource
Conservation and Recovery Act (RCRA).

     As Mr. Robert Layton stated in his January  15, 1991, letter
to you, RCRA section 3005(c) requires that EPA  (or the state)
shall issue a permit to a hazardous waste treatment,  storage,  or
disposal facility once the EPA determines that the facility  is in
compliance with the requirements of sections 3004 and 3005 of
RCRA.  Neither section 3004 nor 3005 explicitly  requires  a permit
applicant to have complied with RCRA in the past, or  requires  EPA
to deny a permit if past noncompliance has occurred.  However,
the statute provides a broad "omnibus11 authority that the EPA  may
use to address a facility's compliance history when developing
permit conditions or making permit decisions.  The scope  of  this
omnibus authority and our implementation of this provision are
described below.

     Section 3005(c)(3) provides that permits issued  under that
section shall contain whatever terms and conditions EPA
determines are necessary to protect human health and  the
environment.  When issuing a permit, EPA may invoke this  omnibus
authority to address past noncompliance in two ways.  First, EPA
may include permit conditions that specifically  address areas  in
which the facility has a history of noncompliance if  EPA
determines that such conditions are necessary to protect  human
health and the environment.  In addition, in perhaps  a more
extreme and unusual case, some instances of serious past
noncompliance could conceivably lead EPA to conclude  that
noncompliance in the future is inevitable. If EPA cannot  draft
conditions to ensure protection of human health  and the
environment in this type of case, then EPA may invoke its omnibus
authority to deny the permit (see the enclosed page from  the
Federal Register notice).   It is important to note that  the
omnibus provision is invoked on a case by case basis, and only
where EPA believes that the usual permitting conditions will not
provide adequate human health and environmental  protection.
                                                          Printed on Recycled Paper
-------
     Furthermore, EPA need not rely completely on the potential
for permit denial to encourage compliance with RCRA prior to
permit issuance..  Section 3008 of RCRA authorizes EPA to take
enforcement actions against facilities prior to permit issuance,
including those already operating under interim status.  Thus,
even though previous violations of the interim status standards
of Part 265 may not ultimately prevent the issuance of a permit,
a facility owner or operator is still subject to civil and
criminal penalties for those violations (including penalties for
each day of non-compliance).
                   *•
     After issuing a permit, EPA has several mechanisms in place
to address noncompliance.  The regulations at 40 CFR 270.43(a)
allow EPA either to terminate a permit or to deny its renewal
if the owner or operator fails to comply with any term of the
permit or if the facility's operation endangers human health or
the environment.  In addition, EPA may invoke enforcement
authority under RCRA section 3008 to remedy noncompli'ance at a
permitted facility.

     In light of the above statutory and regulatory authorities,
it does not appear necessary to modify the regulations at this
time.  If you have any further questions on this matter, please
have your staff contact Devereaux Barnes at (202) 475-7267.

     We appreciate your interest in the safe and effective
management of hazardous waste.

                                   Sincerely yours,
                                   Don.R. Clay
                                   Assistant Administrator
Enclosure
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                                                          9523.50-1A
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON, O.C. 20460
                                                        Of ICE Of
                                               SOLIO WASTE AND EMERGENCY

MEMORANDUM                                     ^^ Directive

SUBJECT:  Post-Closure Permit Part  B Requirements

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

TO:       Waste Management Division Directors,
          Regions  I-X


     This Office has recently received a number of inquiries
concerning information requirements for Part B post-closure permit
applications.  Outlined below is a  brief discussion of those
requirements and a list of information elements which should be
included in such applications.

     40 CFR 270.14 establishes the  information requirements for
RCRA permit applications.  Because  of the  inherent differences
between an operating permit and a permit covering only post-closure
care activities, some of the information requirements for an
operating permit will not be applicable to a permit for the post-
closure care period.  Section 270.10(c) gives EPA and States the
authority to determine that an application is complete whenever  an
application form and supplemental information are completed to the
satisfaction of the Director.  We therefore recommend that  the
Director only require information be submitted which is relevant.
to post-closure care activities.  Relevant information may  be
determined on a case-by-case basis.  At a minimum, however, it
should include:

A. Pre-HSWA Regulatory Requirements ($270.14):

   - A copy of the post-closure inspection schedule ($270.14(b)(5))
   - Floodplain information ($270.14(b)(11)(iii -  iv))
   - A copy of the post-closure plan ($270.14(b)(13))
   - Documentation of the notice in deed or an appropriate
     alternative instrument (5270.14)(b)(14))
   - Cost estimate for post-closure and post-closure financial
     mechanism ($270.14)(b)(16))
   - A copy of the state financial  instrument if appropriate
     (S270.14)(b)(18))
   - Groundwater data and information demonstrating compliance  with
     requirements  for detection monitoring, compliance monitoring
     and corrective action, as applicable  ($270.14  (O)
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                               -2-


B. New information required by HSWA, including at least:

   - Information on solid waste management units and releases
     from those units ($264.101; see RSI #3)
   - Financial responsibility for corrective action (if applicable)
   - For landfills and surface impoundments, exposure information
     ($270.10{j))  (Note that lack of exposure information would
     not result in an incomplete application/ but would be a
     separate violation).

    As stated above/ this list represents the minimum information
that should be required.  In some cases/ it may be appropriate to
require additional information depending on the nature of the
facility/ waste characteristics and other factors.  For example/
if a facility is expected to handle wastes (e.g. leachates)
during the post-closure period which could potentially cause
environmental or public health damage if mismanaged or if acci-
dents were to occur/ it may be advisable to require a contingency
plan (§270.14(b)<7).

     If you have any further questions/ please contact George Faisoi
at 382-2221.

cc:  RCRA Branch Chiefs
     Permit Section Chiefs
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9524 - PERMIT
CONDITIONS
Part 270 Subpart C
                     ATKl/l 104/58 kp
-------
                                                    9524.1982(01)


February 8, 1982


MEMORANDUM
TO:       Director
          Air and Hazardous/Waste Management Division
          Regions I - X

FROM:     Gary N. Dietrich
          Director
          Office of Solid Waste

SUBJECT:  RCRA Permits for Facilities That Have Underground Tanks


     Chris Capper's December 21, 1981 memo on RCRA Permit
Priorities and Procedures has apparently raised some questions
concerning the permitting of tank storage facilities.  In calling
in Part B applications for facilities that have storage or
treatment in tanks please remember that these regulations DO NOT
APPLY to underground facilities that cannot be entered for
inspection!  In most cases you will not be able to tell from a
Part A application whether an underground tank can be entered for
inspection (or even if the tank is above or below ground).
Therefore, you may want to contact these facilities prior to
sending the "call letters" or put something in the letter to
address this.

     If you are calling for a Part B application from a facility
that has a combination of underground storage tanks that cannot
be entered for inspection as well as other storage facilities
(tanks that can be inspected, above ground tanks, or containers)
the options for the facility operator are as follows:

     1)   The operator can voluntarily choose to install manholes
          for inspection, or discontinue the use of the tanks
          which cannot be inspected.

     2)   The operator can continue to utilize those tanks under
          the interim status standards until such time as Part
          264 regulations are promulgated.
        This document has been retyped from the original.
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     If they elect the second option they will face a second
permitting action after future regulations dealing with
underground tanks are promulgated.  This is at least 12 to 18
months away.  The region should maintain a record of those
facilities which continue to use these tanks so that follow up
action can be taken once they become regulated.
bcc: Skinner        DeGeare
     Weddle         Glazer
     Lingle         Regional Permitting Contacts (via Magnifax)
     Levy
        This document has been retyped from the original.
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                                                                      9524.1983(01)
       Recurring Permit Issues:   Interpreting Regulatory
               Authority for RCRA  Permit Conditions
Other Federal Authorities

     A related issue  that has arisen in sane of the first permit
reviews is whether RCRA permit •writers should insert permit conditions
which would require permittees to meet requirements established
under other Federal laws and regulations.  Permit writers should
realize that the  RCRA regulations have been specifically written
to avoid duplication  of coverage with other Federal authorities. •
The supporting information behind the Part 264 regulations points
out that the Agency has excluded frcn the regulations many proposed
Part 264 standards that would have required permittees  to meet
other Federal laws and regulations (see 45 Fed.Reg. 33171; Hay
19r 1580.)  Therefore, as a general matter, permit writers should
not include in RCRA permits conditions based on other Federal
authorities merely for repetition or emphasis.  Such conditions
should only be used if the permit writer decides they are needed
to meet RCRA regulatory requirements.
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                            OCT  5
SUBJECT!  Use of Compliance Schedules In PCPA Perr.ita

PRriM:     Bruce P.. Hertdlo
          Division Director
          Permits and State Programs Division

TOi       Hazardous Waste Directors, Region I-X

     Many Regions have requested guidance on the appropriate
use of conpliance schedules in RCRA pernlts.  In response to
triose requests, the Porrrita Hranch ras developed the attached
guidance.

     To surnarize the nain points, conpliance schedules in HCRA
pernits cannot be used to satisfy, after the permit has been
issued, the information requirenents of Part 270.  Compliance
schedules can be used to allow facilities to cone into compli-
ance with Part 264 standards that are not required under Part
265.

     Ploase distribute this guidance to your respective staffs.
Any questions regarding when conpliance schedules can be used
in RCRA permits should be referred to Elizabeth Cotsworth at
FTS 3«2-4751.

Attachment
WH-563:RChrisnon:smjS243:24691:8/12/84tRandy's  disk  -Menos'
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                   USB OP COMPLIANCE SCHEDULES
                         IN SCPA
     A number of Pegions have flskid a^out f.he appropriate use of
co-plidnco schedules In RCRA permits.  The following explains
.•••joncy policy on this Issue.


         ^ Scneclules tn Permits
     In general, compliance schedules in pemits should be us«»d to
allow the construction or installation of *<]«ilpnent that is not
required under Part 265 but that is required to ccnply with Part
2*4 standards.  To be acceptable, compliance schedules must be
specific, enforceable, allow for public notice and comment on
the detailed pernit condition, and allow the applicant additional
tine only where that tine is legitimately needed.

  	Specificity means that the compliance schedule must set forth,
in detail, what the applicant is supported to do, when tf-e applicant
is supposed to do it, and when the work is to be completed.  Thus,
the schedule should include the design and construction specifi-
cations, interin milestones for construction, and a specific date
for conflation.  The schedule must also require the applicant  to
notify the Director within 14 clays of each interim date and the
final completion date.

     Enforceability means that the requirements imposed by the
cor.pli.ince schedule on the owner/operator can be achieved and
that the Agency can conflra that the owner/op*»r*tor has suc-
cessfully wet his responsibilities.  It also neans the Achndultd
activities nust comply with the technical standard* of fart 2*14.
The perr.it writer must havo an opportunity to evaluate the detail?
of design, construction, and operation to assure their ad«c;u*cy  in
light of Part 264 requirements.

     The conplote compliance schedule r»u»t be included  in  the
draft permit so the public will have an opportunity to content
on its content.  The compliance schedule must bo conplota  as  to
the details of what is to be done, when, an
-------
     No.  A facility should be in compliance with Part  265 stan-
dards at the time a RCRA permit is issued.   In situations where
*K« facility is not in compliance with the  requirements of Part
265, especially when compliance problems will prevent development
of a draft permit, the permit writer should refer the case to  the
enforcement staff.  The enforcement staff will make decisions  as'
to the appropriate enforcement action to pursue.   When enforcement
actions result in administrative orders, a  compliance schedule
may be included in the order.

2.   Can a compliance schedule be used to allow a facility
additional time to provide Part B application information after
the permit is issued?

     No.  Use of a compliance schedule for this purpose is unac-
ceptable and may be illegal.  For example,  the RCRA regulations
provide that the Director must specify detailed ground-water
monitoring conditions in the facility permit.  To develop these
permit conditions, information on ground-water monitoring at the
facility is necessary and, generally, should be drawn from the
Part B permit application.  Without adequate ground-water moni-
toring data, it is impossible to know whether a facility should
be conducting detection or compliance monitoring or corrective
action.  In addition, there may be no information that would
support the details of a ground-water monitoring plan, such  as
number, location and design of wells.  Without this information,
the Agency cannot develop a permit that complies with the Subtitle
C regulations.  Additionally, the public is not given adequate
notice or opportunity to comment on the ground-water monitoring
program.  Because the Agency does not have adequate information
on these items, it cannot issue a permit.

3.   Can compliance schedules be used to bring a facility into
compliance with Part 264 standards not required under Part 265?

     Yes.  Where a facility, which is in compliance with Part
265, must undertake new construction or installation of equipment
in order to comply with Part 264, a RCRA permit should be issued
with an attached compliance schedule.

     For example, although an interim status storage facility
does not require secondary containment, secondary containment is
required under Part 264.  Accordingly, the permit applicant must
submit design, construction and operating specifications for  a
secondary containment system in his application.  The  permit
writer may then approve those specifications and make  them part
of the draft RCRA permit.  A compliance schedule would  be include.-!
in the draft permit, setting forth milestones  for  various tasks,
a final completion date for construction and a requirement  for
the permitee to notify the Director within  14  days  of  complying
with each interim date and the final  date.   See  $270.33.
Incorporation of  the compliance schedule in  the  draft  permit
would provide the public with notice  of  the  details of the  proposed
design, construction, and operation  of  the  secondary containment

                               -2-
-------
 systan,  and also  the  proposed schedule for completion of the
 work.  After addressing  the public comments, the permit writer
 can issue the final permit and attached compliance schedule.

      Note the important  factors of this scenario:

      A.   All information requirements of Part 270 are satisfied
 before the draft  permit  is written.

      B.   The permit writer has an opportunity to assess  the
 adequacy of the design,  construction, and operation details.
                 *
      C.   The compliance  schedule is specific as to what  is  to be
 done,  who Is responsible for seeing that activities are  corpleted,
 and when those activities are to be completed.

      D.   The public has  a full opportunity for notice and cocnent.

 4.    Should a compliance schedule be used to issue a permit and
 allow modifications to an existing incinerator that has  failed
 the trial burn?                          ...          ,  .. . .

  -..' No.  The Agency  should not issue a permit to a facility which
 has failed to demonstrate,  in accordance with Part 270,  compliance
 with the Part 264 performance standards.
•-•'.-        ......                                -  - -   .    .
*'•-•  This scenario appears  to be similar to the secondary contain-
 ment situation described previously.  There is, however, a  fund-
 amental  difference between  the  two situations*  With respect  to
 secondary containment, it can be ascertained from the  applicant's
 proposed designs  and  specifications that the containment structure
 will comply with  the  Part 264 technical standards.  With respect
 to  an incinerator, however, there-is a much higher level of
 uncertainty that  proposed modifications will result  in the
 incinerator achieving compliance with  the performance  standards
 in  Part  264, Subpart  O.   The Agency cannot  issue  a permit  to an
 Incinerator that  cannot  demonstrate  it*  ability  to comply with
 the regulations.

      Generally,  tho permit  writer has  several  options.  The Agency
 can delay any final action, send a  letter  to the  applicant  saying
 that we  will deny the permit unless we get  trial  burn results
 demonstrating compliance with  the Part 264  performance standards
 within a specified time  period.  The  Director  could  also issue an
 administrative order  to achieve the  same results.  Tho applicant,
 of  course, can submit a new trial burn plan using different
 operating parameters  or modify  the  facility and submit a new
 trial burn plan incorporating  the  new modifications.   This order
 likely would contain  a compliance  schedule.   Finally, in some
 circumstances, it may be appropriate to deny the permit*
                                -3-
-------
 5»    For incinerator*,  should a RCRA permit be  issued with an
 attached compliance  schedule to bring an existing incinerator
 into 'coirpliance.with Part  264 nonitoring requirements necessary
 for an  adequate  trial burn?            .

      No.   All  continuous monitoring instrumentation  should be
 installed for  the  trial burn.  Under $S270.19(d) or  270.62(b)(5),
 the Director nust  find  that the trial burn will allov hin to  set   '
 operating conditions for the unit  before he can approve the trial
 burn  plan.   If the continuous monitoring equipment  is not installed
 during  the trial burn,  the Director cannot set  operating conditions,
 Therefore,  under the authority of  Part 270, the Director can
 require continuous monitors to be  installed before  the trial  burn
 is conducted and the permit issued.
 6.   Should 'permits with  compliance  schedules  be  used  to  correct
 deficiencies  in interim status  ground-water monitoring data?

     Where  the  ground-water monitoring data art lacking or question-
 able due  to poor .sampling and analytical  techniques, improper well  -U.
 placement,  or lack of  monitoring,  the Agency cannot  issue a RCRA
 permit with an  attached compliance schedule to develop adequate     *
 data.  Rather,  the permit writer should refer  the case to the ' '•"
 enforcement office for action.  .Close coordination between the .
 permit* and enforcement staffs  will, of course, be necessary  to .
 ensure that the relief sought through enforcement action  will be  -.*?-..^*
 consistent  and  compatible with  the Part B information  requirements.'r

 7.   Hay  the  permit writer develop permit conditions in areas ;J    .  •
 where the Part  B in deficient?   For  example, if an applicant      :
 fails to  specify information regarding fire prevention and control
 can the permit  writer  still draft  permit conditions  in that area?
                                •*..»•»•'•.-           .      ...
>    Yes.  It should be kept in mind that the  applicant is not*
_the sole  source of information  available to the permit writer.
"For example,  the permit writer's knowledge of  safety codes, such
'as the National Fire Protection Association Code, can  provide
 the basis for permit conditions.  The permit writer  can impose
 draft permit  conditions on necessary fire prevention and  control     :'"!
 measures  based on the  NFPA code, even though the  applicant has :_
 failed to specify this information in the Part B  application.  '"
 The permit writer,  in  essence,  is  completing the  application for
 the applicant by drawing  on his own  knowledge and best engineering'* •
 Judgment.          •             .  .'  - '   ."•/   '••        •  .•;• -%  ./•
  ; .   -     -"-:•• i..     .       ', •'      •/..-.;.-...•, r.:-.-v  •  v-
 For More  Information     • .••.„ ....    ••  ".  .    .,   :  .   -^- .".......  .-.••..".

     The  above examples cover the situations where use of conpli-  '-.
 ance schedules has  been suggested.  Headquarters j»l 11 be working •**•.
 with the  Regions to  establish a national clearing house  for  sharing
 •model"  permits, permit conditions,  KODs, and compliance schedules."
 Zn the meantime, any questions  regarding when compliance schedules ^
 can be used should be  referred to Elizabeth Cotsworth at FTS-8r j?y-*-
 382-4751.


                                -.4-"
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                                                                   9524.1984(02)
  ^k,
/ *£L \         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
 ^P^T                    WASHINGTON, O.C. 20460
 N.X

                               OCT I I B84
                                                   SOLID WA*Tt AND IMIftGI NCY MS'ONSf


      SUBJECT:  Recurring Permit Issues: Extent of Permit Conditions
                and the Velsicol Dec is ion
      FROM:     Bruce Weddle,
                Permits and State Programs Division (WH-563)

      TO:       Hazardous Waste Division Directors,
                Regions I-X


           Attached to this memo is a copy of the Administrator's
      Decision in the Velsicol Appeal.  Velsicol challenged its RCRA
      permit on the grounds that EPA lacked the authority to incorporate
      parts of the permit application into the permit as enforceable
      conditions and on the grounds that this incorporation would lead
      to an inflexible permit with conditions that exceed RCRA's
      requirements.  Velsicol had submitted a permit application that
      described both RCRA and non-RCRA activities at a chemical plant.
      The application led to a permit that was not limited to the RCRA
      storage facility at this plant.

           The Administrator, citing the need for flexibility in writing
      permit conditions, declared that a permit writer can restate
      the requirements of the regulations, incorporate parts of the
      permit aplication directly into the permit, or write a completely
      original permit condition.  The latter two approaches are
      permissible as long as "the permit conditions are 'based' on the
      appropriate substantive provisions of the regulations and are
      'necessary to achieve compliance with the Act and regulations.'"
      This ruling upholds the approach used in the Model Permit.

           The Administrator also found that both Velsicol and the
      Region had failed to take full advantage of the permit process
      to work together in preparing the permit conditions.  As a result,
      permit conditions were written that, as the Region conceded, were
      too broad.  For this reason, he remanded the permit to Region IV
      for additional public comment and potential revision of the
      permit after public comment.  In the new public comment period,
      Velsicol can submit the information necessary to limit the permit
      to the regulations.

           In summary, this decision allows permit writers to continue
      using the Model Permit as the basis for RCRA permits, and to
-------
                               -2-
continue to incorporate parts of the permit application in the
draft permit or to, when necessary, write completely original
permit conditions.  Permit writers must also ensure that appli-
cants are aware that parts of the permit application can be put
into the permit as enforceable permit conditions.  Accordingly,
the applicant should be encouraged, through NODs and requests for
additional information, to identify and remove information that
is not needed to demonstrate compliance with RCRA.  The permit
writers are also free to excise extraneous information from
those parts of the application that are incorporated into the
permit.

     This guidance replaces our earlier guidance of January 20,
1984, entitled "Recurring Permit Issues: Extent of Permit
Conditions."

Attachment

cc:  RCRA Branch Chiefs, Regions I-X
     RCRA Permit Section Chiefs, Regions I-X
     OSW Permits Branch
-------
                     BEFORE THE ADMINISTRATOR
               U.S. ENVIRONMENTAL PROTECTION AGENCY
            _1_.          WASHINGTON, D.C.
In the Matter of:

Velsicol Chemical Corporation,

   Applicant

Permit No. TND-061-314-303
RCRA Appeal No.  83-6
         REMAND AND PARTIAL DENIAL OF PETITION FOR REVIEW


                                                           I/
     In a petition filed pursuant to 40 CFR $124.19 (1983),"

Velsicol Chemical Corporation (Applicant) requested review of

a Resource Conservation and Recovery Act (RCRA) permit issued

to it for operation of a hazardous waste management (HWM)

facility at its chemical manufacturing plant in Chattanooga,
           2/
Tennessee.     The contested permit was issued on September 28,

1983, by the Director, Air and Waste Management Division, Re-

gion IV, U.S. Environmental Protection Agency.  According to

th-v Applicant, the permit is inflexible due to "Region IVs
I/ 40 CFR 5124.19 provides in pertinent part:

        (a) Within 30 days after a RCRA . . . final permit
   decision has been Issued ...» any person who filed
   comments on the draft permit . . . may petition the Ad-
   ministrator to review any condition of the permit decision.

2/ The Applicant is currently operating its facility under the
authority of "Interim Status,* a provision in RCRA which allows
persons who own facilities which were in existence on or before
November 19, 1980, to continue in operation until final action
is taken on their permit applications.
-------
      extensive incorporation of Velsicol's [permit]  application

      into the permit itself . . .  ."  The Applicant's  specific

      objections to the permit fall into two broad  categories:

      (1) the Region lacks the authority to incorporate substantial

  (C. portions of the permit application in the permit  as  enforceable

      conditions; and (2)  such incorporation led to a permit  which

      is inflexible and contains conditions that are "stricter than
                                         3/
      required by the RCRA regulations." ~~

           As explained below, insofar as the Applicant questions  the

      Regional Administrator's authority to incorporate portions of

      the permit application in the final permit, the Applicant  has
      f
   «<^not carried its burden of showing, in accordance  with $124.19(a)

      (1) and (2), that the permit determination is clearly erroneous
C-
      or involves an exercise of discretion or policy which is  impor-
                                                                  i/
      tant and which should be reviewed as a discretionary matter. ~~

      Therefore, review of that aspect of the permit is denied.
      3/ See "Velsicol Chemical Corporation's Reply to Region IVs Re-
      sponse in Opposition to Velsicol's Petition" Jated January 20,
      1984.   In its petition, the Applicant requests review of eightee
      conditions in the permit.  Zn some instances, it is not possible
      to discern the precise basis for the Applicant's challenge to
      a specific condition.

      4/ The preamble to the regulations containing this standard for
      accepting review states that "this power of review should be
      only sparingly exercised [and] . . . most permit conditions
      should be finally determined at the Regional level
      45 Fed. Reg.  33412 (May 19, 1980).
e  e  e
-------
 However, with rtspect to the challenges to specific permit
                                                                •
 conditions on grounds that they are inflexible and too strict,  c"
 the permit determination is remanded to the Region for the
 purposes of reopening the comment period and revising the
 permit conditions where.appropriate.
                               A.
     There is n£ compelling reason to question the Region's
 authority to incorporate portions of the permit application in
 the Applicant's permit.  The regulations confer broad discretion
 on the Regional Administrator to either: (1) restate the require-
ments of the regulations as permit conditions (which he did in
 some instances); or (2) to "establish other permit conditions"
 which meet the regulatory standards.  40 CFR S270.32(b) ("Es-
 tablishing Permit Conditions").  The text reads as follows:
          (b) Each RCRA permit shall include permit
     conditions necessary to achieve compliance with the
     Act and regulations, including each of the applicable
     requirements specified in 40 CFR Parts 264, 266, and
     267.  in satisfying this provision, the Director
     [Regional Administrator or authorized representative]
     may incorporate applicable requirements of 40 CFR Parts
     264, 266, and 267 directly into the permit or establish
     other permit conditions that are based on these parts.
When the Regional Administrator elects to "establish other per-
mit conditions," instead of simply restating the requirements of
 the regulations, he can choose between incorporating parts of
 the permit application directly in the permit or crafting a com-
pletely original permit condition in his own words.  No  legal
significance attaches to his choice, however, for  in either
-------
 instance the-'sole ttst of legal sufficiency is whether the
     ^
 requirements of $270.32(b) are satisfied, i.e., whether the
 permit conditions are "based" on the appropriate substantive
 provisions of the regulations and are "necessary to achieve
 compliance with the Act and regulations."  Therefore, the con-
 tention that the Regional Administrator  is without authority
                                                        5/
 to incorporate portions of the application is rejected. ~"
     Similarly/ there is no basis for contending, as Velsicol
 does, that restating the requirements of the regulations should
 be preferred over incorporation of the permit application.  The
 permit issuer needs to have broad discretionary powers in de-
 ciding which of the several approaches to writing permit con-
ditions under 5270.32(b) is most appropriate: permits are
 issued for many different kinds of hazardous waste facilities,
 ranging from those which only store small amounts of hazardous
waste on a temporary basis, to those which are  in the business
of disposing of large quantities of hazardous waste on a contin-
5/ In some cases, the regulations actually direct the Regional
Administrator to incorporate approved plans from the application,
thus depriving the Regional Administrator of discretion to do
otherwise.  For example, 40 CPR $264.112 (Closure Plan)
provides)
          (a) The owner or operator of a hazardous waste
     management facility must have a written closure plan.
     The plan must be submitted with the permit application,
     in accordance with S270.14(b)(13) of this chapter, and
     approved by the Regional Administrator as part of  the
     permit issuance proceeding under Part 124 of this  chapter.
     In accordance with $122.29 of this chapter, the approved
     closure plan will become a condition of any RCRA permit.
-------
        uous basis.  In some cases, a restatement of the regulation
            ^
        will be sufficient to insure the safe handling of the waste;
        in others it will not.  Similarly, in some cases incorporation
        of the permit application will be sufficient; in others it
        will not.  Finally, in some cases it may be necessary to devise
        new language that is tailor-made for the specific circumstances.
        Therefore, any suggestion that any single approach to writing
       ^.^^
Y<£-?<-^permit conditions is preferable in all circumstances is cate-
   '^
,*° /-^  gorically rejected.
  ^^
Jj.^ *~       The Applicant argues, however, that even if incorporation
y~n     is authorized by the regulations, it is bad policy.  According
        to the Applicant, it results in inflexible permits which will
        have to be modified in the future, thus wasting valuable Agency
        and applicant resources.  This argument also fails to persuade
        me that the permit should be reviewed.  There is no reason to
        assume, as the Applicant evidently does, that incorporation will
        inevitably produce an inflexible permit needing modification.
                                                              i>
        On the contrary, the outcome depends in large part on what the
   ..-*                              IN                         —
j^ ^    Applicant has submitted and on whether the procedures for de-
 x70      veloping permits are used effectively, so that  unnecessary con-
        flicts over the terms and conditions of the permit are  minimized,
        Based on the record before me, Z am convinced that the  Applicant
        and the Region have not taken advantage of the  permit procedures
-------
                                     I/
    to avo^d the  present  controversy.
                                     B.
         The applicable procedures  for permit  issuance contemplate
    that the permit issuer and the  permit  applicant will work to-
                                   y
    gether in developing  a permit.     To  that end, the regulations
    provide that  if the permit application does  not contain the in-
    formation required to write a permit,  the  Regional Administrator
 ^   may issue a  "notice of deficiency,"  requesting the information
    necessary to  complete the  application.  40 CFR $124.3(c).  After
    the application is officially "complete,"  the Regional Adminis-
    trator may still request additional  information to clarify what
    has already  been submitted, 40  CFR  $124.3(c); and still later,
    after the draft permit determination  is issued for public comment,
/'   the Regional  Administrator may  modify  the  permit  (and  reopen  the
    comment period) if the Region receives comments from the  Appli-
    cant (or the  public)  that  appear to raise  substantial  new ques-
    tions concerning the  permit, 40 CFR $124.14. Naturally,  if  the
    comments indicate that the permit would be contrary  to the Act
    6/ For much the same reason Z do not believe that it is necessary
    to address  the Applicant's contention that incorporation of major
    portions of its application leads to the inclusion of permit con-
    ditions that,  under S270.32(b),  allegedly are not "necessary to
    achieve compliance with the Act and regulations." (Emphasis added.)
    There is no reason to assume that incorporation inevitably leads
    to inclusion of unnecessary conditions.  In any event, whether or
    not a particular condition is necessary can be judged on a case-
    by-case basis  and corrected as appropriate.
    7/ See generally, 40 CFR Part 124 (1983).
-------
  or the regulations,"the Regional Administrator can always

  deny the permit application )(after proper notice,  including

  circulation of a revised statement of basis)  if the Region

  lacks the information necessary to make the permit conform to

  the law, 40 CFR SS124.3(d)  and 124.6(b).  In other words, the

  regulations provide an opportunity for an exchange of  infprma-

  tion between the Region, the  Applicant, and the public in

  developing the terms of the permit.  In the present case,

  however, it appears that neither the Region nor the Applicant

  took full advantage of this opportunity and the result,  as the

/Region concedes, is a permit  that contains provisions  which  are

  too detailed or that cover  portions of the facility which are
                                                      8/
  not directly, related to hazardous waste operations.
I
  8/ The Region nevertheless justifies issuing the permit in its
  present form on the grounds that it is the Applicant's responsi-
  bility to provide the permit issuer with the information needed
  to prepare the permit, and if the resulting permit is too in-
  flexible or embraces matters not properly wichin the scope of the
  regulations, the permit Applicant is at fault,  for the permit
  merely reflects the information supplied by the Applicant.  And
  if that information produces an inflexible or overly broad permit,
  then the permit Applicant has no one to blame other than itself.
  The Applicant's remedy, according to the Region, is to seek a
  modification of the permit.

       The Applicant, on the other hand, responds by pointing out
  that it gave the Region the information it requested; that the
  Region is under a duty to prepare an adequate permit; and that,
  regardless of the over or underabundance of the information sup-
  plied by the Applicant, the Region is not authorized to put
  conditions in the permit that are beyond its authority.
-------
      For reasons which are not apparent from the record,
                                                    9/
 the Keg ion did not request clarifying information,     or

 issue a notice of deficiency, or reopen the public comment

 period for the purpose of considering modification of the pro-

 posed permit or denial of the permit application.  The record

--does show, on the other hand, that the Applicant did raise its

 concerns about inflexibility and overbroadness in its comments

 on the draft permit.  However, the record also shows that the

 Applicant's comments were not accompanied by the information

 which the Region would have needed to__change the permit: so
               	                      !£/
 that it would conform to the regulations.

      Since the Region concedes that some of the conditions in

 the permit are too broad, it is my conclusion that the Region

 erred when it issued the permit.  Given the Region's stated

 willingness to entertain proposals to amend certain permit con-

 ditions, the Applicant should be given an opportunity to  submit

 the information that will enable a permit to be prepared  that

 is narrower and distinguishes between the Applicant's hazardous
 9/ The Region did request other information from the Applicant
 to clarify some) of the submitted material, but that request did
 not address the matters in question here.

 1_0/ See, for example, 40 CFR $124.13  ("Obligation  to raise issues
 and provide information during the public comment  oeriod").  Of
 course, it is a settled principle of  law that the  party  who is  in
 possession of information has the burden of producing  it.  See
 NcCormick on Evidence (2d ed. 1972) ("A doctrine often repeated  by
 the courts is that where the facts^with regard to  an issue lie
 peculiarly in the knowledge of a party, that party has the burden
 of proving the issue.*).
-------
and nojihaxardous wast* operations, and otherwise conforms to
the regulations.  Therefore, Z aa remanding the permit to the
Region so that the comment period can be reopened under $124.14,
thus giving the Applicant another opportunity to submit that
information.
Conclusion
     Accordingly, for the reasons stated above, it is my con-
clusion that review of the RCRA permit is not warranted at this
time.  The petition for review is denied insofar as it chal-
lenges the Regional Administrator's authority to incorporate
portions of the permit application in the final permit.  However,
regarding Applicant's objection to specific conditions in the
permit, the permit determination  is remanded for the purposes
of reopening the comment period to provide an opportunity to
obtain the additional information needed to revise those permit
            ii/
conditions.      If the information is not forthcoming and  the
Region is, therefore, unable to write a permit  that complies
with the Act and the regulations, the Region is instructed  to
issue an appropriate notice of its intent to deny the permit.  /
ll/ Of course, only  the permit conditions  contested in the
Applicant's petition for review will be  the  subject of the
reopened comment period.
-------
                               10
Any final permit determination shall reflect the Region's

response to all comments.  Thereafter* the Region's permit
                                                          12/
determination may be appealed in accordance with $124.19.

     So ordered.
                                 William 0. Ruckelshaus
                                      Administrator
Dated:  SEP 1 4 1984
12/ For purposes of judicial review,  final Agency  action  occurs
alter a final RCRA permit is issued by the Regional Administrator
and Agency review procedures are exhausted.   See 40 CPR $124.19
-------
                                                    9524.1985(01)
Mr. Thomas M. Hellman, Ph.D.
Manager
Health, Safety and Environmental Protection
General Electric
Fairfield, Connecticut  06431

Dear Dr. Hellman:

     Thank you for your letter of June 13 regarding RCRA
incinerator permits.  Specifically, you inquired as to whether an
incineration facility which is intended to burn non-hazardous
waste and/or hazardous wastes banned from land disposal, but is
overdesigned to meet RCRA requirements, can secure a RCRA permit
at a future time.

     RCRA Section 3005(a) and 40 CFR 270.10 prohibit physical
construction of a hazardous waste management facility without a
RCRA permit.  When applying this requirement, the intent of the
owner in constructing the facility is the primary factor of
consideration.  A permit is required prior to construction if the
owner intends for the facility to handle non-hazardous waste for
a period of time, and them apply for a permit to handle hazardous
waste (including hazardous waste banned from land disposal) at a
later date.  If the facility is intended to burn only solid non-
hazardous wastes, a permit prior to construction is not required.

     If an incinerator is constructed with the intention of
burning only solid waste and those wastes are listed as hazardous
wastes sometime in the future, the facility would be eligible to
receive a permit provided that all permitting requirements are
met.  Such a facility would have to comply with any additional
standards applicable to that treatment process which have been
adopted subsequent to the construction of the incinerator.

     RCRA allows an exemption from the requirement to have a
permit prior to construction for facilities constructed pursuant
to an approval issued under section 6(e) of the Toxic Substances
Control Act for the incineration of polychlorinated biphenyls.
any person owning or operating such a facility may file an
application for a RCRA permit to incinerate hazardous wastes
after construction or operation of that facility.
        This document has been retyped from the original.
-------
                               -2-

     We endorse your decision to seek environmentally sound
alternatives to land disposal in your hazardous waste management
strategies.  In regard to this issue, I also recommend that you
contact the State RCRA permitting agency since Connecticut is
authorized to issue RCRA incinerator permit.  For further
information, please contact:

          Stephen Hitchcock
          Hazardous Material Management Unit
          Department of Environmental Protection
          State Office Building
          165 Capitol Building
          Hartford, Connecticut  16106

     If we can be of further assistance, please contact Art
Glazer of my staff at (202) 382-4692.

                              Sincerely,
                              John Skinner
                              Director
                              Office of Solid Waste

cc:  Stephen Hitchcock, Connecticut
     Dennis Huebner, Region I
        This document has been retyped from the original.
-------
                                       9524.1988 (01)
        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                    WASHINGTON. DC. 20460
                                           SCL'fi WAjTE


    23  1988
    b w  Iwvw
Ms. M. Therese YasdicJc
Environmental Counsel
Chemical Waste Management, Inc.
3303 Butterfield Road
OaK BrooJc, Illinois 60521

Dear Ms. YasdicJc:

     This  is in response to your letter of November 24, 1987 in
which you  requested clarification of the reporting requirements
of section 270. 30(1) (10) of the RCRA regulations.  As you Jcnow,
that section, on its face, requires permittees to report all
instances  of non-compliance not reported under other paragraphs
of section 270.30.

     In your letter, you raised the concern that this
requirement, read  literally, would require owners and operators
to notify  EPA of every  instance of non-compliance, however
trivial.   You suggested, instead, that the Agency adopt three
specific criteria  for when reporting would be required under
section 270.30(1)(10).  You expressed concern that, if the
Agency failed to adopt  those criteria, the result would be an
unnecessary burden on industry and a chilling effect on internal
environmental audit programs.  After careful review of your
suggestions and concerns, we agree that there are certain
instances  of non-compliance with permit conditions that do not
warrant reporting  under section 270.30(1)(10).  However, we
believe these are  limited to minor facility recordJceeping,
reporting, and similar  oversights that are immediately corrected
once discovered.   We further agree that the reporting
requirements of this section are limited to non-compliance only
with permit conditions  and not to other Federal, State, or  local
requirements.  We  have  addressed individually below the criteria
you suggested and  the concerns you raised about application  of
the reporting requirements of section 270.30(1)(10).

     First, you suggested that reportable instances of
non-compliance should be limited to violations of  40 CFR  Part
264.  We do not believe, however, that reporting requirements
should be  limited  in thio wav.— RCBA permits may contain
-------
provisions  that  do not extend from the regulations of Part  264
yet are  extremely significant.  For example, the omnibus
provision of  section  3005(c)(3) of RCRA allows the Agency to
impose such permit conditions as it determines are necessary  to
protect  human health  and the environment.  Conditions imposed
under this  provision  might  fall outside of the scope of Part  264
but would also,  by definition, be significant.  Violations of
those provisions would likely be significant as well and would
require  reporting under section 270.30(1)(10).  Similarly,
violations  of air emissions standards, which have been proposed
under 40 CFR  Part 269, also may be significant.  On a related
point, you  asked whether section 270.30(1)(10) requires
reporting of  any non-compliance with any other Federal or state
requirements  that are not part of the RCRA permit,  we do not
believe  that  is  the intent  of section 270.30(1)(10).  Other
subsections of section 270.30(1) refer to reporting of
.non-compliance with permit  requirements.  For example, section
270.30(1) (2)  requires reporting of anticipated activities that
•ight result  in  "non-compliance with permit requirements."  The
reference to  "non-compliance" in section 270.30(1)(10) is
intended to be the same; that is, it refers to non-compliance
with the permit  requirements.

     Second,  you suggested  that instances of non-compliance
xeportable  under section 270.30(1)(10) should be limited to
instances that "significantly and adversely affect the sound
environmental operation of  the facility."  We disagree with this
suggestion  on the grounds that the standard is overly
subjective.   Furthermore, the purpose of the reporting
requirement is not simply to identify specific instances of
non-compliance leading to actual harm, but rather to indicate
overall  records  of compliance and patterns of non-compliance.
This end would not be served if reporting were limited to
instances of  non-compliance that met the suggested standard.

     Finally, you suggested that all reportable instances of
other non-compliance  should exclude matters discovered and
addressed by  an  internal environmental audit program.  You
expressed concern that a literal interpretation of section
270.30(1)(10) would have a  chilling effect on internal
environmental audit programs and pointed out that the Agency's
policy on environmental audits acknowledges industry's need to
•self-evaluate environmental performance with some measure of
privacy* (51  Fit  25004).  However, that policy also states that
•audit reports may not shield monitoring, compliance, or other
information that would otherwise be reportable and/or accessible
to EPA"  (id). Further, it  explicitly states that the policy
"does not alter  regulated entities'...obligations to monitor
record,  or  report information required under environmental
-------
statutes, regulations, or permits..." (id).  Therefore,  while
the Agency encourages and supports environmental auditing,  it
does not support the use of environmental audits to shield
otherwise reportable violations.  At the same time, the  Agency
believes that its enforcement policies do in fact provide a
strong incentive for environmental audits by facility owners or
operators.  In the Federal Register notice announcing its policy
on environmental auditing, the Agency noted that while
environmental auditing cannot substitute for regulatory
oversight, it can help facilities become subject to less
regulatory action by helping them improve their performance.
For this reason, we do not believe that the reporting
requirements of section 270.30(1)(10) will have a chilling
effect on environmental auditing.

     Although the Agency believes that the specific criteria
that you suggest are inappropriate, we acknowledge that
requiring notification fcr every instance of permit
non-compliance, however trivial, could be extremely burdensome,
both to the facility owner or operator and to EPA, without
providing significant benefits.  The Agency did not intend such
a result in section 270.30(1)(10).  Instead, we believe  that
this reporting requirement should not apply to minor
recordJceeping, reporting, and similar oversights that are
immediately corrected once discovered.  Under this
interpretation, violations such as the example you cited in your
letter, that is, failure to put the time of an inspection on an
inspection form, need not be reported.  Also fitting into this
category would be failure to maintain all aspects of personnel
training plans up to date and minor deviations from time
deadlines, such as time for submission of biennial reports.  The
Agency believes, however, that even seemingly insignificant
violations become significant if repeated.  Therefore, it should
be noted, that if a violation meeting the above criteria is part
of a repeating pattern, reporting is required.

     I hope this clarification of the reporting requirements of
section 270.30(1)(10) answers your questions about its
application and alleviates your concerns about unnecessary
burden to industry imposed by that section.  If you have any
questions on this issue, please contact FranX McAlister of the
Offic* Of Solid Haste (202) 382-2223.
                              Sincerely,
                              Jeffery/D.-
                              Acting/bisector
                              Off foe of  Solid Waste
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                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                              WASHINGTON, o.c. 20450
                                    FEB  27 589
                                                            .S A-STE A.\C EVE«CESC» ass'.V.j-
 MEMORANDUM

 SUBJECT:    Use of Omnibus Authority to Control Emissions of Metals,  HC1,
              and PICs from Hazardous Waste Incinerators

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

 TO:          Hazardous Waste Division Directors, Regions I-X

       Questions have recurred regarding the implementation under omnibus'authoriry of
 the forthcoming proposed amendments to the hazardous waste incinerator standards, and
 the relationship between implementing the controls and meeting the November 8,1989,
 permitting deadline. This memorandum provides OSWs policy on these issues.

       We are concerned that the existing standards for hazardous waste incinerators under
 40 CFR 264.340 may not be fully protective for all facilities with respect 10 emissions of
 toxic metals, hydrogen chloride (HC1) and products of incomplete combustion (PICs). We
 have developed proposed amendments to the standards to better address the hazards posed
 by these emissions. The proposed rules have completed the internal Agency review
 process and are under review by the Office of Management and Budget We anticipate that
 the proposed rules will be published for public comment in the spring of 1989.

       In the interim, until the rules are promulgated, EPA permit writers should use the
authority provided under Section 3005(c)(3) of the Resource Conservation and Recovery
Act (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984
(HSWA), to apply additional permit conditions as necessary to adequately control these
emissions. This provision, often called the "omnibus" authority, gives permit writers the
authority to apply additional permit conditions as necessary to adequately  protect human
health and the environment. Thus, EPA permit writers have the authority and the
responsibility to consider, on a case-by-case basis during the permit process, whether
controls based on the current regulations are fully protective, and, if not, to establish
additional permit conditions as necessary to protect human health and the  environment.

       The use of the omnibus authority is clearly within the initial intent of Congress in
including the omnibus provision in the statute, as evidenced by the legislative history at S.
Rep No. 284,98th  Cong., 1st Sess. 31 (1983), which states:

              "[the omnibus authority] can also be used to incorporate new or better
              technologies or other new requirements in permits, where EPA intends to
              add such technologies or requirements to  the regulations but has not yet
              issued a final regulatory amendment."
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 Guidance, Documents

       To assist permit writers, we have developed two guidance documents: Guidance on
 Metals and Hvdrogen Chloride Controls for Hazardous Waste Incinerators. December 29.
 1988 (Draft final report); and Guidance on PIC Controls for Hazardous Waste Incinerators.
 December 30, 1988 (Draft final report). These guidance documents recommend a siep-by-
 step approach to develop permit conditions consistent with the regulatory requirements the
 Agency plans to propose.  We recommend that permit writers use the guidance documents
 to'develop appropriate permit conditions. However, in using the guidance documents or
 other information to establish permit conditions under the omnibus authority, the permit
 writer must provide the applicant and other interested parties due process. The permit writer
 must explain  and document what the concern is, and thoroughly  discuss why the additional
 permit conditions are needed to ensure protection of the public health and the environment.
 Through the permit process, he must provide the time and opportunity for comment, he
 must fully respond to those comments, and he must include the responses in the
 administrative record of the permit.  In short, the permit writer must provide a sound
 technical basis for inclusion of the permit conditions under  the omnibus authority.

       Permit writers need not wait to use OSWs guidance documents until the documents
 have been issued in final form. Like the proposed rules, the guidance documents have
 completed the internal Agency review process. We anticipate that the documents will be
 published in the spring of 1989, and made available through the National Technical
 Information Service.  Permit writers should use the guidance notwithstanding its draft status
 because, as indicated above, the permit writer must justify thoroughly and, in writing, any
 requirements  applied under the omnibus authority.

       The permit writer cannot simply refer to the guidance document to support the
 conditions included in the permit.  Moreover, we anticipate  that the guidance may change
 over time as permit writers and applicants gain experience dealing with the  issues and as
 additional information becomes available (e.g., health effects data; improvements in
dispersion models). We plan to revise the documents as needed after publication and to
 provide notice in the Federal Register of the availability of subsequent editions.

       By considering the need for additional controls under the omnibus authority on a
case-by-case basis, permit writers can avoid petitions from  interested parties asserting that
 the permit is not adequately protective. The Administrator has already ruled in favor of a
petition for review of a RCRA incineration permit that argued, in part, that adequate controls
on metals and PIC emissions were not provided in the permit The Administrator
subsequently  directed the Region to consider adding permit conditions addressing PICs and
metals,

 State Permit Writers

       We encourage State permit writers to implement the guidance if the State has  an
omnibus authority in its statute. EPA permit writers should review the draft State permit to
determine if it adequately protects human health and the environment, particularly with
respect to emissions of metals, hydrogen chloride, and PICs. If the State permit does not
provide adequate controls, the EPA permit writer should provide these controls in the
HSWA portion of the permit, given that the omnibus authority is a HSWA provision.
HSWA provisions must be implemented by EPA in authorized States until the State obtains
authorization for HSWA provisions as well.  To date, only one State, Georgia, has been
authorized under HSWA.
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 Impact on

       We do not believe that considering the need for additional controls for metals, HC1,
 and PIC emissions dunng the permit process will  cause the Regions or States to miss the
 November 8, 1989, permitting deadline established by HSW'A.'We developed the guidance
 documents to enable the permit wnter to apply appropriate controls on a site-specific basis
 and to explain to interested parries the need for those controls.  In addition, we have
 conducted four training workshops for Regional and State permit writers on how to use the
 guidance documents. Finally, Headquarters staff in the Combustion Section, WMD, and
 the Alternate Technology and Support Section, PSPD, are available to assist permit writers
 as necessary. Limited contractor funds are also available to handle special problems that
 may arise.

       Some permits, however, may have already progressed to a stage where issuance of
 the permit would be substantially delayed if a trial bum was required to demonstrate
 conformance with the metals and PIC controls recommended by the guidance documents.
 Examples are when the trial bum has already been conducted or where the trial bum plan
 has been  approved. In these cases, the guidance documents recommend that permit writers
 establish  conservative, but reasonable, interim controls until the owner or operator conducts
 a trial bum to demonstrate that the interim requirements (or less stringent requirements) will
 not result in an exceedance of the limits recommended by the guidance documents. Methods
 for determining these interim limits are presented in the guidance documents.  In applying
 these interim controls, however, the permit writer  must still thoroughly explain in writing
 the basis  for imposing such conditions and  provide interested parties due process through
 the RCRA permit procedures.

       Nonetheless, if a State believes that it may not be able to meet the November 8,
 1989, permitting deadline because of the policy on implementing controls on metals, HC1,
and PIC emissions, the State should discuss the situation with the Regional Office.  If site-
specific guidance is needed, the Regional Office may discuss the situation further with
Joseph Carra, Director, Permits and State Programs Division.


cc: State Hazardous Waste Division Directors
    Incinerator Permit Writers' Workgroup
    Jeffery H. Denit
    David Bussard
    Robert Tonetri
    Joseph Carra
    Steven Silverman
    James Berlow
    Bob Holloway
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                                         9524.1989(02)
                          mz
                                                                    V.
MEMORANDUM

SUBJECT: Ecolotec Permit Remand Order and Use of the Omnibus
         Provision                                                    5

FROM:    Joseph S. Carra, Director
         Permits and State Programs Division

TO:      B. G. Constantelos, Director                                 p
         Waste Management Division, Region V                          &

    This memorandum is in response to your request of January 9,      £•
1989 for guidance on the use of the Agency's omnibus authority        £.
under section 3005(c)(3) of RCRA and 40 CFR 270.32(b)(2).  As         »
you stated in your memorandum, the Administrator signed a Remand      ~
Order on the Ecolotec RCRA permit appeal that directs the Region
to reconsider its decision in light of the Agency's omnibus
authority.  You expressed concern that the Remand Order could
have significant implications for the RCRA permitting process by
broadening substantially what the Agency must consider in
connection with permit issuance.  You then posed several
questions about use of the omnibus authority in light of the
Ecolotec appeal decision.

    We understand your concerns about the uncertainty that
omnibus authority creates in the permit process.  However, we
believe that the Remand Order of the Ecolotec permit appeal
should not have any substantial impact on what the Agency must
consider in connection with permit issuance.  The Remand Order
instructs the Region to reconsider the Ecolotec permit because
the Region failed, in making the original permit decision, to
recognize the Agency's authority under the omnibus provision to
deny a permit.  As stated in the decision, n[t]he Region is
simply directed to reconsider the facility and the permit under
the proper legal perspective, i.e.. one that includes denial of
the permit...."  We do not believe that the Order should be
interpreted to criticize the manner in which the Region used the
omnibus authority to impose permit conditions.  In fact, the
Order specifically states that Region V recognized and properly
exercised its discretion under the omnibus provision to  impose
permit terms on Ecolotec beyond those required by EPA
regulations.  Nor does this Order reduce the ability of  the
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                               -2-


Region to rely on the Federal regulations as establishing the
appropriate level of human health and environmental protection,
as  long as there are no site-specific circumstances that
indicate otherwise.

    We address below the questions that your memorandum raises
about the omnibus authority.

1.  How broad is the Agency's authority to gather information
not required by the regulations?

    Under §270.10(k) of the RCRA regulations, the Agency has
broad authority to require information from permit applicants
concerning permit conditions issued under §270.32(b)(2) (the
omnibus provision) when necessary to protect human health and
the environment.  The Agency discussed the extent of this
authority in the preamble of the Final Codification Rule
published on December 1, 1987 (53 FR 45788).  That preamble
states that, while the authority to collect information under
§270.10(k) should be used sparingly and not for random and
unjustified fishing expeditions or for conditions unrelated to
hazardous waste activities, it can otherwise be used in specific
circumstances where existing regulatory requirements may require
supplementation to ensure that human health and the environment
are adequately protected.

2.  Will we be required to conduct risk assessments at every
site prior to permit issuance?

    The omnibus provision does not impose an obligation on the
Agency to conduct risk assessments at every site.  Further, as
discussed above, we do not believe that the Remand Order on the
Ecolotec appeal requires the Agency to routinely gather
additional information when issuing a permit or to routinely go
beyond the regulatory standards.  The Agency continues to be
required to examine all relevant data and information that are
available when issuing a permit.  If, based on this normal
quantum of data, the Agency determines that site-specific
circumstances exist that require further investigation, then
additional information may be gathered from the applicant under
the authority of §270.10(k).

3.  When is use of the omnibus provision appropriate?

    As a rule, the Agency's position is that EPA's regulations
are protective of human health and the environment and that
permits implementing these regulatory standards will also be
protective.  As you know, however, there nay be site-specific
environmental circumstances in which regulatory requirements may
need supplementation and use of the omnibus provision may be
appropriate.  The decision to invoke omnibus authority must  be
made on a case-by-case basis and only when the Agency, after
-------
                               -3-


examining all relevant data supplied during the permitting
process, determines that such circumstances exist.   The most
obvious use of the omnibus authority is to impose additional
permit conditions reflecting standards that have been proposed
but are not yet in effect.  Another use of the omnibus might be
to impose permit conditions not required by the regulations but
detailed in guidance documents issued by the Agency.  This
latter example is not, however, a broad directive to turn
guidance into regulatory requirements.  Rather, it would be most
appropriate when guidance specifically identifies particular
situations where current generic regulations might need to be
supplemented.  In any case, while there will be other
circumstances in which the omnibus authority can and should be
used to impose permit conditions or deny permits, such
situations should be uncommon.

4.  What are the legal limits of the omnibus provision i.e.. do
we have authority to deny a permit even though the facility has
submitted a complete and technically adequate application?

    In the preamble of the July 15, 1985 Codification rule, the
Agency clearly stated that in order for the omnibus authority to
accomplish its intended effect, the authority to issue permits
containing conditions deemed necessary to protect human health
and the environment must encompass the authority to deny permits
as well.  The Agency further discussed the legal limitations of
our omnibus authority in the preamble of the December 1, 1987
Second Codification rule.  There, the Agency pointed out that
the intent of the provision includes authorization to impose
permit conditions beyond those mandated by the regulations.
Thus, even if a facility submits a permit application that  is
complete and technically adequate as defined by EPA regulations,
if due to environmental circumstances at the facility,
compliance with the regulations will not assure protection  of
human health and the environment, and the Agency cannot impose
additional conditions that will provide adequate protection,
then the Agency can and should invoke omnibus authority to  deny
the permit.

    I hope this answers any questions you might have about  the
effect of the Ecolotec Remand Order on use of the omnibus
provision.  If you have any further questions, please contact
Barbara Foster at FTS 382-4751.

cc:  Tina Kaneen
     Lisa Pierard
     Waste Management Division Directors, Regions I-IV, VI-X
     Barbara Foster
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                                                       9524.1989(03



                                 231989
                                                                    c
                                                                    c
                                                                    o-
MEMORANDUM

SUBJECT:  Postponement of a Land Treatment Demonstration for
          Navajo Refining Company, Artesia, New Mexico
          Authorized by the New Mexico Environmental
          Improvement Board

FROM:     Joseph S. Carra, Director
          Permits and State Programs Division (OS-300)

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

     This memorandum is in response to your request of December
29, 1988 for guidance on certain permitting issues  related to
land treatment facilities.  You mentioned that the  questions
arose because the New Mexico Environmental Improvement Board
delayed the start date of a land treatment demonstration for an
interim status land treatment unit owned by Navajo  Refining
Company.  As you explained in your memorandum, the  postponement
occurred as follows:

1.   On January 22, 1988, the State of New Mexico issued a
     two-phased permit to the facility in which it  required
     that the land treatment demonstration phase (Phase I) be
     effective for a period of one year from the effective date
     of the permit unless terminated, revoked, or reissued.

2.   On March 22, 1988, Navajo Refining Company appealed the
     state-issued permit and requested a dj» novo hearing, which
     was held on May 31, 1988.  In its appeal, Navajo Refining
     submitted Proposed Findings and Reasons which alleged that
     the Board has the authority to reverse a decisions of a
     Director under various circumstances.  Navajo suggested
     that the Board change the start date of the treatment
     demonstration Phase I period to a later date.

3.   On August 12, 1988, the Board considered the appeal  and
     tentatively decided to postpone the start date of the  land
     treatment demonstration until August 8, 1990.   EPA stated
     its opposition to delaying the demonstration, but the
     Board nevertheless rendered  its final decision to postpone
     the start date of the Phase  I land treatment demonstration
     until August, 1990.
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                               -2-
You asked several questions about the status of the facility
and the state appeal.  Because New Mexico is an authorized
State, your questions are governed by New Mexico law,  and we
have no reason to comment on state law matters.  In addition,
most of your questions appear to be of a generic nature about
land treatment demonstrations and permitting.  We have answered
your questions in a similarly non-facility-specific vein,
assuming that federal law is applicable.  We emphasize that our
comments do not analyze the Navajo Refining situation as a
matter of applicable state law.

1. Can a permit be appealed based on reasons other than those
received during the public comment period?

Yes.  Section 124.19 of the RCRA regulations governs who may
appeal a RCRA permit under federal law.  That section provides
that any person who filed comments on a draft permit or
participated in the public hearing may petition the
Administrator to review any condition of the permit decision.
Section 124.19 does not limit the subject matter of the appeal
unless the person failed to file comments or participate during
the public hearing on the draft permit, in which case the
person may only petition for review to the extent of the
changes from the draft to the final permit decision.  Note,
however, that New Mexico state law could differ significantly
from §124.19.

2.  Is the permit a legally enforceable document if it does not
require the land treatment demonstration until a future date?

Under federal regulations at §270.63, the Agency may issue a
two-phase facility permit, such as the permit  issued to Navajo
Refining, to a facility with a land treatment unit.  Such a
permit becomes effective, thus enforceable, according to the
procedures in §124.15, that is, 30 days after  issuance unless a
later date is provided in the permit or tne permit  is
appealed.  Under federal law, the effective date of a treatment
demonstration phase would not affect the effective  date of the
facility permit.

3.  Can a permit be issued for Phase II without Phase I being
implemented first?

Yes.  As discussed above, the federal regulations at §270.63
provide for issuance of a two-phase permit to  a facility with a
land treatment unit.  Such a permit normally contains general
facility standards and two portions related to the  land
treatment standards of Subpart M.  The  first portion, Phase I,
provides for the treatment demonstration; the  second, Phase II,
contains conditions to attempt to meet  all Subpart  M
requirements based on substantial, yet  incomplete or
-------
                               -3-
 inconclusive information submitted in Part B of the permit
 application  (see §270.63(b)).  As is disscussed above,  all
 portions of the permit are issued at once, and the "facility"
 permit becomes effective per §124.15.  The Phase I portion
 becomes effective as provided in the permit.  The Phase II
 portion becomes effective only after the Phase I treatment
 demonstration is completed and, based on the results of the
 Phase I treatment demonstration, all necessary permit
 modifications are made per §270.63.

 4.  What is the regulatory status of a facility when a
 two-phase permit is issued under §270.63?

 Under federal law, a facility is "permitted" once the permit
 goes into effect.  At that time, the facility becomes subject
 to general facility standards under Part 264 as well as
 corrective action provisions of the permit.  The land treatment
 unit is subject to the standards of Part 264 insofar as it is
 used for the treatment demonstration, the remainder of the unit
 complies with interim status standards until Phase II of the
 permit goes into effect pursuant to S270.63(d).

 5.  Can EPA require a treatment demonstration through the HSWA
 omnibus provision?

At the time that the HSWA portion of the permit was issued, the
Agency could have required a treatment demonstration using
 omnibus authority if such a requirement were necessary to
 protect human health and the environment.  However, whether the
 omnibus authority is appropriate for use after initial permit
 issuance, such as when a permit is renoticed as a result of
changes made in response to an appeal, is an issue still under
consideration by EPA at this time.

 6.  Is a State's administrative process for changing a permit
 to reflect a different start date for the land treatment
demonstration subject to major modification requirements
 including public notice and opportunity for comment?

The State's administrative process is a matter of state law.
Under federal law, any change made as the result of an appeal
decision need not be made as a permit modification because the
contested portion of the permit has not yet become a final
permit decision under $124.15.  However,  if the change is
substantial, then public notice and opportunity for comment may
be advisable.  Once the permit becomes effective, any change to
 it must be made as a permit modification.   If  the State has
procedures similar to the previous federal  major/minor
modification system, a change of the start  date for a  land
treatment demonstration would likely be a major modification
and subject to public notice and comment.
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9525 - CHANGES
TO PERMITS
Part 270 Subpart D
                    ATKl/l 104/59 kp
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                                                    9525.1982(01)


January 29, 1982


MEMORANDUM


SUBJECT:  Proposed Mechanism for Handling Mobile Treatment Units

FROM:     John H. Skinner
          Director, State Programs
            and Resource Recovery Division  (WH-563)

TO:       Howard Zeller
          Acting Director
          Enforcement Division, Region IV


     This is in response to your memorandum of September 25,
1981, requesting concurrence with your proposed mechanism to
handle mobile treatment facilities.

     We agree with Region IV's interpretation of the regulations,
that interim status and RCRA permits are site specific and
therefore, mobile treatment units alone cannot receive permits
(or interim status) but must be permitted (or receive interim
status) for use at a particular location.  We have written at
least one letter to that effect.  (See letter from John Skinner
to Timothy Vanderver of Chemfix Technologies, Inc. dated June 2,
1981, sent to the Regions on that date).

     The following approach, which is somewhat similar to the one
suggested in your memorandum,  will enable mobile treatment units
to operate within the scope of the RCRA program.  This approach
has been developed after meeting with several mobile treatment
companies.  We have divided the approach into the following four
situations:

          (1)   Non-emergency situations at a site which has
               interim status;

          (2)   Non-emergency situations at a site which has a
               RCRA permit  (e.g., periodic use of mobile
               treatment units during the operating life of the
               facility, use at closure);
        This document has been retyped from the original.
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                                -2-

           (3)   Non-emergency  situations  at  a  site which  does  not
                have  interim status  or a  RCRA  permit  (e.g.,
                remedial  actions at  inactive sites);

           (4)   Emergency situations (e.g.,  spills, emergency
                response).

 (1)  Non-emergency situations at a  site  which has interim  status

     This  approach would enable a mobile treatment unit  to
 operate during  interim status under one  of  three alternatives.
 (Alternative  (c) will be proposed soon as an  amendment to  40
 C.F.R. §122.23, Changes  during  interim status).

     (a)   An  interim status facility which  intended to use mobile
 treatment  eguipment, but did not include it in the original Part
 A permit application, may amend its Part A  application to  include
 the mobile treatment process.   The  Agency would treat these
 facilities as it would any facility which submitted an incomplete
 Part A permit application.  The only requirement is that the
 equipment  must  have  been in existence on or before November 19,
 1980,1  and the facility must have qualified for interim status.

     (b)   Mobile treatment may  be added  to  a  facility as a new
 process or an increase in the design capacity of an existing
 process under the allowable changes during  interim status, 40
 C.F.R. §122.23(c)(2) or  (c)(3).  Under these  sections, a mobile
 treatment  unit  may be added to  a facility if  it is necessary
 either to  prevent a  threat to human health  and the environment
 because of an emergency  situation;   to comply with Federal
 regulations or  state and local  laws; or  because of a lack  of
 available  treatment, storage, or disposal capacity at other
 facilities.  It should be noted, however, that these sections
will change with the amendment  to §122.23.
I/    Because mobile  treatment  units are unique  in  that they are
used intermittently at different sites,  they will be considered  in
existence if they were operating at any site on  or about November
19, 1980.  Normally,  a unit would have to be operating  on or about
November 19, 1980, at a site which qualified for  interim status  to
be considered in existence.
        This document has been retyped from the original.
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                               -3-

      (c)  The proposed amendments to 122.23(c) will include a
section which will allow interim status facilities to add tanks
and containers used for the treatment or storage of hazardous
waste.  Such tanks and containers may be added for any reason,
whether or not the facility previously had tanks or containers,
or any treatment or storage process.  The facility must have
qualified for interim status, however.  This amendment, if
promulgated as proposed, will enable most interim status
facilities to add mobile treatment done in tanks or containers to
their facilities.

(2)  Non-emeraencv situations at a site which has a RCRA permit

     A mobile treatment unit may be added to a permitted facility
under §122.15 as a permit modification.  Section 122.15(a)(l)
allows a permit to be modified, or revoked and reissued when
substantial alterations or additions to the permitted facility or
activity occur.

     We will be proposing amendments to §122.17 which, in some
limited circumstances, may allow the addition of mobile treatment
units to be considered minor modifications to a facility.

(3)  Non-Emergency situations at a site which does not have
     interim status or a RCRA permit

     Our approach is to require a permit before a mobile
treatment operator may begin operation at a non-emergency site
which does not have interim status or a RCRA permit.  In most
situations where the mobile treatment company is handling the
clean-up, it will be considered both owner (of the equipment) and
operator, and must apply for a permit.  If there is another owner
involved as well, e.g., owner of the land, that owner may also
have to sign the permit application.

(4)  Emergency Situations

     There are two emergency mechanisms already in place in the
RCRA regulations.  First, storage or treatment done in immediate
response to a spill of hazardous waste may occur without first
obtaining a RCRA permit.  (See 40 CFR §264.l(g)(8), 45 FR 76630,
November 19, 1980).

     Second, there is a provision for an emergency permit in 40
CFR §122.27.  This is a temporary permit to be used in the event
that treatment, storage, or disposal of hazardous waste must take
place due to an emergency situation.
        This document has been retyped from the original.
-------
                               -4-

     Your concept of a generic permit would allow the mobile
treatment operation itself to obtain a permit, and then require
public notice before the mobile treatment operation is used at
each individual site.  The concept is obviously a departure from
the present RCRA scheme of site specific permits.  We will look
into this suggestion further.  In the meantime, the approach
described in this memorandum must be used.

     We would appreciate any comments you have on our approach to
handling mobile treatment units.  If you have further questions
or comments, please contact Deborah Wolpe at  (202) 755-9107.

cc:  Directors, Air & Hazardous Materials Division, Regions I,
     III-X
     Director, Water Division, Region II
     James Bunting
     Martha Prothro
     Dotz Darrah
        This document has been retyped from the original.
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                                              9525.1984(01)





              RCRA/SUPERFUND HOTLINE SUMMARIES

                             AUGUST 84
3.   An Interim status  facility  undergoes a transfer of stock  while
     the name of the  owner/operator remains the same and the facility
     operations do not  change.   Does this change require a modified
     Part A permit application unoer §270.72(d)?
                                                                •
          If stock 1s transferred from an Interim status facility,
          the transaction  must be scrutinized by the Agency.   In
          situations  where a  majority of the company's stock 1s
          transferred to another company, operational control  and
          the financial status of tne company may change.  In
          these situations, it 1s appropriate to require a modified
          Part A.  If,  however,  only a minority Interest Is transferred,
          operational control and financial status may not change.

          In these cases a modified Part A 1s not necessary
          (assuming no  name change).

          Source:  Susan  Schmedes.
          Research: Tom Gainer
-------
                                                    9525.1985(01)
                  RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                   OCTOBER 85
4. Permit Modification

   An owner/operator  has a  RCRA permit  to store hazardous waste in containers and tanks
   The owner/operator also  generates hazardous waste on-site.  The owner/operator intent
   to construct an additional storage  area  for  the  purposes of storing hazardous wastes

   for 90 days  or  less.  Vtould the construction of this new storage area oe considered
   an action  tnac  would require modification to the facility's  RCRA permit  (§270.41 -r
   5270.42)?

       Construction <* the 90-day storage area would not require modification of trve
       facility's storage permit.  A generator may accumulate  hazardous waste on-site
       for 90 days or less without a permit or interun status  provided that  all  5262.34
       requirements are met. The 90-
-------
                    STATES ^VIROHME^AL PROT^TION
                               A   _.
                            MAR24S86
Geraldine Cox
Chemical Manufacturer's Assoc.
250T1 M Street, N.w.
Washington, D.C.   20037
Dear ,pHs. Coxi

     I apologize for  the  delay  In  responding to your letter of
February 10,  1986, concerning the  final  rule to list solvent
mixtures (50  PR 53315, December 31,  1985).

     Facilities that  were permitted  to nanacre EPA Hazardous
Waste Nos. F001-P005  before  December 31,  1985, may handle
the newly listed solvent  mixtures  wthout  major permit
modifications.  Thus, you are correct in  stating that major
permit modifications  are  required  when a  facility is not
already permitted to  manage  the apolicable  F001-F005 wadte.

     If you have additional  questions, please call Jacqueline
Sales of my staff, at 382-4770.
                           Sincerely,
                          Alan  S.  Corson
                          Chief
                          Studies  and  Methods Branch (WH-562B)
                                                                   19l«-«3»-«J»
-------
(
"'•
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON, DC. 20460
                                                       O**ICE OF
                                               SOLID WASTE AND EMERGENCY RESPQNSt
 Robert  T.  Stewart
 Jones,  Day,  Reavis and Pogue
 2300  LTV Center
 2001  Ross  Avenue
 Dallas,  Texas   75201

 Dear  Mr. Roberts:

      Thank you  for your letter of  February  10  concerning  RCRA
 permit  modifications.   In that letter,  you  requested  advice  as
 to whether a facility  with a RCRA  permit  would need to  have
 its permit modified because of the amended  definition of  solid
 waste.   Your letter described two  separate  scenarios, each of
 which is addressed below.

      In  the first  case, a facility had  received a  RCRA .permit
 and a unit at  that facility was handling  an unregulated material
 described  in the Part  B application.  Through  the  redefinition
 of solid waste, the material is now defined as a hazardous waste.
 In this  instance,  the  need for a permit modification  would have
 to be determined on a  case-by-case basis.  If  the  handling of
 the previously  unregulated material was not detailed  in the
 draft permit that  received public  comment,  or  if conditions
 contained  in the permit specifically  exempted  that unit from
 RCRA  standards, then a permit modification  would be required.
 If the unit and the waste was fully detailed in the draft permit
 and was  subject to full RCRA standards, then a permit modification
 would not  be required.

      In  the second case/ a facility had received a RCRA permit
 which included  a unit  that was handling an  unregulated  material,
 however, the material  was not described in  the Part B application.
 The applicable  law in  this case is Section  3005(e)(l) of  RCRA
 which provides  that any facility in existence  on the  effective
 date  of  RCRA statutory or regulatory  changes that  render  the
 facility subject to the requirement to  have a  permit  or interim
 status may qualify for interim status.  Section 30U5(e)(l),
 however, is limited to facilities  which become subject  to the
 requirement to  have a  permit.  Units  at facilities described
 above are  not eligible for interim status since interim status
 terminated upon issuance of the permit.  In order  for these
 units to handle a  newly regulated  waste,  a  facility must  apply
 for a permit modification before the  effective date of  the
 statutory  or regulatory amendment  mandating such change.
-------
                                - 2 -
      Your letter also stated that allowing newly regulated units
to obtain interim status would be consistent with 40 CFR 270.1(c)(4)
which allows partial permitting of a facility.  We disagree with
your interpretation, however/ that the section also extends to
eligibility for interim status.  Finally, your letter stated that
requiring permit modifications would put permitted facilities at
an unfair disadvantage with interim status facilities.  We agree
that the procedures for adding new wastes are less burdensome'for
interim status facilities.  However, newly regulated units at
such facilities are not automatically eligible for interim status.
Under 40 CFR 270.72, a revised Part A permit application must be
submitted prior to any change during interim status.  If the
change results in an increase in the design capacity of the facility,
approval may only be granted because of a lack of available treatment
storage, or disposal capacity at other hazardous waste management
facilities.  In no event can a change during interim status exceed
fifty percent of the capital cost of a comparable new facility.

      We recognize that current requirements for adding new
hazardous wastes at permitted facilities place a difficult burden
on both the owner/operator and the permitting authority to submit
and process modification applications in a timely manner.  We are
currently exploring regulatory alternatives that would provide
some relief in this area.

      If you have any further questions on this subject, please
contact Peter Guerrero, Chief Permits Branch, at 382-4470.

                                 Sincerely,
                                 Marci* E. Williams
                                 Director
                                 Office of Solid Waste
-------
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                     HKW!         "23.1986,04,


Mr. Craig A. Barney
Rohm and HAM
Research Laboratories
727 Norristown Road
Spring Houae, Pa.  19477

Dear Mr. Barney:

     Thank you for your letter of July 16, regarding the management
of scintillation viala containing D001 wastes.  I will respond to
your questions in order.

     1.  If a RCRA facility  (either  pernitted or with Interim
     status) intends to aanage vaste other than those identified
     in its Part A permit application (whether as a result of
     handling nixed waste or otherwise), It Bust submit a revised
     Part A permit application to apply for a permit modification
     or a change during Interim status, whichever is applicable
     (see 40 CFR 270.41 and 270.72).  The aaae is true if the units
     or processes In which those wastes are managed will change as
     a result of accepting wastes previously not included on  the
     Part A.  Only where none of the information on the existing
     Part A changes may a facility manage radioactive mixed
     wastes without any notification to EPA or the authorized
     State.

     2.  If the facility Is not changing the hacardous wastes it
     is handling or the units or processes In which the wastes
     are handled, then the RCRA permit need not be amended.
     However, the facility must comply with any applicable NRC
     licensing requirements, aa well, If it wishes to begin
     storing radioactive mixed waste.

     3.  The waste must be manifested in accordance with both
     RCRA aad AEA requirements.

     However, radioactive mixed waste is not subject to AEA
requirements if the Nuclear Regulatory Commission has designated
the radioactive components of that waate aa "below regulatory
concern".  This has been done for liquid scintillation media  with
0.05 microcurlea or less of hydrogen-3 or carbon-14, per gram of
medium uaed for liquid scintillation counting (see attached
Federal Register notice).
-------
                                                                   9525.1986(35)
               RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                OCTOBER 86
Termination of Permits

A permitted facility closes all its tanks and container storage areas,
its only RCRA-regulated units.  The region now wishes to terminate
the permit because the facility no longer has any active units and is
not subject to the post-closure care requirements of 40 CFR 264.117.
The facility has complied with all the permit conditions and has
disclosed all relevant facts for the permit.  On what basis may EPA
terminate the facility's permit?

     40 CFR 270.43(a) presents the reasons for which EPA may terminate
     a facility's permit or deny a permit renewal application.  EPA
     may terminate a permit if the facility fails to comply with any
     condition of the prmit, or if the permittee fails to fully disclose
     relevant information during the permit application or issuance process.
     EPA may also terminate a permit if the permittee misrepre sents any
     relevant facts, or if the permitted activity endangers human health
     or the environment.  A different type of permit termination occurs
     when a permit is revoked and reissued during transfer of a permit
     to a new owner/operator, per §270.30(1)(3) and §270.41 (b)(2) or
     the Regional Administrator and the permittee agree to termination
     in the course of transferring permit responsibility to an authorized
     state under §271.8(b)(6).  Nothing in the regulations allows for
     permit termination because permit conditions no longer apply to a
     facility.  Normally the owner/operator of a facility that has
     closed all its RCRA units and has no post-closure care requirements
     would allow the permit to expire.  Although the owner/operator is
     still subject to Part 264 standards, there are no hazardous waste
     management activities to regulate.  The owner/operator's financial
     responsibilities should end after the region receives certification
     of closure (SS264.143U), 264.147(e)).  According to $124.5(a) the
     permittee may request termination, but EPA may still only terminate
     a permit for the reasons given in §270.43.

     Nevertheless, EPA dees have authority to modify a permit if  the  Director
     receives new information, or there are material and substantial  alterations
     to the permitted activity, that justify permit conditions different  from
     those in the existing permit (§270.41(a)(1)(2)).  According  to §270.50, the
     maximum permit duration  is ten years, but a permit may cover a shorter time
     period.  In this situation, EPA could modify the  permit  so that  it would
     expire shortly after the earlier closure date.

     Source:    Matt Hale (202) 382-4740
     Research:  Jennifer Brock
-------
                                                  9525.1986(06)
               RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                               NOVEMBER  86
4.  Termination of Permits

    A permitted facility closes all its tanks and container  storage  areas,
    its only RCRA-regulated units.   The region now wishes  to terminate  the
    permit because the facility no longer has any active units  and is not
    subject to the post-closure care requirements of 40 CFR  264.117.  The
    facility has complied with all the permit conditions and has  disclosed
    all relevant facts for the permit.  On what basis may  EPA terminate the
    facility's permit?

    40 CFR 270.43(a) presents the reasons for which EPA may
    terminate a facility's permit or deny a permit renewal
    application.  EPA may terminate a permit if the facility
    fails to coroply with any condition of the permit,  or if
    the permittee fails to provide complete information
    relevant to the permit application or issuance process.
    EPA may also terminate a permit if the permittee mis-
    represents any relevant facts, or if the permitted
    activity endangers human health or the environment.
    A permit may also be revoked and reissued during transfer
    of a permit to a new owner/operator, per 5270.30(1)(3) and
    S270.41(b)(2).  Nothing in the regulations allows for
    permit termination because permit conditions no longer apply
    to a facility.  Normally the owner/operator of a facility
    that has closed all its RCRA units and has no post-closure
    care requirements would allow the permit to expire. Although
    the owner/operator is still subject to Part 264 standards,
    there are no hazardous waste management activities to
    reguiate.  The owner/operator's financial responsibilities
    should end after the region receives certification of
    closure (SS264.143U), 264.147(e)).

    If a facility owner/operator wishes to terminate its permit
    before the termination date in the permit, it should request
    a major permit modification under S270.41.  According  to
    §270.50, the maximum permit duration is ten years, but a
    permit may cover a shorter time period.  In this situation,
    EPA could modify the permit so that it would expire shortly
    after the earlier closure date.
    Source:   Matt Hale (202) 382-4740
    Research: Jennifer Brock
-------
                                                9525.1986(07)
             RCRA/SUPERFUND  HOTLINE  MONTHLY SUMMARY

                              DECEMBER 86
17.   Treatment Capacity

     In ±n effort  to  supply greater treatment capacity for restricted
     wastes,  how may  an owner/operator  incorporate new waste streams into
     
-------
                                                         9525.1988(01}

 2.   Corrective Action and Permits

      If  a  release  of  hazardous waste or hazardous constituents
      from a solid waste management unit (SWMD) is identified after
      the  issuance  of  a  permit,  can  EPA reopen the permit and
      modify  it  to   include   additional   investigation  and/or
      corrective measures?  Does the "permit as a shield" provision
      in 40 CFR 270.4(a)  protect  the  facility  from  such action
      until the permit comes up for reissue?

           Permits issued  prior to  November 8,  1984, the date of
           enactment of the Hazardous  and Solid  Waste Amendments,
           cannot  be  reopened  to  establish  a  Section  3004(u)
           corrective action  program  until  reissuance.   Permits
           issued after November 8, 1984, address releases from all
           solid waste management units  (SWMDa)  at  the facility.
           During  the  permitting  process  EPA  conducts  a  RCRA
           Facility Assessment (RFA) to determine whether there has
           been  a   release  from  any  SWMD  located  within  the
           facility's boundaries.  The RFA  also determines whether
           any  further  investigations  or corrective measures are
           necessary.    EPA  will   then  develop   a  custom-made
           corrective  action  program  which  will be incorporated
           into the  permit.   Most permits  currently being issued
           contain a  reopener clause for newly identified releases
J5          after permit issuance.   Absent such  a reopener clause,
3          if  the   Director  receives  information  about  a  new
£          release, then  the authority  under Section 270.41(a)(2)
w          could  be  employed.    Section 270.41(a)(2) states that
>          when the Director has received new information that "was
»J          not available at the time of permit issuance (other than
*          revised   regulations    [see   Section   270.41 (a) (3) ],
§          guidance,  or  test methods)  and would have justified the
*  S      application of different permit  conditions at  the time
w          of  issuance"    the  permit  may be modified during its
*  a      term.
b  O
O  «      The "permit as a shield" provision in Section 270.4 does
*  £      not  provide  a  shield  when  new  information  such as
Q  fc      mentioned above is obtained after permit  issuance.  The
2j          "permit as a shield" provision applies to standards that
gj          are  established  in   the   permit   which   cannot  be
H          arbitrarily changed  by the  Director during the term of
2>          the permit.  Section 270.41(a)(3) allows a permit  to be
-------
            RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                          FEBRUARY 88
2.    Corrective Action and Permits (Cont'd)

     to "modify  the  permit  when the standards  and regulations on
     which the permit was   based have  been  changed  by  statute or
     amended standards  or regulations"  such as the land  disposal
     restrictions in  40 CFR Part 268.

     Source:    Matt  Bale      (202)  382-4740
                Dave  Pagan    (202)  382-4497
     Research:   Deborah McKie
-------
                                            9525.1988(02)
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON. O.C. 20460
                              1111    I iQQQ                    °f"Ci -e
                             JUL   I 13OO            SOLID WAS'- AND EMEBGENCV 'ESPQV
MEMORANDUM

SUBJECT:  Guidance on  Permitting  Issues  Related  to  the  Oupont
          Edgemore Facility
                                -
FROM:     Bruce R. Weddle,  Director
          Permits and State Programs  Division

TO:       Robert E. Greaves,  Chief
          Waste Management  Branch
          Region III

     This is  in response  to your memo of June  6,  1988,  in which
you requested guidance  from Headquarters on  several  permitting
issues related to the Dupont Edgemoor facility in Delaware.
You explained in your memo  that the facility was  granted a
construction  and operation  storage permit  by the  State  and a
HSWA permit by EPA.  The  State  permit expires  on  September 30,
1989; the HSWA permit on  March  1, 1989.  You also explained
that the facility never built the storage  unit for which the
permit was requested and  no longer wishes  to do so.   You raised
several issues about the  status of the permit  in  light  of the
above.  Each  issue you  asked is addressed  individually  below.
Please note that, for clarity,  we have reframed a few of the
issues.

1.  As the unit was never built, is the State  portion of the
permit effective?

     The question of whether construction  is necessary  for the
State portion of the permit to  become effective is one  of State
law.  Under the Federal regulations,  construction is not
required for  the permit to  become effective.  A final permit
decision becomes effective  30 days after the Regional
Administrator issues notice of  the decision  unless:   (1) a
later effective date is specified in  the decision; (2)  review
is requested; or (3) no comments requested a change  in  the
draft permit, in which  case the permit shall become  immediately
effective fsee § 124.15(b)).  Thus,  if the State  law is similar
to the Federal, construction is not required for the permit to
become effective.
-------
                               -2-
 2.   If the State portion of the permit has not been
 effectuated,  (that is. construction of the unit has not taken
 placed. can the corrective action portion of the permit be
 enforced?

     Section  3004(u) of HSWA specifically states that "permits
 issued under  section 3005 shall contain schedules of compliance
 for  ...corrective action ...."  Since the full RCRA permit
 (State and Federal portions) in this case has been issued, the
 statutory requirement for corrective action has been
 triggered.  Therefore, the corrective action portion of the
 permit can and should be enforced even if construction under
 the  State portion has not occurred.

 3.   Is revocation of the permit a State. Federal, or combined
 action?

     Revocation and reissuance of the full RCRA permit is a
 combined action because issuance is a combined action.  To
 revoke and reissue the State portion, State procedures must be
 followed; to  revoke and reissue the Federal portion, the
 procedures of Part 124 must be followed.  It should be noted
 that this does not preclude a joint proceeding; however, two
 separate decisions must be made.  Most important, the State has
 no authority  to revoke and reissue the Federal portion or vice
 versa.

 4.   If it is  possible to separate the State portion from the
 corrective action portion during revocation of the permit, can
 the  corrective action portion of the permit be enforced
 separately if the State portion is revoked?

     Yes.  If the State portion is revoked or terminated, or  if
 it expires, there is no effect on the HSWA portion of the
permit.  Once the permit is issued, the HSWA portion can
continue on its own.

 5.  What can be dona, if anything, to extend the terms of the
corrective action portion of the permit beyond March 1. 1989?

     We believe there are three ways to extend the terms of the
corrective action portion of the permit beyond March 1, 1989.

     A.  Permit Modification.  Under section 270.41, the Agency
can modify a permit if cause exists under paragraph  (a) or  (b)
of that section.  The Agency could use this authority to extend
the expiration date of the corrective action portion of the
permit by means of a permit modification.  There is no
-------
                               -3-
 requirement under the regulations that the permittee agree to
 the extension.  Using this approach the permit life could be
 extended until September 29, 1995 since section 270.50(b)
 limits such an extension of the original permit life to a total
 of 10 years.

     Modification of the permit under section 270.41(a)(2) to
 increase the permit term is allowed if the Agency receives
 information that was (1) not available at the time of permit
 issuance and (2) would have justified the application of
 different permit conditions at the time.  To determine whether
 these grounds can be satisfied, we suggest that you investigate
 (1) whether the facility RFA, when completed, will result in
 new information about releases at the facility that would have
 justified a longer term for corrective action; and  (2) whether
 Dupont's subsequent decision not to operate is new information
 that would have justified a different term for the corrective
 action portion of the permit because of the change in the
 expected duration of Dupont's active interest in the site.

     B.  Revocation and Reissuance.  Section 270.41 provides
 for revocation and reissuance of permits.  Under section
 27O.4i(a)(2), the causes for revocation and reissuance are the
 same as those for permit modification discussed above; however,
 the permittee must agree to the revocation and reissuance.
 Section 270.41 also provides that if a permit is revoked and
 reissued, it is reissued for a new term.  Thus, the permit term
 could be extended for a period of up to 10 years from the date
 of reissuance.

     C.  Continuation of Permit.  If the Agency does not take
 action under A or B above, the permit will expire.  There are
 two ways to continue the HSWA permit at expiration.  First,  if
 the facility submits a timely application for a new HSWA
permit, the existing permit conditions continue in  force under
 section 270.51(a) until a new permit is issued.  Second, if, at
 the time of expiration, the facility is not in compliance with
 the terns of the permit, then the Agency can invoke section
 270.51(c)(3) of the regulations, which allows the Regional
Administrator to issue a new permit under Part 124 with
 appropriate-conditions.  Of course, this procedure  requires  the
Agency to demonstrate that the facility is out of compliance
with its permit.  In this case, the Agency could demonstrate
non-compliance if, for example, the facility failed to complete
the RFA required by the HSWA portion of the permit.
-------
                               -4-
6.  Tf th« oarmit expires and the Region is therefore unable to
enforce the corrective action portion of the permit.  is Section
3013 the proper enforcement vehicle to address corrective
action?

     Section 3013 allows the Agency to require monitoring,
testing, analysis, and reporting, and therefore this section
can be used to require such activities to investigate the need
for corrective action.  However, the Agency cannot compel
corrective action under that section.  Either section 3008(a)
or 7003 would be an appropriate enforcement authority to carry
out corrective action.  Note that under section 7003, the
Region would have to demonstrate that there is imminent and
substantial endangerment.  In summary, the most effective
response is to pursue permit modification, revocation and
reissuance, or continuation as discussed above, prior to the
time that the HSWA permit expires.  Otherwise, EPA's ability to
pursue any needed corrective action at the facility is a
potentially more complex process.

     I hope this answers your questions regarding the Dupont
Edgemoor facility.  If you have any questions, please contact
Frank McAlister at 382-2223.

cc:  Matt Hale
     Frank McAlister
     Barbara Foster
     Fred Chanania
     Jackie Tenusak
     RCRA Branch Chiefs, Regions I-X
-------
            RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY         9525.1989(01)

                              MAY  89
 2. fnterim Status vg. Permit Modification for N'ewlv Regulate^

 An  owner  or operator of a  fully permitted  facility manages  RCRA  non-
 hazardous waste in several surface impoundments.    This  waste  will become
 subject to Subtitle C  regulation if the  Toxic Characteristic Leaching Procedure
 (TCLP) for waste identification becomes final and effective.

 a) Will the surface impoundments qualify for interim  status?  If  a  permit
   modification is required, what modification class would be applicable?

   .\ewly regulated units at fully permitted facilities do not qualify for interim
   status.  Interim status is granted to facilities and not to individual units per
   Section 3005(e) of RCRA.  Instead, the permittee  would follow the permit
   modification procedures in Section 270.42(g).  First, as  of the time the TCLP
   rule becomes effective, the  Class  1 permit modification process must be
   followed for the permittee  to continue  managing the newly identified waste.
   Under these procedures,  the permittee notifies EPA  and the public.  Six
   months after the TCLP rule's  effective date, the permittee must then apply for
   a Class 2 or 3 permit modification, depending on the modifications necessary,
   and follow the appropriate procedures. Permittees that have not previously
   managed the newly identified  waste  may  not  use the process in  Section
   270.42(g) and must complete the applicable permit modification procedure
   prior to treating, storing, or disposing of the waste.  (See 53 fg 37912, 37922.)

 b) Section 3005(j)(6)(A) of RCRA states that surface impoundments that become
   subject to Subtitle C due to the promulgation of a new listing or characteristic
   for identifying a waste as  hazardous will have four years from the date of
   such promulgation  to meet the retrofitting requirements under  Section
   3004(o)  of  RCRA.    Does this  provision apply  to existing  surface
   impoundments which become newly  regulated but are not authorized to
   operate under interim status?

   Yes. EPA currently interprets Section 3005(j)(6)(A) as being applicable to units
   at facilities requiring permit modification due to a new listing or characteristic
   for identifying a waste as hazardous. Therefore, newly regulated units at fully
   permitted facilities will have four years from the  date of promulgation of a
   new listing or characteristic to comply with the retrofitting requirements.

Source:        Wayne Roepe           (202) 382-4740
Resource:      Debbie Doherty          (202) 382-3112
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               RCRA/SUPERFUND HOTLINE SUMM

                          AUGUST 1990
                     9525.1990(01
I.  SIGNIFICANT QUESTIONS AND RESOLVED ISSUES—AUGUST 1990

   RCRA

   1.   Public Comment Periods for Permit Modifications

   When submitting a Class III permit modification request, the permittee,
   per 40 CFR Section 270.42(c)(2), must hold a public meeting and provide
   the public with at least 60 days to comment on the request.  According to
   Section 270.42(c)(6), "after the conclusion of the 60-day comment period,
   the Director must grant or deny the permit modification request according
   to  the permit modification procedures of 40 CFR Part 124."  According to
   Section 124.10(b)(l), the public must be provided with a 45-day comment
   period.  Do these comment periods serve the same function?  If so, could
   just one comment period  suffice in lieu of the other?

       The 60-day comment period in Section 270.42(c) and the comment
       period in Section 124.10(b) are separate and distinct because they are
       designed for  two different purposes. The  60-day  period allows
       comment on  the  permitee's request and assists the Director in
       deciding whether to prepare a draft modification or a tentative denial;
       the 45-day period allows comment on the Director's proposed action.
       The review periods must occur separately.   The differences are
       summarized in the table below:

60-DAY PERIOD
46-DAY PERIOD
INITIATED BY:
The permittee
The Director
WRITTEN
COMMENTS ON:
The permittee's
request
The draft
modification
or tentative denial.
ORAL COMMENT
FORUM:
A public'meeting'
conducted by the
permittee
A public'hearino'
conducted by the
Director •
       * Not mandatory

       The 60-day comment period is the first to occur and is initiated by the
       permittee. The permittee must hold a public meeting no fewer than
       15 days after the meeting notice or no fewer than 15 days before the
       end of the comment period.   After the conclusion  of  the 60-day
       comment period, the Director will  issue a draft permit modification
       and allow the public 45 days to comment on the draft. The Director
       will hold  a public hearing if requested.
   Source:        Wayne Roepe, OSW
   Research:      Kevin Dunn
(202)475-7245
-------
                                                 9525.1990(02)
4W
^^^^P ^ fttCS^
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C.  20460
                           OCT I 7 1990
                                                      OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
Mr. James T. McVey
Executive Vice President
Diversified Scientific Services, Inc.
P. 0. Box 863
Kingston, Tennessee 37763
Dear Mr. McVey:
           \
     This is in response to your letter of August 8, 1990, in
which you request the Environmental Protection Agency's (EPA)
consideration and advice on your proposal to treat some
radioactive mixed waste prior to disposal.  Currently, your
permit, which was issued under the authority of the Resource
Conservation and Recovery Act (RCRA) for treatment, storage, and
disposal (TSD) of hazardous waste, does not include provisions
for the management of the specific type of mixed waste you
propose to treat.  I understand that my staff has discussed this
issue and the delay in our response in earlier telephone
conversations with you.

     Specifically, you propose to stabilize 825 drums of barium
chloride salts (D005 wastes) containing low concentrations of
uranimum prior to disposal of the waste in a licensed nuclear
waste burial facility.  This waste would be shipped from its
present location at Westinghouse Materials Company of Ohio in
Fernald, Ohio, to Diversified Scientific Services, Incorporated's
ROSSI'S) TSD facility in Kingston, Tennessee for treatment.  The
State of Tennessee, which is authorized for both the radioactive
mixed waste program and radioactive materials licensing
activities, has denied your request to treat the D005 waste under
the existing conditions of your RCRA permit.  The State has
determined that your RCRA permit must be modified to include
specific provisions for the management of D005 waste, prior to
treating the waste for land disposal.  EPA concurs with the
State's assessment that this waste may not be treated at the DSSI
facility without first obtaining the necessary modification to
DSSI's RCRA permit.

     Before addressing the permit modification procedures, please
be advised that D005 waste is subject to the land disposal
restrictions which are provisions of the Hazardous and Solid
Waste Amendments  (HSWA) to RCRA.  Among other things, HSWA
                                                         Primtd on Ktcycltd faptr
-------
prohibits restricted wastes from land disposal unless the wastes
meet the treatment standards established by EPA.  For D005 waste,
EPA has prescribed a treatment level of 100 mg/1 as the
characteristic level for barium.  In your letter, you indicated
that the D005 mixed waste would be disposed at a licensed nuclear
waste burial site after treatment.  Therefore, the waste must be
treated to meet the land disposal restriction program's
prescribed t.L«atment level prior to such disposal.

     In regard to RCRA permit modification procedures, there are
two procedural avenues available for obtaining the necessary
modification: through State procedures or through Federal
procedures.  Since Tennessee is authorized to control DO05 mixed
waste, you could apply to the State for appropriate changes to
your RCRA permit.  In this case, you would follow the State's
permit modification process.  Alternatively, since Tennessee does
not have authorization for the land disposal restrictions, EPA
administers and enforces this program, as mandated by HSWA, until
the State is specifically authorized to do so.  Pursuant to this
Federal authority, EPA may add conditions to your RCRA permit to
allow treatment of the D005 wastes so that the land disposal
restrictions will be met.  In this case, the Federal modification
procedures in 40 CFR 270.42 would be used.  Please note that on
March 7, 1989, EPA created expedited modification procedures to
allow facilities to add new waste codes and/or treatment
processes to comply with the land disposal restrictions, if the
specified conditions are met (54 FR 9596; see enclosure).
However, you should also note that a Federal change to the RCRA
permit will not override more stringent state requirements.  In
this regard, you should confirm with the State that such Federal
approval will also satisfy the State program.

     I encourage you to work closely with the EPA Region and
State authorities to obtain the permit modification required to
treat the D005 waste.  Mr. Wayne Garfinkel in the RCRA program
office, USEPA Region IV, in Atlanta, Georgia may be contacted at
(404) 347-3433 for further assistance on this matter.  In
Addition, Mr. Dale Ozier of the Solid Waste Management Division,
Department of Health and Environment in Nashville, Tennessee may
be contacted at (615) 741-3424, for assistance from the State.

     Also, we have a strong interest in following the development
of s*fe and environmentally sound treatment and disposal methods
for mixed waste, particularly in view of the current shortfall in
treatment and disposal capacity.  As part of our effort to
maintain current information in this area, I invite you to work
closely with my staff to exchange information on technology
development, as well as existing permitted facilities involved in
the management and disposal of radioactive mixed waste.
-------
     If you have general questions regarding the Federal permit
modification procedures, please contact Wayne Roepe of my staff
at (202) 475-7245.  Please contact Jared Flood of my staff at
(202) 475-7066, if you have any questions concerning our
activities on radioactive mixed waste.
                                        ria
                                      [rector
                                    Office of Solid Waste
Enclosure

cc: Wayne Garfinkel
    USEPA, Region IV

    Dale Ozier
    Solid Waste Management Division
    Dept. of Health and Environment
-------
9527 - SPECIAL FORMS
OF PERMITS	
Part 270 Subpart F
                    ATKl/l 104/60 kp
-------
                                                    9527.1982(01)


November 2, 1982


MEMORANDUM
SUBJECT:  RCRA Permits for Mobile Treatment Units
          Using the Same Type of Equipment

FROM:     Rita M. Lavelle
          Assistant Administrator
          Office of Solid Waste and Emergency Response (WH-562A)

TO:       Regional Administrators and Regional Waste
          Management Directors, Regions I-X


     As you know, a RCRA permit is reguired for each site at
which hazardous waste treatment, storage or disposal facilities
(TSDFs) operate.  If the TSDF is mobile or if the same type of
equipment (e.g., a tank of identical design)  is used at more than
one site to handle a similar or identical waste, a RCRA permit is
still required at each location.  The purpose of this memorandum
is to establish the policy the Agency will use to permit mobile
treatment units  (MTU's) and to permit fixed facilities where a
person uses the same type of equipment to handle similar or
identical wastes at multiple locations.

     A person applying to use the same type of equipment at
multiple locations will find that much of the information in the
permit application for the first location will not change for the
other locations because the information is not site-specific.
Permit writers should note that after the non-site-specific
permit conditions have been developed for the first RCRA permit,
these permit conditions should be used for all subsequent
permits.  While not changing any procedures for obtaining a RCRA
permit, this policy will assure national consistency for permits
issued to facilities using the same or similar equipment and
should expedite the issuance of RCRA permits without compromising
environmental controls.

     The procedures an applicant and permit writer should use to
deal with MTU permits or same-type-equipment permits are as
follows:  An applicant must apply for and be issued a RCRA permit
at the first site.  It is the responsibility of the applicant to
notify the permit writer of the first RCRA permit.  The
application for the permit at the next site should consist of the
        This document has been retyped from the original.
-------
                               -2-

non-site-specific information from the first application, a copy
of the first permit, and the site-specific information for the
new location.  This site-specific information must include any
variation in the equipment or wastes from those permitted at the
first site.  The permit writer should use the non-site-specific
permit conditions from the first permit (to the extent that
variations in equipment and wastes do not require otherwise) as
conditions in the second permit and draft new permit conditions
for the site-specific items only.

     The Agency can also rely on previous responses to comments
for comments dealing with non-site-specific permit conditions
received in a second (or subsequent) proceeding if the same or
similar comments were raised on an earlier permit.  Response to
public comment concerning non-site-specific issues should be as
follows:  If a comment is similar to a comment raised in an
earlier permit issuance proceeding, any response should be the
same as that given in the first proceeding.  If, however, a
significant comment addresses an issue differently than it was
addressed in the first proceeding, or a significant comment
raises an issue not addressed in the first proceeding, the
Regional Administrator must, of course, respond to that comment
before the permit may be issued.

     The reuse of part of the initial permit application and the
resulting permit conditions will allow EPA to streamline the
permit process for mobile treatment units and for multiple
facilities that use the same type of equipment to handle similar
or identical wastes.  This policy is likely to be first applied
to EPA's mobile incinerator which is currently being permitted in
Region II.

     I have discussed this approach with Dr. John A. Todhunter,
Assistant Administrator for Pesticides and Toxic Substances, and
he has indicated that it is consistent with and similar to the
approach his office will use to permit mobile facilities
disposing of PCB's.

     For more information or guidance on the policy outlined in
this memorandum,  contact Jeff Detlefsen, of my staff, at EPA
Headquarters, 202-382-4500.

cc:  Dr. John A.  Todhunter
        This document has been retyped from the original.
-------
                                                        9527-1985(01
' r. Lewis  u• ..a
• •c-fiity cor L'nvironrent, .-atety  and
  >. ccuj'a t icnal ."ealtn
< .«:<,>.  (UD
rOOM  2L613
i'entaqcn
'..ashing ten, L'.C. 2C31u-0103

[ear  i-ir. '..alker:

      My .-staff and I have  reviewed the  Technical  Locur-ent  ''a ted
27 June 198b, which was submitted by the  U.S. Amy  Chenical
Ac:ent/Munitions System  (CAMDS)  Cirectorate,  to consider the
CA.'.DS site at Tooele Arry  repot  in Tooele, f^tah  as  a  "totally
enclosed treatnent facility" and thereby  exenpted t'ron HCRA
j.uotitlo C requirements.   The substance of this  docunent  was
presentee to technical, policy,  and leqal  FPA'statf at a
on September 5, 1985, by  several Departrent  of Intense  (PoD)
personnel.

      A "totally enclosed  treatrent facility" under  nCPA is
uefined in 40 C.F.P.. 5260.10 as:

      ... a facility for the treatment  of  hazardous  waste  which
      is airectly connected to an industrial  production process
      ana which prevents tne release of any hazardous  waste  cr
      any constituent thereof into the  environment curinn  treat-
      rent.  An example  is  a pipe in which waste  acid  is neutra-
      lized.

      The CAHDS facility does not meet  this definition for two  .
reasons,  tirst, the objective  of CAMDS is to destroy obsolete
chemical munitions; this  activity constitutes treatnent as
GOfined in 5260.10 and  is  not directly connected to an  industrial
production process.  Second, this treatment  involves  incineration
or hasardous waste, thus  releasing emissions of  hazardous con-
stituents to the environment.   Theno emissions  (e.q., byproducts
ot the combustion process  aurinq normal operation and durinq
ui set conditions before the wastefeed  is  shut off)  are inherent
in the normal operation of a hazardous waste incinerator.  Fv*»n
a highly efficient incinerator  will not destroy  100 percent of
all constituents of the hazardous wastes  that are fed into it.
The regulatory exclusion  of a  totally  enclosed treatment  facility
pertains only to treatnent that prevents  releases of  hcth
wastes and their constituents.
-------
                              - 2 -


     i.e realize that Sol; r-ay SOon oe mandated to completely
.jestroy 90 percent of the military stockpile of lethal chemical
*t;ents and munitions by September 30,  1994  (H.F.   1872, 131
Ccr.c . Kec ., i'.o. b7, June 26, 1985).  Consequently, PoD intends
to use the CA/iDS facility to develop and derxsnstrate the incin-
eration technology to accomplish this  proposed statutory objective.
in view ct tne structural rodifications and/or operating chances
necessary to provide DoD and Congress  with  information about t;=e
eftectiveness of incineration to demilitarize chemical agents
and munitions at the CAMDS facility, we recommend  that the f.:.s.
Arny apply tor a research, development, and demonstration  (PP&r.)
permit under 40 C.f.P. S270.65» a full PCRA incinerator oerric
issued under 40 C..F.R. Part 264, Subpart 0 would not provide
rlexibility in r.oaifying tne design and operation  of the facility.

     All intended modifications to the facility must he identifier)
in the RD&D permit.  However, unlike a Subpart 0 permit, a trial
burn for each modification is not required to demonstrate compliance
with J)264 requirements since this would be counter to the  intent
ot an KD&D permit.  You should note, however, that before  the
racility may be operated outside the conditions specified  in the
KD&D permit (i.e., structural or operational modifications) the
RD&D permit must be re-drafted to reflect the modifications
required and must be made available for public notice and  connent.
for 45 days ($270.41).  Therefore, I recommend that attention  be
Given to planning the project so that  it is not delayed for this
reason.

     RD&D permits are limited to one year of operation (365 days
ot actual operation treating hazardous wastes), may be renewed
three tines, and must specify the type and quantities of hazardous
waste intended for treatment (S270.65(a)(1) and (2)).  The Congress
and EPA intend to limit these quantities of hazardous waste to
che Minimum necessary to demonstrate the feasibility of the
incinerators.  In order to expedite the review and issuance of
the FD&D permit, the EPA Regional Office can tailor the RCRA
permit application and procedural requirements of  40 C.F.P.
farts 124 and 270 (except for the public participation procedures
and financial assurance requirements)  to the research objectives
of the CAMDS facility ($270.65(b)).

     Until the RD4D permit is issued,  the CAMDS facility can
continue to operate under interim status, providing it continues
to operate according to the requirements of $270.71.   nuring  the
;'C*D testing, CAMDS could apply tor a  full  RCRA incinerator
permit if you intend to continue using the  incinerators to demil-
itarize stockpiles of chemical agents  and munitions following
the term of the RDiD permit; in this case*  data from the PD6D
activity nay be submitted in lieu of a trial burn  (see enclosure
1, Research Plan "B").
-------
     Vo  assist the .'erirnai >. ftice, we  revic-vpcj tf.e 1 pfor-^c *,.-,,
if.  t;.c  Technical re-cure nt  ou Tn
, k..r.f c-(.-[.lica.t ion (see enclrsure 2 ).
      i i'
       •l:e  At:ency is t-ncouracinq ^he c'oveloprent and
ot ncv/ ano  alternativr  rcchnolo^ief antJ  procc.-»s»s to treat
-iririze  riazarrious Bastes.   Ke reconniz*» tre critical nee.1  tor
'.<•>[.  to ('erilitarize cherieal arent ~unitlons, particularly  ir
view ot  the lir-iter! technical .iata on  processes and tcchnolocirs
cr.d  tr.e  lack cf facilities  to treat these »M«tes.

     ^yu  &noulc; contact  fr. Larry v;apenaky at (3O3) 293-lf62,
ir.it-r,  r.Ci-'A Worrits Section, i,?A-F«r.'ion  VIII ^hout rrccessinq
r.r.«  .-l,4L'  application.

                                    iii nee rely,


                                     Origiaal Si^otd »y
                                     Martla I.
                                    Garcia  tL. Villiars
                                    Ciroctor
                                    eft ice  of solid v.aste
r ncloaures
cc:  u'ruce  ',,e
-------
        UNITED STATES ENVIRONMENTAL P*                9527.1986(01

                    WASHINGTON. O.C. 204*0
                          \||fj
                                                    AMOIMINOINCV MIVOMSI
Mr.  Philip  E.  Hoffman
House  of  Representatives
State  Capitol
Lansing/  Michigan   48909

Dear Mr.  Hoffman:

     Thank  you for  sharing  your  concerns  about  the  detonation
of a hazardous explosive  within  Waterloo  Township in your
May  15, 1986,  letter.   Lee  Thomas,  the  present  Administrator
of the Environmental Protection  Agency  (EPA), has asked me to
respond.

     In accordance  with our regulations (40 CFR $270.61),
EPA's  Region V office  issued an  "Emergency Permit"  to-the
Drug and  Laboratory Disposal Inc.  facility to detonate 50
pounds of hazardous explosives.  The permit was effective
from April  14  to May 14,  1986.   This permit was issued only
after the facility  had conducted an extensive search for
alternative methods of disposal.   Because there was no feasible
alternative, and due to the unstable nature of  the material,
EPA  decided that this  permit procedure  was the  proper course
of action.  Our regulations do not  require us to provide a
45-day public  notice when issuing  emergency permits.  However,
we are required to  provide  public notice.  Region V provided
this notice by making  public announcements through the local
newspaper and  radio station.

     In addition, you  raised a concern  about BPA's possible
violation of Waterloo  Township's ordinance 15.   In  issuing
any permit, EPA includes  a  clause  requiring that the permittee
obtain all State &nd local  approvals.   If the permittee failed
to do so* EPA  could take  an enforcement action  to address the
violation.  It is my understanding  that Region  V will discuss
this matter with the State  to determine if an enforcement
action is warranted.
-------
      IT  ,/OU 5K,OUM -,3V..  3"V  .! I • 1 C 1'-v^-l i  ,"J ^ £ (I 1. o;i <3 COI'CO Tn. 1 H ;  t'iS
      r,  rlcsso  c^'-icact  ^ic^-ir!  ."r^-:.1 OL-  rmc  -"r-uori V  ofr'icr  ; ->.
      --;o.   ':r. Tr-9u.-> cin  '••,-.• r •_•<.-.?-•>••. ^t  ( J i J )  J fi'^-c i 3o.

                                  ii nr^re ly ,
                                  J.  .-'inston  Porter
                                  Assistant  Administrator
bcc:'\Richard Traut?,  Ration .V
    J Hex^nd^r v^l^^/OSW^
       Cindy  Byr-oij),  OV/PE
-------
                                                        3527.1987(02)
  AUG 3  1987
Mr. Die Olsen, Sales Manager
Fenton Company, Inc.
1608 N. Beckley
Lancaster, Texas  75134

Dear Mr. Olsent

     Thank you for your letter of June 30, 1987, in which
you requested inforaation on the regulatory status of sludge
dehydration equipment which is part of a wastewater treatment
facility.

     Your understanding of the requirements contained in
40 CFR 270.1(c)(2)(v) is correct.  Sludge dehydration equipment
that is part of a wastewater treatment system is excluded froa
the need to obtain a RCRA permit provided the equipment meets
the definition of wastewatar treataent unit ae defined in .
40 CFA 260.10, and actually is used to evaporate water from
the sludge.

     It is important to note that the exclusion provided by
$270.l(c)(2)(v) does not apply to conventional incinerators.
Such devices are subject to Subpart O of Parts 264 or 265 even
when part of a wastewater system.

     I must caution you that various States hafe requirements
that are different from the Federal standards.  Under their own
authorities. States can establish requirements that are more
stringent than the Federal requirements.  Zn this instance, the
owner or operator is required to comply with the more restrictive
requirements.  Thus, I encourage you to contact an appropriate
State official to determine what the requirements will be for a
specific unit.
-------
      If you have any further questions regarding the Federal
 requirements, please contact Mary Cunninghan of my staff at
 (202) 332-7935.

                                         Sincerely,
bcc;
                                         Marcia E. Williaos
                                         Director
                                         Office of Solid Waste
 cc:  Mary Cunninghan
      Steven Silvennan, Esq.
R.
3.
S.
R.
h.
C.
L).
Holloway
Weddie
Hudzinski
Dellinger
hale
Garland
Per la
-------
                                                          9527.1988(03)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C.  20460
                                                 SOLO '.MS"
Mr. Phillip C. McGuire
Associate Director, Law Enforcement
Department of the Treasury
Bureau of Alcohol, Tobacco, and Firearms
Washington, DC 20226

Dear Mr. McGuire:

    This letter  is in response to the issues raised recently by
the Bureau of Alcohol, Tobacco, and Firearms (BATF) with respect
to compliance with the Resource Conservation and Recovery Act
(RCRA).  Specifically, your staff has requested EPA guidance for
two situations:   (1) when a BATF agent is called to a location
where there is an immediate safety threat, and  (2) when
explosives or explosive related materials that do not present an
immediate safety  threat are stored in BATF secured lockers for
analysis and possible use in law enforcement proceedings.

    The guidance  given below for these two situations is based on
the federal RCRA  program as administered by EPA pursuant to 40
CFR Parts 260-271.  In authorized States (which are 43 in
number), EPA has  delegated the hazardous waste program to the
States pursuant  to statutory provisions in RCRA.  Although each
authorized State  program must be consistent with and at  least as
stringent as the  Federal program, a State is free to be  more
stringent.  Hence, any guidance given below must be followed up
by a BATF analysis of any different provisions that an authorized
State may have chosen to enact.

l .  Explosives That Present an Immediate Safety Threat

    According to  our discussions, this scenario involves
identification by a trained BATF agent of explosives that create
an immediate safety threat, removal of those explosives  from the
original location to a safe area  (often a local law enforcement
agency's bomb disposal site or a nearby military  installation) ,
and immediate destruction, normally by detonation or open
burning.

    Under current RCRA regulations  (40 CFR Sections 264. Kg) (8),
265. 1 (e) ( 1) ( i ) ,  and 270 . 1 (c ) ( 3 ) ) , all activities  taken  in
-------
                               - 2 -
immediate response to a discharge of hazardous waste,  or  an  •
imminent and substantial threat of discharge of a hazardous
waste, are exempt from the RCRA permitting and substantive
requirements.  Since the explosives in question would  be
hazardous by virtue of their reactivity and ignitability,  any
BATF actions taken to eliminate the imminent and substantial
danger would qualify under this exemption.  If the response
actions involve transportation to a remote site for destruction,
then the transportation as well as the destruction would  be
exempt.  However, the transportation is exempt only to the extent
necessary to respond to the immediate threat.  Hence,  we  expect
the transportation would normally cover a relatively short
distance.

    Should there be any question about the exempt or nonexempt
status of the BATF action, the RCRA emergency permit regulations
(Section 270.61) can be used for destruction activities.   As
these regulations provide, an emergency RCRA permit can. be issued
by an EPA Regional Office or by an authorized State official via
telephone or in writing.  These permits may be issued when the
Region or State finds that an imminent and substantial
endangerment to human health or the environment exists, according
to the requirements of Section 270.61.  This permit can address
both treatment and storage of hazardous waste.   (Under RCRA, open
detonation or burning of explosives waste qualifies as thermal
treatment.)  If necessary, transportation can also be authorized
by a provisional identification number, obtainable by telephone.
To reiterate, however, no permit is necessary when a BATF agent
determines that an immediate safety threat exists.

2.  Explosives Material Storage Purina Analysis and Law
    Enforcement Proceedings

    When a hazardous material  (such as explosives and certain
types of explosives-related material) is discarded, it becomes a
hazardous waste and therefore subject to RCRA.  Although the
situation may vary, we believe that explosives and explosive
material become waste when the court  (or BATF) no longer has any
use for them (i.e., when no longer needed for evidence, referred
to as "judicial forfeiture" by your staff in our discussions).
When explosives are stored pending judicial proceedings,  they are
not subject to the hazardous waste regulations.  However, when
they are to be discarded, they become waste.  At that point, RCRA
requirements pertaining to waste generation, transportation, and
treatment, storage, and disposal  (40 CFR  Parts 260-271) become
applicable.
-------
    Under 40 CFR Section 262.11, generators of solid waste  must
determine if their wastes are hazardous.   "Generator" is defined
by person and by site.  Thus, for example, each of your storage
locker areas would be a generator site.   Except for generators
who meet the conditional exemption in Section 261.5, generators
of hazardous waste are subject to all applicable Sections of Part
262.  [In the case where a BATF field office generates less than
100 kilograms (kg) per month, Section 261.5 allows the disposal
of the explosive waste at a permitted or interim status hazardous
waste facility, or at a facility permitted, licensed or
registered by a State to manage municipal or industrial solid
waste.]  Among other requirements, generators of hazardous waste
must have EPA ID numbers (40 CFR Section 262.12).   Each BATF
field office must apply for an EPA ID number for each site at
which hazardous waste is generated in excess of 100 kilograms per
calendar month.  This is a simple process involving the submittal
of one short form for each generator site.  These fornrs can be
obtained from EPA Regional Offices or we at Headquarters will be
glad to supply them to you.

    we note that, under 40 CFR section 262.34, hazardous waste
may be stored in tanks or containers without a permit for up to
90 days.  So, even after a material becomes a waste  (i.e., an
intent to discard is present), the generator has 90 days to make
necessary arrangements for transportation, treatment/ or
disposal, according to applicable regulations in 40 CFR Section
262.34, and Parts 264, 265, 266, 268, and 270.  As a general
matter, we believe the Bureau should consider a policy that would
require removal of explosive material stored in BATF lockers
within 90 days from the time the material becomes a waste.
Otherwise, RCRA storage permits may be required.

    BATF may transport hazardous waste explosives themselves, or
may hire a transporter.  In either case, the transportation is
subject to the requirements in 40 CFR Parts 262 and  263.
Transportation of hazardous waste off the site of generation  is
subject to manifest requirements  (40 CFR Section 262.20).  The
generator must designate on the manifest a facility  that has  the
proper RCRA permit or interim status to receive the  waste.

    In general, destruction of explosive waste by open
detonation/open burning is thermal treatment that must be
conducted at a RCRA interim status or permitted facility in
compliance with Parts 264, 265, and 270.  In the event that the
destruction is being done under court order or under directions
from the U.S. Attorney's office, RCRA is not automatically
waived.  The Bureau should therefore locate facilities nearest to
its field offices that have the appropriate RCRA permits or
-------
interim status for open detonation/open burning of explosives-
wastes.  Some of the military facilities already used by the
Bureau may have the necessary permits or interim status, and
these facilities may accept BATF explosives wastes, under the
terms of their permit or under the provisions of Part 270,
Subpart G, without any special permission from EPA.    Other
facilities with RCRA permits or interim status could handle the
open detonation/open burning of BATF explosive materials via
permit modifications (Section 270.41-270.42) or changes during
interim status (Section 270.72).  In those cases where a permit
modification or change during interim status is needed by a
facility that agrees to manage BATF wastes, these must be
approved by the appropriate State agency (or EPA Regional office)
in advance of the initial receipt of the BATF wastes.

    Finally, we understand that stored explosives material
sometimes deteriorates to the point where a safety hazard
exists.  In this type of situation, the discussion on emergency
response activities in Section 1., above, would apply.

    I trust that this letter provides you with guidance helpful
to the Bureau's efforts to comply with RCRA requirements.  I
understand that my staff has provided BATF with a  list of
facilities that may have the appropriate permits or interim
status and a list of EPA Regional contacts for your field
offices.  If you need additional assistance, please do not
hesitate to call me or have your staff call Michael Petruska
(475-9888) .
                                  Sincerely,
                                  Sylvia/K'. Lowrance, Director
                                  Officre,bf Solid Waste
-------
                                   OSWER POLICY DIRECTIVE 19528.00-1
      I        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                          WASHINGTON, O.C. 20460
X
      25 NOV 87

                                                 SOLID WASTE AND E^ERCENCv BESPQNSf
    MEMORANDUM

    SUBJECT:   Interim Status Expansion to Add an Incinerator
                                            » i         N
    FROM:      Marcia Williams, Director
              Office of Solid Waste (WH-562

    TO:        Aiiyn M.  Davis, Director
              Hazardous Waste Management Division (6H)

         This is in response to your memo of October 22,  1987
    regarding a request from U.S.  Pollution Control Incorporated
    (USPCI)  to the State of Oklahoma for approval of an interim
    status  expansion to add an incinerator at its Lone Mountain,
    Oklahoma facility.   You requested an opinion on the question of
    whether an incinerator may be added to a facility as a change in
    interim status under the authority of 40 CFR 270.72(c).

         Section 270.72(c) allows EPA or an authorized State to
    approve the addition of a new unit at an interim status facility
    if the  change is determined to be necessary to comply with a
    Federal,  State, or local requirement.  On its face, this
    provision authorizes the addition of an incinerator as a change
    in interim status;  however, section 270.72 allows the Director
    to exercise discretion in approving or disapproving changes
    under that section.  Generally, we have significant concerns
    about new incinerators being added as changes in interim status
    without the benefits of a trial burn and public participation.
    While we  do not believe that the Director may be arbitrary  in
    deciding  to approve or disapprove a change in interim status, we
    believe that it is important to consider protection of human
    health  and the environment and the rights of the public, and
    that it ia generally unwise to allow operation of a new
    incinerator without a trial burn and opportunity for public
    comment.

        As an authorized State, Oklahoma may implement its own
    hazardous waste program and interpret its own regulations.
    While the State of Oklahoma has the authority under section
    270.72(c) to allow addition of this incinerator as a change in
    interim status, we believe that the preferable approach would be
    to include the proposed incinerator in the ongoing permit
    process for USPCI.   Since the facility's permit is scheduled for
    issuance  in 1988, the incinerator activity could be pursued as


                                                        \
-------
                                 OSWER POLICY  DIRECTIVE  *952S.OO-i
a subsequent "permit modification.  Although the proposed
incinerator would not be subject to the 1989 permitting
deadline for incinerators, I would recommend that the
Regional Office work closely with the State to establish a
priority for developing the incinerator portion of the
permit.

     If you have any questions about this issue, please
contact Frank McAlister (FTS 382-2223) or Barbara Foster
(FTS 382-4751) of the Permits Branch.
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                                         OSWER  POLICY  DIRECTIVE  *952S.OO-1
*
             UNITED STATES ENVIRONMENTAL  PROTECTION AGENCY
                                       REGION vi
                           ALLIED SANK TOWER AT FOUNTAIN PLACE
                                   1443 BOSS AVENUE
                                  DALLAS. TEXAS 75202
                                   OCTOBER  22,  1987
     MEMORANDUM

     SUBJECT:   Interim Status Expansion to Add an Incinerator
     FROM:      Allyn M.  Davis,  Director
               Hazardous Waste  Management Division (6H)

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

         Attached is a  recent  request from U.S.  Pollution Control Incorporated
     (USPCI)  to the State of Oklahoma for approval of an interim status expansion
     to add an incinerator at its Lone Mountain,  Oklahoma facility.   The Oklahoma
     State  Department of Health (OSDH)  requested  EPA's opinion on this issue.
     Since  this appears  to be an issue of national importance and precedence,
     Region VI requests  your opinion on USPCI 's request, as well as  the issue
     in general.

         USPCT wishes to add an incinerator to its Lone Mountain facility as an
     expansion under interim status.  As stated in the attached argument, USPCI
     claims this expansion is necessary to satisfy requirements of the land
     disposal restrictions.  The August 14, 1987, preamble to the proposed
     changes to 40 CFR 270 appears, to some extent, to support this  position.

         However, such  a change would be a drastic departure from USPCI 's historical
     waste  disposal practices at the Lone Mountain facility.  USPCI  has never had
     an incinerator at the facility/ and has not  included a planned incinerator in
     its  Part B application. Allowing such an expansion under interim status
     would  allow USPCI to construct and to operate a hazardous waste incinerator
     with no permit, no  public  participation,  and no trial burn.  In fact, such
     an incinerator would not appear to be subject to the 1989 permitting deadline.
     (The land disposal  permit  for USPCI is expected to be public noticed in
     July 1988 with final determination in the fall of 1988.)

         The Region views this as a vitally important issue, since there are
     other  oonmercial disposal  facilities which would like to avoid the permitting
     process by adding interim  status incinerators.  The Region is not aware of
     any  cases in which  such an expansion at a commercial facility has been approved
     in the past.

         Your immediate attention to this issue is requested since OSDH must
     respond to USPCI soon.  If you need further  information, please contact me,
     or have your staff  contact Bill Honker at FTS-255-6785.

     Attachment
-------
                                        OSWER POLICY DIRECTIVE  19528.OC-1
 Jex»n K. L»«vttt. M.O.
                 -orr a z^ff-
                 •**;*• i.-:t: vnf
                 J.-+ 'a- V. :•
       OKLAHOMA STATE
  Of ffA/TTMENT OP HEA1TH
          P.O. BOX S3S51
         1000 N.E. TENTH
OKLAHOMA CITY. OK 73152
 Seocember 22,  1987
Mr.  Sam Seeker,  P.E. ,  Chief
EPA  Region VI
14^5  Ross  Avenue
Dallas,  TX 75202-2733

Dear  Sam:
Accached  is  an applicacion for a proposed modification at the USPCI Lone
"ouncain  facility.   I need your assistance in evaluating this proposal.

In  reading  the cover letter,  the argument offered sounds reasonable.
Please  advise  me  of EPA's position.

In  the  interest of  responding promptly to this issue, I have taken the
liberty of  prescheduling a conference call for Thursday, September 24 at
2:00 p.m.,  at  which time I will initiate the call to your office.  If the
time is inconvenient, please  let me know.

Thank you for  your  assistance.
Sincerely,
Robert A. Rabatin*
Programs Manager
Waste Management  Service

RAR/lp
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                                          OSWEH POLICY DIRECTIVE 49528.00-1

                   U.S.                                 K t l t I V k D
                   POLLUTION
                   CONTROL, INC.                    S^P :'?  '&
                                    epteinber  21, 1957
      Dr.  Dwain Farley
      Oiief of Waste Management Services
      Oklahoma State Department of Health
      P. 0. Box 53551
      Oklahoma City, Oklahoma  73152

      Subject:  Changes Under  Interim Status
                Incinerator  at Lone Mountain Facility

      Dear Dr. Farley:

      U. S. Pollution  Control, Inc.  requests that  the  Oklahoma  State
      Department  of  Health  approve  the  revision  to  the  Part  A
      application for the Lone Mountain Facility which would allow the
      installation of  an incinerator.   Authority for this  action is
      found under 40 CFR 270.72(c):

           "...additional processes may be added if  the  owner or
           operator  submits  a  revised  Part A application  prior to
           such change  (along  with a  justification  e^laining the
           need  for the  change)   and  the  Director  approves  the
           change because;

           (2)   It is necessary to comply with Federal regulations
                (including interim status  standards  at 40 CFR Part
                265)  or State  or Local  laws."

      The  land disposal  restrictions   (40  CFR 268)  for  solvent wastes
      published  in   the November 7,  1986  Federal  Register   (pages
      40572-40654)  require  the incineration of  F001-5  solvent wastes
      prior to landfill disposal.  Lone Mountain Facility received in
      excess of 2000 tons of F001 through F005 wastes in calendar year
      1986.   Allowing  the  adjustment  of  1986 volumes  to reflect the
      land  restriction  applicability  in  November  and  December,
      maintenance,  startup,  debugging/  and waste volume  variability,
      U.  S.  Pollution  Control,  Inc.  has  chosen a  small  2-ton per
      hour incinerator as the necessary unit for compliance with the
      land disposal  restriction for solvent wastes F001-F005.

      The  State's authority to approve this change  was  confirmed by
      telephone with Mr.  Matt  Hale  who is  the Chief  of the Permits
      Branch,  Office of  Solid Waste,  U.S.  EPA Headquarters  (telephone
      202-382-4740).   The approach was also discussed  at length  with
2000 Classen Center • Suite 400 South • Oklahoma City, OK 73106-6078 • 405/528-8371
-------
                                     OSWER
POLICY DIRECTIVE #9523.00-1
 Letter 'o Dr.  Dwam Farley
 Septfcsnber 21,  19t7
 Page 2
 and confirrned by Mr.  Lee Haze of  L'.S.  EPA -lecicr. '.I (-*le=rcre
 204-655-6750).

 Attached" to  this  letter is  a  booklet titled,  "Questions  and
 Answers   on   land   Disposal   Pestrictior.s  for   Solvents  and
 Dioxms"    (EPA/530-SW-87-020   May,   1987).      The  following
 rhetorical  question  is  raised  and answered on page  31.

 Q:   Can  a  new treatment process be employed under  interim
     status?
A:   Yes,  a new  treatment process can be  introduced at an
     interim  status facility  as long as  the conditions of
     Section  270.72 are met.   Prior  to such  change,  the
     facility  must submit a  revised  Part A application and
     a  justification  for  the change  to EPA for approval.
     EPA   may   approve  the  change  if  the  facility  has
     demonstrated  that  it  is  necessary  to  comply  with
     Federal,  State,  or local  requirements.   However,  the
     extent  of  changes to  an  interim status  facility is
     limited  in  that  capital  expenditures  may  not exceed
     50% of the cost of  a  new  facility.

The cost of this  small incinerator will not exceed three million
dollars  ($3,000,000).   The book value  of Lone Mountain facility
including   depreciation   is  over  thirteen   million   dollars
($13,000,0000).   Replacement value for Lone Mountain considering
minimum technology requirements for units 1  through 8 is far in
excess of original  cost.

USPCI does not anticipate that the  final Part  B permitting of
this incinerator will  interfere with permitting  of the rest of
the facility.   The permitting of  individual units of a facility
is allowed under  40 CFR  270.l(c)(4), which states:

     (4)  Permits for less  than  an  entire  facility.   EPA
          may  issue or deny a permit  for one or more units
          at  a facility without  simultaneously issuing or
          denying a  permit  to all  of the units  at the
          facility.    The interim status  of any unit for
          which  a permit  has  not been  issued or denied is
          not  affected  by  the issuance  or  denial of  a
          permit  to any  other  unit at the facility.

Accordingly,   USPCI   anticipates  that  the   Part   B   permit
application will be called for shortly after  the approval  for
the change in  interim status.   Allowing  180  days for preparation
of  the  application would leave more than  eighteen  (18)  months
for permit review prior  to  the  statutory  deadline for  permit
issuance of incinerators by November  1989.
-------
                                       OSWER  POLICY DIRECTIVE 19523.00-
 Letter to 3r. Dwair. fariey
 September 21, 1987
 Page 3
 Sane confusion  ray rave been  raised by  a  crcpcsed rule  char.ce
 published  in  the  Federal  Register  or. August  14,  1987.    That
 article  proposed  eliminating   trie   currer.t.ly   effective   fiftv
 percent  (50»)   reconstruction  rule  for  interim status  chances
 involving  tanks  and  containers.    That  proposal  should  net 'be
 confused   with   eliminating    interim   status   changes   for
 incinerators  which   is   not   proposed.     The    fifty   (50%)
 reconstruction  rule   governing   treatment processes  other  than
 tanks will remain intact under the proposal.

 In way  of further buttressing  of  our request,  the August  14,
 1987 Federal  Register article  observed on  page 30572  that  the
 current regulations

      "provide  inportant  flexibility  in  allowing changes  in
      or  additions to processes  necessary  to  ccnply  with
      Federal  or  other  requirements,  such  as  	   land
      disposal  restrictions  	"

 A copy  of that article is attached for your reference.

 We need  to make  the decision  to proceed  on  this project  by
 September  30,  1987 in  order to secure  equipment and  adequate
 professional  staffing.  Your expeditious  handling  of this  matter
 is appreciated.

                               Sincerely,

                               U.  S.  POLLUTION CO.TROL,  INC.
                                   Jackson
                                  sident
KJ/cam

AttachMnt
-------
                                                                   3528.1982(0
        SUBJECT:   Changes  to  Hazardous  Waste  aana^eoent  Facilities  Uurlnj
                     Interim  Status;  Current  *nd  Proposed  Peculations
                  John h.  Skinner
                  Director,  State  Programs  and
                     Resource  Recovery  Division  (Wd-563)

                  Ste-paea  K. Wesitersus
                  Director,  Air,  Toxic,  and
                     Hazardous  nacerialu Division
                     ' --  III
           AC  our  meeting  on May 19,  1^42  you asked fur a scacus  report  oc
        Chu regulation*  eOvernlnu   change*   co  hazardous   vasce   uanageueac
        (UW»H) facilities duriag  incerin scacut*  In  reaponse,  I au  outlining
        wu«tc che  regulMCioaa  currently require; what  changes  we  agreed  cu
        proposa under  che  n«ccleaeoc agreeaeot  in  Che  NRDC  lawsuit,  (.' • r«.
 32^.                 (a)  the  owner  or operator  submits  a  revised  Fare  A
 a v "C   pernit application  prior to  the change, along  witu a  Justification
 ^ 2 S   explaining  che need for  the  change;  and
 «O 0 30                                              ••
 -~ Z "2                 (b)  the L'i. *-•«*• approves che  change  because:
^.  '3
-------
                    (i) of  a  lack  of  availaole  treatment,  storage,
or cibposal capacity ac ocn^r u«.i facilit'es;

                    (11) lc  1*  necessary  to   prevent  a  c hrest  to
liuuan health  or  toe environment  because  of aa  eaer^eacy  situation;
o r

                    (ill) 1C  Is  aecets.ry  to   c o ti p i /  w i -.:-.  r e u a i u i
regulations (including Face 2(0) or State or local laws.

     3.  Addition*  of  new  processes  oc  changes  in  proctdsej  _iay
occur only if:

          («) the  owner  or operator subaics a  revised  Pare  A ,-cr = it
application prior  to  the change  and  a  just if Icac ion  ex^laiain-  t.ic
need tor the  change; and

          (b) Che Director approves Che chauge oecause:
         ' >
               (i) 1C  if  accessary  Co   prevent  a  threat  co  huaan
health and  che  environoent  because  of   an  energency  situation;  or

               (11) it  i*  n«c««»ary co  coaply   with  Federal  regul*-
cions (including Part 265) or Scace or local laws*

     4.  Changes  la  ehe  ownership  or  operational  control  of  a
facility ma-y  be oade if:

          (a) a  revised  Part   A is  submitted  40  days  before  cne
change; and

          (b) the  new  owner or operator  can  denonntrate coopliance
with che financial reaponeibillty requlreaent*.

     In addition,  there  is an  overriding reconstruction  cost Halt.
Section I22.23(c}(5)  states  that no change  shall be  oade  co  an faWM
racllity which  anounts  to  reconstruction  of   che  facility,  i.e.,
when che  capical   investaent  in  the  changes  exceeds  tifty  percenc
of the  capital  cost   of  a  comparable  entirely  new  HUM  facility.

Changes to 1122.23 agreed  to under  the Settlement a&reeuenc

     Section  122.23 was challenged  by the  litigants  in  HRDC v» EPA
as being  too  restrictive*   Tne   Agency negotiated  and  signed  a
settlcoe.t agreeaent in Noveober, 1981, which requires EPA co
propose euendaents  to  this  section*  aaong  others*  -Jc.-i« important
to note .that  we  hare  not  yet   propose*  ch««*>  cuanjas.  Furthermore,
any actual  change  in  the  re£ui--*"~  would   have  to  follow   such
prooo4*l end's r."bi«- —«n»«nr period.
-------
 :' ii e auendnents  we  agreed  c o  propose  Co  5122.23 would  allow  nore
 cnances during  interim  status  than  tnc  current  regulation*  allow.
 As a 122.23 appears ia ch« sectleaent  agreunent:

     1.  New  hazardous  wastes  uay DC  aaded  oy  submitting  a  revised
 tfd re A  permit application  prior  f> adding the new wast*.  (.NO  ciian^e
 co this section is proposed.)

     2.  The design capacity of processes nay be increased:

          (a) up  Co  101  if cue owner  or operator submits  a  revised
 I'-irt A  perait application prior Co caking ch« change;

          (b) iron 10-5CU if the  owner or  operator  submits  a  revised
 r'arc A  permit application  ac  lease  180 days before  Increasing  the
 capacity;

          (c) any  amount  if  Che process  increased  is  »torage  or
 creacaenc ia  containers  or  tanks,   if  a  revised  fare  A  permit
 applicacioo is  submitted  at  least  60  days before  increasing  the
 capacity*

          (d) any  amount  if ic  isneceeaary  to  comply  with Federal,
 State, or local  laws or regulations  (including  Parts  264  and 2o5).

     3.  New processes aay be added if:

          (a) the  owner  or operator suboits  a  revised Part  A prior
 to the change; and

          (b) (i)  the  Director approves  the  addition  oecauso  ic  is
 necessary to  comply with  federal,  State, or local  laws  or  regula-
 tions (including Parts 264 and 265);  or

              (ii) the  addition   or  change  is  storage  or  treatment
 in containers or tanks.

     4.  Units aay be replaced if:

          (a) ic  is  replacement   of  tanks  >r containers  for  storage
or treatment, or  unita  replaced  at exactly the  saoe location, with-
 out submitting a revised Part A;

          (b) for any other process, or  units replaced  at a
different location,  a  revised  Part . A  is •ub«if«d  60  days  bwfort
 <*.onstruction begins*

     **•  The  section  on  changes in  the  ownership  or  operational
control of a facility has not bean changed.


                                  -3-
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     o.  The -overriding  reconstruction  cost liult has  been  elinina-
C eu i anJ

     7.  A provision  has  been added that all  advance  notice periods
cay be shortened for good cause shown.

Kenegotiation or the settlenent agreenent

     Sine* signing the settlement  agreement  in Hoveuber,  1^61,  there
have jeen some  changes  ia £PA's ability  to  laaue  pernits.   £PA will
be ia a  position  to  issue peroits to existing  land  uisposal  facili-
ties s-i*  months  aftar promulgation  of  the  Part  264  standards.   In
addition, the  Agency  will  have  tha   ability  to  peroit   existing
incinerators when  the  technical standards  for  existing incinerators
are reevaluated*  Eoth of these developments are iouinent  and
encourage a  change  ia  tha  settlement  a&reeaent  on  this  issue.

     We have  reopened aettleeent  discussions  on  this issue.   The
position we currently favor would allow increases in design
capacity up  to  1UZ  of  toe  capacity of  a  process  as reflected  in
the facility's initial Part A*   Any  increase above IwX would require
a permit.   All  other  provisions  of  the proposal  specified  in  the
•ettien«nt a^recaant would reoaln the sau*.

     1 realize that  the  existing  regulations  are difficult  to  work
with.  Since  we  have  not  yet   cede  any amendments  to $122.23,  wo
cannot reconmend  aa  a general  setter   that  you allow  changes  which
would not be  allowed  under  the current  regulations*  In  the  aemo-
rana urn fro* Christopher  Capper  of November  20, lytfl  on the settle-
sent of the RCRA-related  issues in Che  NRDC v. EPA lawsuit, however,
we suggested that the Agency  nay exerciae ita enforcement  discretion
la dealing  with  aituationa which  aay  be handled  differently should
EPA prooulgate  the  amendments.   All   aituationa  where  eaforceoent
discretion la  considered  ahould  be  handled  ac headquarters  by  the
Office of Legal  and  Enforcement  Counsel*   for  further  .nforaatioa
concerning the  uee  of  enforcement  discretion in  individual  caaes,
call iUthy  Suomerlee at  382-J110.   If  you have  further  questions
concerning 40  CPU  1122.23 or   Che  settlement  of  this  iaaue  call
ueborah Uolpe ac 3«z-4754.

cc:  Kathy Summerlee
     Dot* Darrah
     Deborah Wolpe
     Directors, Air  4 Hazardoua  Materials   Division,  tegions  I
                             -4-
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                                                    9528.1982 (02)


July 20, 1982


Honorable Barbara A. Mikulski
House of Representatives
Washington, D.C.   20515


Dear Ms. Mikulski:

     Administrator Anne Gorsuch appreciates your June 22 letter
requesting clarification of the requirements under the Resource
Conservation and Recovery Act (RCRA)  for expansion of existing
hazardous waste management facilities.   The Administrator has
asked me to reply.

     Specifically, you asked for an interpretation of the
provisions of 40 CFR §122.23(c)(5).  That section provides that
"In no event shall changes be made to an HWM facility during
interim status which amount to reconstruction of the facility.
Reconstruction occurs when the capital investment in the changes
exceeds fifty percent of the capital cost of a comparable
entirely new HWM facility" (emphasis added).

     Your questions and our responses are:

1.   Question;  If a State-owned site is expanding,  would the
     cost computations for a comparable new facility assume no
     land-purchase cost since a comparable new facility would
     also presumably be built on a State-owned site?

     Response;  The cost computations for a comparable entirely
     new HWM facility would include the fair market value of the
     land necessary for such a facility, whether or not the
     expanding site is State-owned.  Land has value whether or
     not it is State-owned.  Therefore, EPA would use the fair
     market value of necessary land in its cost computations.

2.   Question:  If a site is expanded,  would construction of off-
     site access to a freeway concurrent with the expansion be
     included in the capital costs of expansion?

     Response;  No.  Off-site access to a freeway is not part of
     the hazardous waste management (HWM) facility,  as defined in
     40 CFR §122.3 of the regulations.   A HWM facility means all
     contiguous land, and structures,  other appurtenances, and
     improvements on the land, used for treating, storing, or
     disposing of "hazardous waste .  ;  ."  (emphasis added).  Off-
     site access roads would not be included, therefore, in the
     capital cost of the changes to the facility.
        This has been retyped from the original document.
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                               -2-
3.   Question;  If a site is expanded more than once,  would the
     cumulative costs of expansions since November 19, 1981, be
     used for a determination of what constitutes a
     reconstruction under 40 CFR §122.23(c)(5)?

     Response;  Yes.  The cumulative costs of capital investments
     in the changes since November 19, 1981,  are used to
     determine what constitutes a reconstruction.  Any other
     interpretation would allow facilities to spread out the
     costs of expansion over several different changes at
     different times, defeating the purpose of this regulation.

4.   Question;  If a site is to be considered for expansion, what
     criteria will be applied by EPA in determining the
     relationship of the capital costs of a comparable facility
     on the following matters:  acquisition of land,  acquisition
     of construction materials, transportation of materials and
     structuring of the site, construction of groundwater
     monitoring and control features, and construction of access
     to the site?

     Response;  The capital cost of a "comparable entirely new
     HWM facility" is the cost in today's dollars of building a
     hypothetical facility comparable to the facility which
     qualified for interim status in both area and capacity, but
     using current state-of-the-art technology.

          Acquisition of land;  The fair market value of
          necessary land would be included in the cost of a
          comparable entirely new facility.

          Acquisition of construction materials;  The fair market
          value would be included.

          Transportation of materials;  These costs would be
          included in the cost of acquiring construction
          materials.

          Structuring of the site;  The construction costs would
          be included.

          Construction of groundwater monitoring and control
          features:  The costs of such features would be
          included.

          Construction of access to the site;  These costs would
          not be included in the cost of a comparable facility,
          for the reasons stated in the Response to Question 2.
        This has been retyped from the original document.
-------
                               -3-

5.   Question;  If a site is to be considered for expansion, what
     criteria will be applied by EPA in determining the
     relationship of the capital costs of a comparable facility
     in the relocation of adjacent communities including selling
     of homes and adjacent properties; moving expenses for both
     residents and community institutions, and repurchase of new
     homes?

     Response;  The calculation of costs for a comparable,
     entirely new facility would not include the cost of
     relocating the residents of adjacent communities.  As
     explained before, "facility" means the land, etc.,  used for
     treating, storing, or disposing of hazardous waste.
     Adjacent communities are not part of an HWM facility.

6.   Question;  Under the provisions of 40 CFR §122.23(c)(5),
     what alternatives must be considered for purposes of
     establishing that no alternatives to the proposed expansion
     exist?  Must any of the following be considered:
     incineration; shipment to other facilities in the region or
     the nation; recycling programs to promote at-source
     recovery; some combination of these or other alternatives?

     Response:  EPA may approve requests for increasing the
     design capacity of existing facilities because of a lack of
     available treatment, storage, or disposal capacity at other
     hazardous waste management facilities.  This determination
     is made by the EPA Regions on a case-by-case basis.  The
     Agency would consider all of the above-mentioned factors in
     evaluating the technical feasibility and cost constraints of
     the alternatives available within the time that the capacity
     is needed.  EPA would explore issues such as:  How far are
     similar volumes of waste shipped?  Would the additional cost
     of shipment to an alternative facility be so great that it
     would not be practical or reasonable to do so?  Does the
     waste require specially designed vehicles, e.g.. is the
     waste extremely flammable or dangerous?  Would at-source
     recovery be feasible and practical within the time that the
     additional capacity is needed?  Is incineration or alternate
     treatment at other facilities technically or economically
     feasible?

     You have also requested information on any applications for
the expansion of existing hazardous waste sites which are
pending, or have been approved or rejected by EPA, under the
provisions of 40 CFR §122.23(c).  As mentioned earlier,  these
decisions are made at the Regional level.  We are collecting this
information from our Regional Offices and will forward the
results to you.
        This has been retyped from the original document.
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                               -4-

     In addition, you have requested information on any lawsuits
brought under the provisions of §122.23(c).  There have been no
lawsuits challenging the use of §122.23(c) in specific
circumstances.  There has been a generic challenge to the
provisions of §122.23(c).  In NRDC v. EPA, No. 80-1607 and
consolidated cases (D.C. Cir., filed June 2, 1980), several
industry associations and other groups challenged this provision
as too restrictive.  EPA entered into a settlement agreement in
which the Agency promised to propose some changes to §122.23.
EPA recently reopened settlement discussions on §122.23(c) with
the petitioners and,  to date, has not issued a proposal.

     We appreciate your interest in these matters, and I hope
this information will be helpful to you.
                                   Sincerely yours,
                                   Rita M. Lavelle
                                   Assistant Administrator
        This has been retyped from the original document.
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                                                        9528.1983(01)





                     RCRA/SUPERFUND  HOTLINE  MONTHLY SUMMARY

                                        MARCH 83
2,   Question!      An interim status facility wishes to arid • new haiardcus wast*
                   management unit.  It this new unit subject to the 264.18 seismic
                   standards if  tht unit can be added according to 122.23(c)
                   (3) and (5)7   It the new unit abject to 2*4.IP if the owner/
                   operator has  exceeded reconstruction coots and has to submit a
                   full pewit application for the unit?

    Answer*        (1) Zf the change can be made during interim •tatu», the xntt is
                   not subject to the seismic standards*  The definition of existing
                   facility is satisfied, and a facility can have several unit*.
                   (2) Part 264.IB applies to new facilities, and this unit is still
                   part of an existing facility.

                   Souroet    David Pagan and David Susvian
                   nesaarchi  Irene Homer
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                                                                9528.1983(03)


              RCRA/SUPERFUND HOTLINE SUMMARIES


                          SEPTEMBER  83
One comoany  Ceases a site and has interim status to store hazardous
waste in  containers at that site.  The operator has submitted a
closure plan to the Regional Administrator but the plan has not
been approved.  Can the owner of the  site lease the property to
someone else for their use prior to certification of closure?

    Yes,  the site can be used by the  second lease* prior to certification
    of closure as long as the owner,  current operator, or original
    operator assumes responsibility for carrying-out closure.

        Source:  Carole Aasheles and  Oov Weltiun
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                                               9528.1984(01)





                     PERMIT POLICY Q & A REPORT

     IMPROVEMENTS TO SURFACE IMPOUNDMENTS UNDER INTERIM STATUS

                        SEPTEMBER  10,  1984
4.  Ou
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                                                                 9528.1985(01
            RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                             DECEMBER  845
An interim status facility has  a surface  inpourtinent for storing a hazardous
waste.  This facility wants to  build  another storage surface impoundment for
a new product line which will produce a hazardous waste that was not designated
on the facility's Part A application.  Would building such a storage surface
impoundnent for accepting a generated hazardous waste new to the facility be
considered, an increase in design capacity (S270.72(b)) or a process change
(S270.72(c))7

    Adding a new storage surface impoundment would be an increase in design
    capacity.  This would not be considered a process change since the process
    is not changing; the new unit is  also a storage surface impoundment
    (designated S04 on a Part A). An increase in design capacity requires the
    owner/operator to submit a  revised Part A application, which includes a
    justification for the change, and to  obtain approval from the Regional
    Administrator or State Director  (S270.72(b)).  Also, the owner/operator
    must cotiply with S270.72(e)  concerning reconstruction of the facility.

    Source:    Debbie wolpe (202) 382-4754
    Research:  Tom Gainer
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                                                                    9528.1985(03)
               RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                SEPTEMBER 85
Loss of Interim Status

4.  The 1984 HSVA Aaenc&ents require that interim status land disposal  facilities
    vish to continue operation after November 8,  1985,  oust submit  Part B applicat
    and certify conpliance with groundwacer monitoring  and financial  responsibility
    requirements by Movemoar 8, 1985.  Which types ot  facilities  art  required  to car-...
    that they are in compliance with all applicable groundwater monitoring and financial
    responsility requirements?  Is there a specific form for certifying compliance?

       In the September 25,  198S Federal Register (50 J* 38947),  the  Agency  interprets
       the tern "land disposal facility* to encompassj   landfills;  land treacnent
       units;  surface unpoundnents for disposal,  treatntent or storage;  waste storage;
       waste piles;  and Class I hazardous waste underground injection wells.

       On July 15,  1985,  $270.73 was changed to reflect tne certification requirements
       of the  HSH& Anendnents.  The certification should be submitted in addition to
       and not as part of the Part 8 application.   The  certification  statement was
       published in  the September 25, 1985 Federal Register (50 FR  38949).  The certi-
       fication requires that tne facility be in  ccopliance with  all  groundwater
       nonitoring and financial responsibility requirenents of 40 CFR Parts  265 Subparts
       P and H or all State  ground-water monitoring and financial responsiblity require
       raents which are anaiagcus to Part 265 as part of the State's authorized hazardous
       waste program under section 3006 of PCRA.   Copies of a facility's certification
       and Part B or State final operating permit application most  be submitted to both
       the EPA Regional office and the State in which tne facility  is located.   Facilitie
       in a State with a federally run RCRA prgram need only submit these documents to
       the Region.

       Source:   JacXie Tenusak (202) 475-8729
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                                                    9528.1985(04)
             RCRA/SDPERFUND HOTLINE MONTHLY SUMMARY

                           OCTOBER 85
7.   Changes During Interim Status

     A hazardous waste storage facility operating under RCRA
     interim status standards (40 CFR 265)  undergoes a corporate
     reorganization in which the original company becomes a
     parent holding company with five subsidiaries.   There is no
     change in ownership or operation of the facility.  In
     effect, the company changes in name only.   Must the
     owner/operator notify the U.S. EPA of the change?  If so,
     what procedures should the owner/operator follow?

          40 CFR 270.72 and 270.10 address the changes during
          interim status which require the submission of a
          revised Part A permit application.  Because name
          changes are not included under these sections, the
          facility would not need to submit a revised Part A in
          this situation.  Rather, the facility should notify the
          Administrator or Director of the clerical  change in the
          permit application using any reasonable method.  For
          example, the owner/operator could send a letter to the
          Regional Administrator to make the appropriate
          correction on the Part A application.  Note that if the
          owner/operator name change involves a facility located
          in a State that has interim or final authorization to
          manage the hazardous waste program in lieu of the
          Federal RCRA program,  the owner/operator should contact
          the State on this issue.  The State program authorized
          by U.S. EPA may include additional requirements that
          are stricter or broader than those of the Federal
          program (e.g., the State may require submission of a
          revised Part A application).

          Source:  Carrie Wehling (202) 475-8070
        This has jbeen retyped from the original document.
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                                          9528.1985(09)
»ir. Robert D. Chesler
Lowenstein, Sandier/ Brochin, Kohl,
   Pisher, BoyIan  ft Heanor
65 Livingston Avenue
Roseland, New Jersey  07068

Dear Mr. Chesler:

     Thank you for your  letter of November IS, 1985 regarding
storage and treatment facilities and the Loss of Interim Status
Provision.  While the essence of your letter is correct, there
are a few misunderstandings I would like to clarify.

     Your letter  states  that storage and treatment facilities
would not lose their Part A interim status if they lost their
sudden and accidental coverage and if those facilities could
demonstrate that  they were making and continued to maJie good
faith effort* to purchase such insurance coverage.  It le correct
that the Loss of  Interim Status provision in $300S(e)(2) of the
Solid Naste Disposal Act, as amended by the Resource Conservation
and Recovery Act, as amended, applies only to land disposal
facilities.  Generally,  it does not apply to storage and treatment
facilities.  However, EPA published a notice of implementation
and enforcement policy regarding this provision on September 25,
1985.  The notice states:

     For the purpose of section 3005(e), the Agency interprets
     the term 'land disposal facilities" to encompass the
     following types of facilities! landfills, land treatment
     units, surface Impoundments for disposal, treatment, or
     storage; waste piles? and Class I hasardous waste
     underground  Injection wells.

All such facilities which did not certify compliance on November 8,
1985, with financial responsibility requirements (among other
aspects) hav« lost interim status.

     A distinct issue from loss of Interim status is the continuing
obligation of all interim status treatment, storage, and disposal
facilities to comply with the RCRA insurance requirements.  BPA's
Enforcement Guidance for a Constrained Insurance Market, issued
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on April  12, 1985, ata'ted that EPA would not enforce againat
those who made good faith effort* to comply with  the inaurance
requirements.  However, that notice, by ita terms, waa  in  effect
only until Mombtr 8, 198S.

     Your letter alao atatea that loaa of  audden  and accidental
inaurance would not prevent a treatment and storage facility  from
being granted "final authorisation".   It goea on  to aay  that  in
such a situation, EPA can approve "final authorisation*  and
place the facility on a achedule of compliance  for the  inaurance
requirements.  I am assuming that when you uae  the tern  'final
authorization" you mean the issuance of a  Part  B  permit.
Compliance with the financial regulations  is required before  a
Part B permit can be issued.  The Agency has not  yet developed
its policy on implementing these requirements for facilities
seeking a permit.  For information regarding the  status  of this
policy, you may wish to contact David  Pagan of  the Permits Branch
on 382-4457.

     I hope this clarifies your understanding of  the Loss  of
Interim Status Provision regarding atorage and  treatment facilities

                                    Sincerely,
                                    Carole J. Anshelee
                                    Manager, Financial  Responsibility
                                      Program (WH-562B)
cc: Dave Pagan (OSW)
    Jackie Tenuaak  (OWPE)
    Joe Preedaan (OGC)
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                                                                       9528.1985(11)
                RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                 DECEMBER  85


Burning and Blending and Interim Status

7.   A company blends listed hazardous wastes (40 CFR Sucparts  C  anc  DI  anc .-vaixe-s
    the oiends-as-hazarcous waste fuel.  The company is neither  tne  generator  -,cr
    the burner of  the nazaroous waste derived fuel.   The operator of a  cement  
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                                                    9528.1986(01)
Susan Lubick
Room 2419
Rayburn House Office Building
Washington, D.C.  20515

Dear Ms. Lubick:

     On October 28, 1985, you met with Clem Rastatter of my staff
to discuss the CECOS International site in Niagara Falls, New
York.  As a result of the meeting, you requested the following
additional information concerning:  (1) administrative
requirements and location standards applicable to the
construction of the new Cell #6 at the CECOS facility; and (2)
applicability of the "omnibus provision" of the Hazardous and
Solid Waste Amendments of 1984 (HSWA)  to the expansion of the
facility.

     As you know, the  CECOS facility is currently operating
under interim status standards.  Facilities operating under
interim status are normally required to submit a revised Part A
application and meet the requirements of 40 CFR 270.72 for any
change during interim status.  Part 270.72 requires EPA's
approval for:   (1) any increase in design capacity not previously
identified in the Part A of the permit application, and  (2) any
process change or the addition of processes not currently
identified in the Part A.  However, the construction of Cell #6
was detailed in CECOS1 original Part A application.  Therefore,
the construction of Cell #6 is not considered to be a change
under §270.72, and the facility can proceed with the construction
of Cell #6 without any permitting action by EPA.  The facility
must also install in Cell #6 at least two liners and a leachate
collection system above and between the liners as required by
Section 3004(o) of RCRA.  The design and installation of this
liner system is not required to be reviewed or approved by EPA
(or the State) before construction has begun.  However, design
specifications and other information on this system have been
voluntarily submitted to EPA and the State of New York and are
currently under review.

     EPA Region II and the State of New York are jointly
reviewing CECOS' Part B permit application for the entire
landfill facility.  In their review, EPA and the State will apply
draft criteria EPA has developed for evaluating acceptable
locations for hazardous waste land treatment storage and disposal
facilities.  Those criteria include:

     (1)  the inherent geologic, hydrologic, and pedologic
          features of the site;
        This has been retyped from the original document.
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                               -2-

     (2)  ability of the site to provide a stable foundation for
          the engineered containment structure;

     (3)  ability of the site to produce adequate ground-water
          monitoring data;

     (4)  site compliance with Federal statutes and standards
          regarding protected lands.

     These criteria are based on current regulations under 40 CFR
Part 264, which specify design and operating requirements for
hazardous waste facilities and establish ground-water monitoring
and corrective action requirements.  While Part 264 does not
contain explicit location standards based on hydrogeologic
considerations, the ground-water monitoring, corrective action
and design and operating regulations contain performance
standards that implicitly involve hydrologic and geologic
factors.

     Guidance on application of the four criteria has been issued
in draft form.  Guidance on a fifth topic (definition of areas of
vulnerable hydrology) is currently being developed and will be
issued in May 1986.  In 1988, EPA intends to propose regulatory
standards for the location of new and existing hazardous waste
facilities.  These last two activities are mandated by the HSWA.

     You also inquired as to the applicability of Section
3005(c)(3)  of RCRA to the construction of Cell #6.  Section
3005(c)(3)  (also called the "omnibus" provision) provides that
individual RCRA permits "shall contain such terms and conditions
as the Administrator (or State) determines necessary to protect
human health and the environment."  Given that CECOS does not
require any EPA approvals before proceeding to construct Cell #6
while operating under interim status, the question you raised was
whether the omnibus provision gives EPA the right, and thus the
responsibility, to impose conditions (including denial of the
right to construct) during interim status.  The answer is that
the omnibus provision applies only to permit conditions, and EPA
has the legal basis under this provision to impose additional
requirements (beyond the minimum technology requirements outlined
in the statute) on the construction of Cell #6 during the interim
status period.

     At this time, we expect New York to receive authorization to
issue RCRA permits in March 1986.  As the processing of the CECOS
permit application is not expected to be completed before that
date, the final decision regarding issuance of the permit will
rest with the State.  We suggest, therefore, that you also
contact the State agency regarding the status of the CECOS
application.   The appropriate contact in New York is:
        This has jbee^ retyped from the original document.
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                               -3-

                    Norman H. Nosenchuck, Director
                    Division of Solid and Hazardous Waste
                    Department of Environmental Conservation
                    50 Wolf Rd. Room 209
                    Albany, New York  12233
                    (518) 457-6603

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


                    Sincerely,
                    Marcia Williams, Director
                    Office of Solid Waste
cc:  Norman Nosenchuck
        This has been retyped from the original document.
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                                                    9528.1986(03)


January 3, 1986


Senator Charles E. Grassley
United States Senate
Washington, D.C.  20510


Dear Senator Grassley:

     Thank you for forwarding Mr. Gary Jaehnel's letter of
November 26, 1985, concerning the Kiowa Corporation's transfer of
its hazardous waste storage operations to a new site.  Outlined
below is our understanding of how regulations under the Resource
Conservation and Recovery Act (RCRA) apply to Mr. Jaehnel's
facility.

     RCRA requires that hazardous waste storage facilities obtain
permits to ensure that the wastes are managed in an
environmentally protective manner.  RCRA regulations also allow
facilities that were in existence on May 19, 1980 to continue
operation in "interim status" until decisions are made as to
whether or not to permit the facility (Kiowa is an interim status
facility).  Regulations prohibit, however, changes to an existing
facility during interim status which are so extensive as to
amount to reconstruction of the facility [see 40 CFR 270.72(e)].

     The proposed transfer of the Kiowa storage facility would,
in effect, amount to reconstruction of the facility.  As such, it
must be treated as a new facility.  In order to begin
construction of a new facility, it must first be issued a permit,
as provided by 40 CFR 270.10(f).  In addition, closure of the
existing Kiowa facility must be done in accordance with interim
status closure standards (contained in Subpart G of 40 CFR
Part 265).

     We contacted Mr. Gene Evans, the EPA Region VII staff member
assigned to this project, who provided additional background
information.  Mr. Evans reviewed the revised closure plan
submitted by the Kiowa Corporation, and advised Mr. Jaehnel that
the revised closure plan was not acceptable as submitted.  Mr.
Evans offered to amend the submitted plan as provided for in the
regulations.  Mr. Jaehnel preferred to amend the plan himself and
requested a letter detailing the deficiencies in the plan.  This
letter was prepared and sent on November 20, 1985.

     We wish to apologize for any lack of responsiveness Mr.
Jaehnel may have encountered.  As an "interim" authorized state,
the Iowa Department of Water, Air, and Waste Management had been
implementing certain portions of the RCRA program, including
        This has been retyped from the original document.
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closure activities, in lieu of the Federal hazardous waste
management program.  The Iowa State legislature voted to end
funding of the State's hazardous waste management program,
effective July 1, 1985.  On that date, the State's hazardous
waste management program ceased operating and EPA Region VII
assumed responsibility for the entire hazardous waste management
program, including closure activities.  This transfer of
responsibility may explain some of the problems Mr. Jaehnel
experienced.  Again, we apologize for any lack of responsiveness
he may have encountered and regret any inconvenience.

     If you or Mr. Jaehnel have any additional questions or
require further information, please call Mr. Gene Evans at
(913) 236-2888.  Thank you for your interest in this matter.

                    Sincerely,
                    J. Winston Porter
                    Assistant Administrator
cc:  Region VII
     Congressional Liaison/Deremer
        This has been retyped from the original document.
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                                                            9528.1986(04)
             RCRA/SUPERFUND HOTLINE  MONTHLY  SUMMARY

                              JANUARY  86
4.   Obtaining Interim Status

    A hazardous waste management facility has received a final permit, pursuant to
    Section 3005 of RCRA to store and  treat hazardous wastes.  The facility also
    has solid waste management units  (SfcMU) on-site.  If the solid wastes in tne
    SVMUs became RCRA hazardous waste  because EPA lists them as hazardous wastes,
    can the facility obtain interim status for these newly-regulated units?

         Interim status, under Section 3005(e) of RCRA, is granted to facilities.
         Interim status is not granted on a unit-by-unit basis.  Therefore, fully
         permitted facilities may not  receive interim status for newly regulated
         units.

         Fully permitted facilities will be allowed to treat, store, or dispose of
         waatM covered by new hazardous waste listings if the owner/operator
         submits an amended permit application pursuant to 40 CFR 124.5 and the
         permit has been modified pursuant to 40 CFR 270.41 or 270.42.

         Source:    Carrie wehiing  .(202)475-8067
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                                                                    9528.1986(06)
               RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                  JULY  86

A.  RCRA

 1.   Interim Status for Receiving  9DG  Waste

     ^ facility owner/onerator (o/o) would like  to obtain  interim status
     to receive wastes from small  ouantitv Generators  (SOGs) that aenerete
     between 100-1000 ka.  of hazardous waste  oer month.  These SOGs will
     be sutject to new reauirements effective Seotember 22,  1986.  finder
     the new requlations,  these SOGs are subject to  notification, manifest
     reauirements, recordkeeoina and soecial  generator accumulation
     reauirements (see the March 24, 1986 Federal Register,  51 FR 10146) .
     In addition, 100-1000 kg/month generators will  no longer be allowed
     the disoosal options  of 40 CFR §261.5(q)(3), but  must send their
     wastes destined for disoosal  to oermitted or interim  status RCRA
     facilities.

     (a)  If a facility is  currently permitted under  TSCA to  manage ^CB waste,
         but intends to receive hazardous wastes from  SOGs,  can it be
         considered an "existing facility" on September 22,  1986 for interim
         status ourposes?

         Yes.  A facility  that is  "in  existence" on  the date of regulatory
         changes  which first subject it to the RCRA  Demit reouirement
         may gualify for interim status under Section  3005(e).  A facilitv
         is "in existence" if it is in operation or  "under construction"
         as. defined in 40  CFR 260.10.   Thus a facility which is managing
         SOG wastes on or  before September 22, 1986  may gualify for
         interim status because it will be newly subject to  the requirement
         to obtain a RCRA  permit on that date (40 CFR  270.70(a), 50 FR
         28753).   The fact that this facility is also  manaaing PCBs has
         no bearing on the RCRA interim status of this facilitv.  The PC^
         wastes must continue to be managed at the facility  according to
         the terms of the  TSCA permit.

     (b)  If a facility receives interim status to manage SOG waste, may
         it then  begin to  accent full-generator  hazardous  waste also?

         A facility which  is "in existence" on the effective date of
         regulation subjecting it  to the RCRA permit requirement must
         also submit a Part A permit application and file  a  RCRA Section
         3010 notification (if applicable) in order  to obtain  interim
         status.   The type and amount  of waste for which the facility
         obtains  interim status depends on the Part  A  application.  An
         interim  status facility must  submit  a revised Part  A  apolication
         and comply with the reauirements of  40  CFR  270.72 in  order to
         manage wastes not identified  by the  Part A  or to  increase the
         capacity of the facility.  Therefore, if the  facility was not
         accepting full-generator  waste before September 22, 1986, it is
         not automatically covered by  its newly-acouired interim status
         to handle waste from SOGs, but must  submit  a  revised  Part A and
         comply with 40 CFR 270.72.

         Source:     Nancy  Pomerleau (202) 382-4500
                    Bob Axelrad     (202) 382-5218
         Research:  Jennifer Brock
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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY       9528.1986(07)
                        S8M9
HEHORAHDUH

SUBJECT:  Interim Statue of th« Freeman Chemical Incinerator

r*OM:     Arthur Glater, Chief
          Incineration/Storage PAT Section

TO:       Vladimir Gulevlch, Director
          Virginia Bureau of Hazardous Haste Management


     This oefiorandun is in response to your request for assistance
in deterwininc; whether the incinerator constructed by Freeman
Chew leal Corporation in Chatham, Virginia has interiir status*
Ac our staffs have discuesed, this determination was complicated
by two facts.  Pirst was Freeman Chemical's reference to the
regulatory amendment to chances durinp interim status which EPA
was considering a* a result of the settlement of HE DC v. EPA,
but which has not oeen proposed.  Secondly* Freeman Chemical
would like to resume incineration of reaction water which was
previously mistakenly classified (initially by Freeman Chewica)
and subsequently by CPA) as nonhacardous.

     The NRDC vs. EPA case cited by Freeman Chemical was concluded
by a settlement agreement under which EPA would propose certain
amendments to the regulations coverino changes during interim
status.  The proposal was to contain specific provisions on
replacement units.  However, since no such changes to the regula-
tions have been made to date, the MRDC v. EPA ease has no bearing
on this issue.

     Under federal regulations at 40 CfR 270.73, interim status
terminates vfeen final administrative disposition of a permit
application in made, when action is taken to terminate interim
status due to late or incomplete submittal of Fart § information,
or when a facility loaea interim statue under the new Loss of
Interim Status (LOIS) provisiona*  Becauae none of these situations
has occurred, the facility has interim statue.  Thus, because
replacement is a chanoe during interim statua, the construction
of a new unit must comply with the State's analogy to 1270.72.
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                              - 2 -
     The question of whether construction of the new waste/fume
incineration unit is allowable as a change during interim status
depends on whether or not the reconstruction cost ll»it of S270.72
is exceeded.  This subsection prohibits changes amounting to
reconstruction of a haiardous waste management facility during
Inter!* status.  •Reconstruct ion* o«curt when the capital invest-
Mnt In the changes to the facility exceeds fifty percent of the
capital cost of a comparable entirely new facility.  As no financial
information has been supplied to us* we have made no attempt to
make such an evaluation.  Tour office should apply the "50%
rule" to determine whether the construction of the new incin-
erator is allowable as a change during interim status.

     If you have any questions on our response or on application
of the 501 rule, fee] free to contact Sonya Stelmack of my ataff
at (202) 312-4500.

cct  Ken Shuster
     Gary Gross
     Sonya Stelmack
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                                                    9528.1986(08)
November 20, 1986

MEMORANDUM

SUBJECT:  Permitting Units or Facilities That Have Lost Interim
          Status

FROM:     Gene A. Lucero, Director
          Office of Waste Programs Enforcement (WH-527)

          Marcia E. Williams, Director
          Office of solid Waste (WH-562)

TO:       Allyn M. Davis, Director
          Hazardous Waste Management Division (6H)
     Your letter of October 15, 1986, raises several issues —
some generic and some specific to the Eagle Picher ElectroOptic
Materials (EOM) Loss of Interim Status (LOIS) case.

     The first specific issue is whether the EOM surface
impoundment has lost interim status yet.   Your letter indicates
that a final Agency decision concerning whether or not the EOM
unit did lose interim status may not be made for many months.
This is important in this case, because if, in fact, the Agency
has not made a decision, then we cannot demand that receipt of
hazardous waste at the unit in question be halted under LOIS
provisions.   If you find that the EOM surface impoundment has
lost interim status, then the appropriate penalties can be
imposed through an enforcement action.

     A second, broader issue is what actions should be taken, and
in what priority, for land disposal units or facilities that are
also closing under the HSWA LOIS provision.  In the case of EOM
the unit's loss of interim status has not finally been
determined.   Therefore, review of the permit application should
proceed in a manner similar to other land disposal permit
applications.  In cases where loss of interim status has been
determined,  an owner or operator still has the right to pursue a
permit.  Where that option is pursued, the Agency is obligated to
review the permit application.  These cases present a special
challenge, however, since the facility is also required to have
submitted an interim status closure plan 15 days after the loss
of interim status.  The Agency may be in the position of
concurrently evaluating a closure plan (submitted as a result of
the facility or unit's loss of interim status) and permit
application for the same facility or unit.
        This has been retyped from the original document.
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                               -2-

     Review, approval, and implementation of the closure plan
should proceed without regard for any pending permit application,
according to priorities outlined in the RCRA Implementation Plan
and Regional or State Strategies and facility management plans.
In like manner, permit applications for LOIS facilities or units
should be reviewed in accordance with established land disposal
permitting priorities for new facilities or units.  Within the
overall priority scheme, several considerations should be kept in
mind during the closure plan/permit application review process:

     (1)  The statutory loss of interim status provision requires
          that the affected unit or facility stop receipt of
          hazardous waste.  Resumption of waste receipt cannot
          occur until and unless a final RCRA permit is issued.

     (2)  The LOIS unit or facility must begin closure activities
          according to the schedule provided in Part 265 Subpart
          G.  Extensions to the time allowed for closure at LOIS
          units or facilities under §265.113(a)(1)(ii) and
          (b)(1)(ii) should not be granted solely on the basis of
          a pending permit application, or on the basis of future
          capacity to receive hazardous waste since the loss of
          interim status abrogates the legal ability to continue
          to receive waste.  The Agency should expedite closure
          and  (where applicable) deny permits for units or
          facilities that present environmental threats and units
          that continue to fail to comply with financial and
          ground-water monitoring requirements.

     (3)  In some cases, final closure activities may need to be
          delayed for physical reasons or to increase the
          effectiveness of closure (e.g., delay of final cover
          placement to allow for waste settlement).  Other
          closure activities (e.g., control of run-on/run-off,
          treatment of waste, freeboard maintenance, etc.) will
          still need to be implemented, according to the routine
          closure schedule.

     (4)  If a final RCRA permit is issued before completion of
          all closure activities, the terms of that permit
          (including the permit's closure plan under Part 264)
          will supersede the interim status closure plan.   (See
          §265.l(b).)  In reviewing the proposed Part 264 closure
          plan, permit writers should attempt to ensure technical
          consistency between it and the interim status closure
          plan.

     (5)  When a facility or unit loses interim status it loses
          all associated privileges.  Therefore, permits for
          units or facilities that have lost interim status are
          permits for new units or facilities and require
        This has been retyped from the original document.
-------
                               -3-

          compliance with all applicable HSWA requirements for
          new units (e.g., minimum technological requirements),
          This may require extensive modification to existing
          permit applications and physical reconstruction of
          affected LOIS units.
cc:  Hazardous Waste Division Directors
     Regions I-V and VII-X (with incoming)
     Hazardous Waste Permit Section Chiefs
     Regions I-X (with incoming)
     Marcia Williams
     Bruce Weddle
     Lloyd Guerci

bcc: Ken Shuster
     Matt Hale
     Anne Allen
     Sylvia Lowrance
     Ginny Steiner
     Terry Grogan
     Chris Rhyne
     Jackie Tenusak
     Steve Botts
     Amy Svoboda
        This has been retyped from the original document.
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                                                    9528.1986(09)


October 27, 1986
Mr. Frank L. Deaver
Corp. Environmental Services Mgr.
Tektronix, Inc.
Tektronix Industrial Park
P.O. Box 500
Beaverton, Oregon  97077
Dear Mr. Deaver:

     Thank you for your letter of October 1 bringing to my
attention the problems you have encountered in trying to comply
with the RCRA interim status standards (40 CFR Part 265) while
simultaneously developing a permit application to address the
permit requirements of 40 CFR Part 264.  Mr. Ken Feigner in EPA's
Regional Office in Seattle, Washington is responding to your
questions regarding the particular circumstances of the
permitting efforts at your facility and the inspection conducted
last February by EPA and the State of Oregon.

     As you are aware, interim status facilities must comply with
the Part 265 standards (or State counterparts, in authorized
States) until final disposition of the RCRA permit.  If some of
the common elements of Parts 264 and 265 are improved in the
process of developing a permit application (e.g., waste analysis
plan), then it may benefit the facility to replace or append the
interim status document with the newer version.  I agree with you
that the problem of trying to meet both sets of standards is
probably shared by other existing facilities that are pursuing
RCRA permits.  I will relate your experience to others in the
Agency who are involved in enforcing the RCRA program.  My office
will also continue to ensure that enforcement activities are
coordinated with any concurrent permitting work at a facility.
        This has been retyped from the original document.
-------
                               -2-

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

                    Sincerely,
                    Marcia E. Williams
                    Director
                    Office of Solid Waste

cc:  Ken Feigner, EPA Region 10
     Fred Hansen, Oregon DEQ
     Gene Lucero, EPA OWPE w/copy of incoming
     Lloyd Guerci, EPA OWPE w/copy of incoming

     Regional H.W. Branch Chiefs w/copy of incoming
        This has been retyped from the original document.
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                                                          9528.1986(1

            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON 0 C 20460



                            NOV 13 1966
                                                          O»ric» or
                                                              COuMft v.
Richard G. Stoll
Karen K. Wardxinski
Freedman, Levy, Kroll * Simonds
Washington Square - 1050 Connecticut Av«., N.W.
Washington, O.C.  20036

Dear Karen and Dick:

     This letter is in response to your request of September 25,
1986 for a written interpretation of the interim status qualifi-
cation requirements as they apply to hazardous waste fuel (HWF)
storage facilities.  Specifically, you have asked whether in
order to qualify for interim status an HWF storage facility must.
1) submit a 3010(a) notification by January 29, 1986 even where
the facility does not begin hazardous waste activities until
after that date or 2) begin actual storage of hazardous waste
fuels by May 29, 1986, the effective date of the HWF regulations.
As discussed below, we believe that the answers to both questions
 s "no"
     Under RCRA Section 3005(e)(l), a facility may qualify for
interim status if it 1) is in existence on November 19, 1980 or
on the effective date of regulatory changes which render the
facility subject to the requirement to have a RCRA permit, 2) is
in compliance with applicable 3010(a) notification requirements,
and 3) submits Part A of the two-part RCRA permit application.
Section 3010 (a) of RCRA, as amended in 1984, requires the owner
or operator of any facility which produces, burns, or markets
hazardous waste fuel to file a notification of hazardous waste
activity by February 8, 1986.  On November 29, 1985, CPA issued
final rules regulating hazardous waste fuels.  The requirements
for HWF storage facilities became effective on Nay 29,  1986.

     Your first question concerns the application of the 3010 (a)
notification requirement to facilities which begin hazardous waste
fuel storage activity after January 29, 1986, which is  60 days
after the promulgation of the HWF regulations.  The November  29,
-------
                              - 2 -


 1985 HWF rule did not distinguish between the scacucory 30lO(a)
 notification requirement: and regulatory notice requirements.
 Nor did Che rule explicitly address HWF storage facilities  which
 begin operation after the promulgation of the HWF regulations.
 Both of these issues require clarification In order to  answer
 your question.

     First, the November 29 HWF rule Implies that the applicable
 date for HWF storage notification under the statute Is  January 29,
 1986.  This Is Incorrect.  The applicable date for HWF storage
 notification under 3010 Is February 8,  1986, and this date  Is
 unaffected by the November 29 rule.  The notification requirement
 under Section 3010(a) of RCRA for HWF facilities Is self-imple-
menting.  See H.R. Rep. No. 198, 98th Cong., 1st Seas.  40  (1983).
 Under that provision, all facilities which produce, burn or
market hazardous waste fuel must submit a notification of  their
hazardous waste activity by Che dace 15 months after the enactment
of HSWA, I.e. February 8, 1986.   Although tht HWF regulation!
 promulgated In November, 1985 contain several notification
 requirements, those notices are In addition to, not In  replacement
of, the February 8 notification requirement under Section 3010(a).
 However, a notification under the rule, by January 29,  would satisfy
 the 3010(a) requirement to "notify by February 8.

     Second, under Section 3010(a). che February 3 notification
 requirement Is not applicable to any facility for which the
Administrator waives this requirement.   The November 29, 1985
HWF rule does not require 3010(a) notification from any facility
 not in existence on that date and was intended to waive the
 statutory notification requirement for  all such facilities.

     Because HWF storage facilities not In existence on November 29,
 1985 were ex an p ted from the 3010(a) notification under  the  November
29, 1985  HWF rule, no 301Q(a)  notification requirement is  applicable
 to facilities which cane into existence after November  29,  1985.
Thus, to answer your specific question, an HWF storage  facility
which begins storage of hazardous waste fuel 4fter January  29,
 1986 was not required to submit a notification of hazardous waste
 activity In order to qualify for Interim status on "ay  29,  1986.

     Your second question concerns the  interpretation of the
 requirement chat a facility be "In existence" on the date of a
 regulatory change subjecting It to the  RCRA permit requirement
 In order CO qualify for Interim status.  This question  was  not
 addressed in che November 29, 198S HWF rule, and In fact,  Is not
 directly addressed in any of the RCRA regulations.  The federal
 RCRA regulations do define "existing facility", but only with
 respect to facilities "in existence" on November 19, 1980.
 See 40 CFR 260.10.  Moreover, che "existing facilicy" definlclon
3oes not specifically address che situation of a facility  which
-------
 intends-  co handle hazardous waste but for which no physical
 construction is necessary.

     However, as we indicated to you in our earlier conversations,
 we believe that the question of whether storage facilities  intending
 to convert to hazardous waste fuel storage are "in existence"  on
 May 29.  1986 should be resolved by analogy to the "existing
 facility" regulations.  In order to be an "existing facility"  for
 the purposes of qualifying for interim status prior to 1984,  a
 facility had to be "in operation" or under construction on
November 19. 1980.  A ftcillcy is "in optrteion"  if it is actually
managing hazardous waste,  Thus by analogy, a facility is "in
 existence" on the effective date of a regulatory change which
 subjects it to the RCRA permit requirement if it is actually
managing hazardous waste on the effective date of the regulations.

     A facility could also qualify for interim status as an
"existing facility" if it "commenced construction" by November
19,  1980.  Under 40 CFR 260.10, "commenced construction" is further
defined  to mean a facility which has obtained all necessary
preconstruction permits and either 1) has begun continuous onsite
construction or 2) has ente.red into construction contracts  chat  .
cannot be cancelled without substantial loss.  Although not
directly addressed by the regulation. EPA has interpreted "commenced
construction" to also include facilities which have obtained  all
necessary preconstruction permits and completed construction
prior to November 19, 1980.  46 FR 2344 (Jan. 9,  1981). Thus  a
facility converting to hazardous waste storage would be "in
existence" on November 19, 1980 if by that date the owner or
operator has obtained any necessary preconstruction permits
required for modification of the facility and can objectively
demonstrate an intent to handle hazardous waste within a reasonable
 time.  Id.  We believe that this interpretation is equally appli-
cable to facilities intending to convert to hazardous waste
management on the effective date of regulatory changes which
would subject it to the permit requirement.  Thus a storage
facility may be "in existence" for the purposes of qualifying  for
 interim status if by May 29. 1°86 it WAS actually storing hazardous
waste fuel, under physical construction as a HUF storage facility,
or is converting Co hazardous waste fuel storage.

     If  I can be of further assistance to you on these issues,
pleas* do not hesitate to call.

                              Sincerely,

                               /'• I*-"

                              Mark A. Greenwood
                              Assistant General Counsel for RCRA
                              Solid Waste & Emergency Response
                                Division
-------
                                           9528.1986(11)
 OK 10s86

 KBMORANDU*
 SUBJECT)   Permitting Unit* or Pacilltiee That Have Lost
           Interim Statua

 PFOH-      tent A. Luctrd  Olrtctor
           Office of Kaate  Programa Enforcement (»m-527)

           *arcle E. willlama, Director
           Office of Solid  Vaate (Wfl-562)

 TO?        Allyn N. Devia,  Director
           Raaardoua Waate  Management Dlvialon (»H)
           Ration VI


      Your letter of October 13, lt§6,  raiaee  eeveral  issues  —
 aome qanaric and SOVM apccific to tha  Baqla Pichar Elactro-Optic
 Hatarlala (BOM) Loas of  Xntarlv Statua (LOIS) caaa.

      Tha  firat apacific iaaua ia vhathar the  BOM  aurfaca inpoun
-------
     Review, approval, and implementation of the closure plan
• hould proceed without regard for any pending permit application,
according to priorities outlined in the RCRA Implementation Plan
and Regional or State Strategies and facility management plans.
The Agency considers it good practice to close hasardous waste
land disposal units or facilities after they lose interim status
in order to minimize the likelihood of environmental and human
health damage.  Therefore, units that are reouired to close
should be closed expeditiously.  In like manner, permit appli-
cations for LOIS facilities or units should be reviewed in
accordance with established land disposal permitting priorities.
Within the overall priority scheme, several considerations should
be kept in mind during the closure plan/permit application
review process:

     (1)  The statutory loss of interim status provision
          requires that the affected unit or facility stop
          receipt of hasardous waste.  Resumption of waste
          receipt cannot occur unless and until a final RCRA
          permit is issued.

     (2)  The LOIS unit or facility must begin closure activ-
          ities according to the schedule provided in Part .265
          Subpart G.  Extensions to the time allowed for closure
          at LOIS units or facilities under 5265.113(a)(1)(ii)
          and (b)(l)(ii) should not be oranted solely on the
          basis of a pending permit application, or on the
          basis of future capacity to receive hazardous waste
          since the loss of interim status abrogates the legal
          authority to continue to receive waste.

     (3)  In some cases, final closure activities may need to
          be delayed for physical reasons or to increase the
          effectiveness of closure (e.o., delay of final cover
          placement to allow for waste settlement).  Other
          closure activities (e.g., control of run-on/run-off,
          treatment of waste, freeboard maintenance, etc.)
          will still need to be implemented, according to the
          routine closure schedule.

     (4)  If • final RCRA permit is issued before completion
          of all closure activities, the terms of that permit
          (including the permit's closure plan under Part 264)
          may supercede the interim status closure plan.  (See
          5265.l(b).)  In reviewing the proposed Part 264
          closure plan, permit writers should attempt to ensure
          technical consistency between it and the interim status
          closure plan.
-------
                               -  3  -
      (5)  Aftmr a facility or unit  loses  interim status future
          activities may be governed by new HSWA requirement a.
          Closure activities conducted at units subsequent to
          loss of inter!* status may, in some eases , reouire
          implementation of the HSWA minimi* technological
          recuirements if a permit  is subsequently icsued for
          reuse of that unit, since closure activities cow Id,
          in some eases, cause the unit to be defined as a
          •replacement* unit under $3004(o) ( 1) (A) (e.g., where
          all or substantially all of the wsste in the unit Is
          removed).   However, for the purposes of section
          3004(o), units that have lost interim status will
          not be considered new units unless they first received
          hazardous waste after November 8, 1984.
cc:  Haxardous Wsste Division Di rectors "^
     Regions I-V and VI I -X (with incoming)
     Hazardous Wsste Permit Section Chiefs
     Regions I-X (with incoming)
     Bruce Weddle
     Lloyd Guerci
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                                                            9528.1987(01)
            RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                             JANUARY 87
4.   Does the authority granted under RCRA section 3008(h)  extend to
     facilities that have lost interim status (RCRA §3005(e))?

         EPA has interpreted section 3008(h)  to apply to the following:
         1) facilities that have applied for and are now operating under
         interim status; 2) facilities that treat, store, or dispose of
         hazardous waste but have not obtained interim status because
         they did not fully comply with section 3010 notification
         requirements or submit a timely Part A; and 3) units or
         facilities at which active operations have ceased  and interim
         status has been terminated pursuant to 40 CFR 124  or Sections
         3005(c) and 3005(e)(2) of RCRA.  Section 3008(h) specifically
         provides that the interim status corrective action orders may
         include a suspension or revocation of the authority to operate
         under interim status, as well as any other response necessary
         to protect human health or the environment.  Accordingly,
         Section 3008(h) can be used to carpel responses to releases at
         facilities that lost interim status prior to a  section 3008(h)
         action.  EPA believes this approach to be consistent with
         Congressional intent to assure that significant environmental
         problems are addressed at facilities that treat, store, or
         dispose of hazardous wastes but do not have a final RCRA
      .   operating or poet-closure permit.  H. Rep. Mo. 1133, 98th
         Congress, 2d.  Sees.  110-112 (1984).  (from "Interpretation  of
         Section 3008(h) of the Solid Waste Disposal Act",  J. Winston
               r, December 16th, 1985.)

                   Susan O'Keefe     (202) 475-9320
                   Ginny Steiner     (202) 475-9329

         Research:  Deborah McKie    (202) 382-3112
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%
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY    9528.1987(02)

                       WASHINGTON, O.C. 204*0
                                                           O*
                                              • OLIO *A»Tt AMD IMtHOtNCV MS»>OWSi


                             MAR I M987
MEMORANDUM


SUBJECT:  Regulatory Status of  Contaminated Ground Water
         /•V JaoiE P7. McGrd.
FROM:     Jack McGraw, Deputy Assistant Administrator
          Office of Solid Waste and Emergency Response

TOt       Robert Dupray, Director
          Waste Management Division
          Region VIII

     Thank you for your February 17, 1987, memorandum regarding
applicable requirements for units in which ground water con-
taainated with hazardous waste  is to be treated as part of a
corrective action progran.

    Your first question centered on whether a treatment system
at an interim status facility can operate without a permit
if 5270.14 and Part 264 standards are incorporated into a
§3008(h) order.  Since the facility in question is operating
under interim status, the treatment system should be handled
as a change during interim status under $270.72(c) in conjunc-
tion with issuance of the I3008(h) order.  The Part 264 standards
for permitted facilities or (270.14 permit application infor-
mation requirements are not applicable unless the changes at
the facility amount to reconstruction under §270.72(e).  If
the changes would amount to reconstruction, a permit would be
required for the treatment system.

     Your second question concerned the leakage of hazardous
waste compounds from process areas, and whether such leakage
met the definition of "discarded- in §261.33 and §261.34.
Such activity does meet the "discarded" definition of §261.33,
as long as the leaked material  was not being beneficially
used or reused, or legitimately recycled or reclaimed (§261.2,
§261.3).

     The last question focused  on whether a hazardous waste
treatment unit which is to be constructed for the purpose of
treating contaminated ground water at a facility without
interim status would be required to obtain a permit.  Sections
264.Kg)(8) and 265.1(c)(ll) provide a regulatory exemption
from interim status and permitting standards for "treatment
-------
and containment activities during immediate response" to
hazardous waste discharges and imminent and substantial
threats of discharges.  The effect of this exemption is to
promote hazardous waste discharge prevention and control by
relieving persons engaged in immediate response to discharges
and serious threats of discharges from time consuming
requirements.

     If the activity in question could be considered an
"immediate response," the exemption from permitting and
interim status standards for the treatment'units would be
appropriate.  Once the immediate response is over,  however,
the units would have to comply with permit requirements
under Parts 270 and 264.  It should also be noted that if
the treatment system in question were to meet the definition
of a "wastewater treatment unit" in §260.10, the system
would not require a permit nor be required to meet Part 264
standards (§270.1 (g)(6)).  Please note that,  in any case,
Part 264 standards would not be imposed under a Section
3008(h) order.  Rather, as described in our response to your
first question, interim status standards would apply.

     If you have any further questions regarding these issues,
please contact George Faison at FTS 382-4422.
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                                                         9528.1987(03)
           RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                             MARCH 87
7.  Construction During Interim Statua

    A facility ^btained interim status for container storage.  It later
    completely ^Josed all storage units.   Can the owner/operator now
    build a treatment unit under interim status or  is a  full permit
    required?
                  • *

         Once a facility has been granted interim status, the facility
         will retain its interim status until either 1)  the final
         disposition of a permit application  by that facility has been
         made, 2) the interim status is terminated  per 40 CFR 270.10(e)(S)
         or under Section 3008(h),  or 3)  the  facility loses interim
         status under 40 CFR 270.73(cJ-(f).   (see 40 CFR 270.73).  If
         the owner/operator of the facility in question  wanted to build
         and operate a treatment unit after all of, the container storage
         units had been closed,  the owner/operator'would have to comply
         with the following RCRA regulations.  First, the cost of the
         construction of the treatment unit could not exceed 50% of the
         cost of building a container storage area  similiar to the one
         for which interim status was originally granted according to
         40 CFR 270.72(e).  Second, the owner/operator would have to
         submit a modified Part A and have the activity  approved by the
         Director (40 CFR 270.72(c)).  If the cost  to build a new
         treatment unit exceeds the 50% reconstruction threshold, then
         the owner/operator would need a RCRA permit prior to starting
         construction of the new treatment unit.

         Sourcet    Matthew Hale   382-4740
         Research>  Deborah McKie  382-3112
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                                                             9528.1987(04)
              RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                               MARCH  87
6.  Construction During Interim Status

    A facility owner/operator obtained interim status for several different
    units.   Seme of the units were later closed.  The owner/operator.now
    wants to build another unit.  40 CFR 270.72(e), prohibits any
    construction during interim status that would cost more than 501 of
    the cost of building the existing facility.  Do these provisions
    apply to the facility as it originally was when it was granted
    interim status and all units were open, or does it apply to the
    facility as it is now,  with only a portion of the original units
    open?

         The provisions governing construction activities at a facility
         operating under interim status (40 CFR 270.72(e)) apply to the
         facility as it was when its fert A was first submitted and
         interim status was granted.  Also any construction costs are
         additive,  For example, if there is  some reconstruction at the
         facility which costs the equivalent  of building 251 of the
         existing facility, any additional construction could cost no
         mors) than 251 of rebuilding a new facility.  Construction costs
         an based on currant estimates in current dollars.

         Source!    Mtthew Hale   382-4740
         research:  Deborah McKie
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                                                   9528.1987(09)
          RCRA/SUPERPUND HOTLINE MONTHLY SUMMARY

                        AUGUST 87
   1.  Changes at Interim Status  Tank  Facilities

        According to  40  CFR  270.72,  an  owner/operator  who
   wishes 'to make  changes  in  an  iateriu status facility
   must  submit  a  revised Part  A permit  application  and  a
   justification  for  the  change  to the  Regional
   Administrator (or  State Director).   The  revised  Part  A
   application is required for management of new hazardous
   waste  at  the  facility,  increases  in design  capacit7,
   changes in the facility's  -process  for treatment, storage
   or  disposal,  and  changes  in  ownership or  operational
   control at the facility.

        An  interim status  tank  storage facility plans  to
   upgrade its tanks  to  meet the new  secondary containment
   standards of Section 265.193 (see 51  FJ?  25422).   Does
   upgrading  a tank  to  meet  secondary  containment
   requirements constitute  a  "change during interim status"
   under  Section 270.72?

     Yes.  Upgrading  a  tank  to meet the hazardous waste
     tank secondary  containment  requirements does
     constitute a  change subject  to Section  270.72.
     According  to  Section  270.72(c),  an  owner/op«racor
     who wishes to  make a  change  at an  interim status
     facility must submit the revised  Part A application
     and the  justification for the change  prior  to
     making  the change.

     In   general,  Section 270.72(e)  does not  allow a
     change under  interim  status  where costs  exceed
     fifty  percent  (50?)  of  the  capital  cost  of
     construction  of  a  comparable  new  facility.
     Nevertheless,  Section  270.72(e) contains  an
     exception  to  this prohibition  for  tanks  that must
     be  retrofitted  to  comply  with  Section 265.193 (see
     51  F_R  25486).   Therefore,  the  cost of retrofitting
     a tank to  comply  with Section 265.193  would be
     allowed  to  exceed fifty percent (50?)  of the cost
     of  constructing  a  new  tank  facility.  Retrofitting
     to  meet the secondary containment standards  of Part
     265 Subpart  J  is still considered to  be a  change
     requiring  submittal of a revised Part A  application
     and justification.

Source:   Carrie Wehling (202)  332-7706
Research: Jennifer B. Planert
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                                              9528.1987(i0)
 Mr.  Grant  Trigger
 Clark,  Klein  &  Peaumont
 1600  first Federal  Building
 1001  Woodward Avenue
 Detroit, MI 48226-1962

 Tear  Mr. Triggert

      This  is  in  response  to  the  April  1,  1987 request on behalf
 of the  St.  Mary's Peerless Cement Company of Detroit, Michigan
 (St. Mary's) for  an  opinion on whether  the St. Mary's cement kiln
 Qualifies  for interir. status to  burn hazardous waste fuels under
 section 3005(e)  of  the Resource  Conservation and Recovery Act,
 (RCRA)  as  amended.  This  letter  also responds to the arguments
 raised  on  behalf of Petro-Chem Processing, Inc.  (Petro-Chem),
 opposing any  interpretation  of section 3005(e) that would allow
 St. Mary's to begin operation prior to receiving a RCRA permit.

 Conclusion

     On the basis of the  information submitted by St. Mary's,
 we believe that  St. Mary's nay qualify for interim status under
 section 3005(«).  The remainder  of tnis letter discusses our
 interpretation of the section 3005(e) requirements at they pertain
 to the  St. Mary's facility and the conditions under which St. Nary's
 may obtain interim  status.

Background

     Under section  3005(a) of RCRA, no facility may treat, store,
or dispose of hazardous wait* witnout a permit after November 19,
 1980.   However,  under section 3005(e), a facility may be treated
as if it had a permit for the interim period pending review of
 its permit application.  To operate under this 'interim status,'
a facility must  meet three conditional  (1) the  facility must
be "in  existence* either on November 19, 1980 or on the effective
date of statutory or regulatory  changes under RCRA that subject
it to the  permit requirement, (2) the facility must comply with
applicable notification requirements under section 3010(a)
of RCRA, and (3) the facility must submit a Part A permit appli-
cation.  Section 3004(q)(2)(C) requires that any cement kiln
 located within a municipality of greater than 500,000 population
that  burns fuel containing any hazardous waste after November 8,
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                               -  2 -
 1984  must be treated  as a hazardous wa«te incinerator.  Such
 kilns war* not  subject to RCRA pernit requirements prior to
 November 8, 1984.

      St. Mary's  is a  cement kiln  located within the boundaries of
 the city of Detroit,  Michigan, a  city of greater than 500,000
 population.  In  1982, St. Mary's  conducted a trial burn of waste-
 derived fuels as part of its developing secondary fuels program. ,
 Between 1982 and 1986, St. Mary's and th* fuel supplier who had
 provided fuels  for the 1982 test  burn continued to discuss the
 prospect of future burning of hazardous waste fuels.  In early
 1987, St. Mary's contracted for waste-derived fuels from that
 waste fuel supplier.  To burn hazardous waste fuels, St. Mary's
 does  not need to process or store the fuels on-eite, and no
 modification of  the facility is necessary.  St. Mary's has not
 submitted a Part A permit application or a 3010(a) notification.

 Discussion

      1.  Interim Status under Section 3004(q)(2)(C)

      The basis  for St. Mary's argument that it qualifies for
 interim statue  for its fuel-burning operation* ie that it we,e
 "in existence* on November 8, 1984, the date of the statutory
 amendment adding section 3004(q)  to RCRA, which was the statutory. .
 change subjecting the cement kiln to RCRA permit requirements
 as a  hazardous waste  incinerator.                             ,

     Although the language of section 3004(q)(2)(C) appears   .._,_.
 only  to require big city cement kilns to comply with incinerator"*
 standards, whether as an interim  status or permitted facility,
 comments by the author of this amendment on the floor of the
House indicate that the intent of this paragraph warn to prevent
 cement kiln operation in big cities until permitted am a hazardous,
 waste incinerator.  129 Cong. Rec. H 8154 (daily ed. October 6,
 1983)  (statement of Congressman Prost).  Petro-Chem thus argues
 that under section 3004(q)(2)(C), St. Mary's may not operate
 under interim status.

     However, on its  face, section 3004(q)(2)(C) only requires
 that big city cement kilns burning hazardous waste fuels "fully.
 complCy] with regulations... .which are applicable to incinerators-.
 Incinerators may operate under interim status standards.  Bothrnq
 in the statutory language suggests any limitation on the ability
of big city cement kilns to operate pursuant to interim status,
as would any other existing hazardous waste incinerator.

     Because the statutory langage is unambiguous with respect
to this issue, we believe that it is inappropriate in this context
to imply limitations solely on the basis of legislative history.
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Therefore, section  3004 (q) ( 2 ) (C ) does not prevent St. Mary's
fro*" ooeratinr pursuant  to  action  3005(e).

     2.   Interim Status  Reauirements -  "In Existence*

     The  first of three  interim status  recuirements  is that
St. Mary's -ust have been  in  existence  on the date of a statutory
or reoulatory chance that  subjects  it to RCRA permit requirements.
St. Mary's argues that the  change that  rendered St. Mary's sublet
to RCRA permitting  and thus eligible for interim status, was tne
enactment of section 3004(q)(2)(C ) on November 8, 1984 which made
certain kilns hazardous  waste  incinerators.

     Un^er 40 C.F.R. 260.10,  EPA define* "in existence" to
mean that either the facility  is "in operation" (i.e., actually
"treatinc, storing, or disposing of hazardous waste") or a
facility  "for which construction has commenced" on the relevant
date. }_/  Because St. Mary's  was not burning hazardous waste on
November  8, 1934, it must be  a  facility for which construction
had commcnceJ on that 'late  in order to  oualify as an existing
facility.

     Under section  ?f0.10,  a  facility is "under construction"
if it has received  all hazardous waste  control approvals necessary
for physical construction and either a  continuous, on-site
construction orogram has begun or the facility has accepted
substantial contractual  obligations for sucn construction, to be
conpleted within a  reasonable time.  St. Mary's did not need to
undertake any modification  of  its facility to convert to hazardous
waste fuels.  Although not  directly addressee by tne regulations,
EP* hes interpreted "under  construction* ilso to include facilities
that have completed construction on the relevant date.  See
46 Fed. Pen. 2344 (January  9,  1931).  Under this interpretation,
since no modification of the  facility was necessary, St. Mary's
I/   Section 260.10 only define* "existing facility* in terns
~"    of facilities in existence on November 19,  1980, tne only
relevant date for interim status prior to the Hazardous and
Solid Meet* Amendments of 1984  (HSWA).  HSWA amended section
300S(e) to allow facilities aleo to obtain interim status if
they were in existence on the date of statutory  or regulatory
chances which subject them to PCSA perxitting.   Although the
^rjencv has not yet made the conforming change to its regula-
tion* dofinina "existing facility* to reflect the HSWA change
to section 30CS(e), EPA interprets the sane definitions to
apply to all facilities "in existence* under section
-------
 may qualify as an  'existing  facility* if it can objectively
 demonstrate an intent  to handle hazardous waste within a reason-
 able time after November 8,  1984.  See j.d_.

     St. Mary's demonstration of  intent primarily .includes a
 1982 test burn of  hazardous  waste fuels as part of a secondary
 fuels prooram at the  facility and verbal agreements with the
 fuel suoplier, beginning prior to the test burn and continuing
 through 1986 when  they were  reduced to a written contract,
 signed in early 1987.  eased on this information, St. Mary's
 has objectively demonstrated an intent to handle hazardous
 waste within a reasonable tin* after November 8, 1984, and thus
 was an "existing facility' on that date.

     3.  Interim Status Requirements - Submission of
         3010(a) Notice

     The second condition for interim status is that a facility
 nust comply with any  applicable notification requirements under
 RCPA section 3010(a).  Because there are no 3010(a) notifica-
 tion requirements  applicable to St. Mary's, the facility has
 complied with this requirement.

     Petro-Chem argues that St. Mary's was required to file a
notification under the 1984 amendment to section 3010(a).
 Section 3010(a) requires notification by February 8, 1986 for
 any facility that  produces, burns, or distributes hazardous
waste fuel.  However, this requirement applies only to facilities
actually handling  hazardous waste fuel on November 8, 1984 (and
continuing to handle  sucn wastes on February 8, 1986; see 52
 Fed. Reg."11,819 (April 13,  1987)).

     This section  3010(a) notification is intended to be a
 •snapshot* of current hazardous waste fuel production, distri-
bution, end burning.  H.R. Rep. Mo. 198, 98th Cong., 1st Sess
40 (1983).  Contrary  to Petro-Chem's suggestion, EPA did not
 intend to imoly in the Aorll 13,  1987 notice clarifying this
requirement that 'under construction' facilities must provide
such notices.  Rather, tn« purpose of this notice was to clarify
that the) hazardous waste fuel notification requirement should be
 interpreted consistent with earlier section 3010(a) notifications,
and thus that the)  requirement applied only to facilities actually
handling the) hazardous waste on the relevant date.  See 45
Fed. Pea.  76,631 (November 19, 1980).

     4.  Interim Status Requirements - Submission of Part A

     The final condition for interim status is that the
facility submit a  Cart A permit application.  Under 40 C.F.R.
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                              - 5 -


section 270.10(e), •lifting facilities mist submit the Part A
no later than six months after the publication of regulation*
requiring compliance with technical standards, or thirty days
after they first becone subject to the technical standards.
whichever is first.

     Because St. Mary's has not filed a Part A permit application,
the facility does not now qualify for interim status.  However,
the regulations under section 270.10(e) are unclear about when
the submission of the Part A should have been made.  In fact,
a possible reading of the regulations suggests that the Part A
would not be due until 30 days after St. Mary's actually begins
burning hazardous waste fuels.  Although we believe that the
permit application was due within 30 days after St. Mary's
became subject to RCRA requirements on November 8, 1984, wet
acknowledge that there could be substantial confusion for
cement kilns subject to RCRA under section 3004(q)(2)(C) and
that the confusion may be attributable to serious ambiguities
in the interim status and hazardous waste fuels regulations
with respect to these facilities.

     As a result, EPA has decided to exercise its discretion under
section 270.10(e)(2) of its regulations to extend the date for
Part A submission by Federal Register notice for eeswnt kilne
subject to section 3004(q)(2)TCKBecause St. Mary's has met all
of the other requirements for interim status,, the facility will
be able to operate pursuant to section 3005(e) if it complies
with the Part A submission requirements in the Federal Register
notice, to be published in the next few days.

     As a matter separate from the ability of St. Mary's to
obtain interim status, the Agency believes that recycling,
reuse, recovery, and treatment of hazardous wastes are the
preferred management alternatives.  Cement kilns have demonstrated
that they can effectively recover energy from, certain hazardous
wastes and fuels containing hazardous waste while, at the same
time, greatly reducing the quantity of waate materials.  Therefore,
the Agency believes that if St. Mary's obtains interim status,
environmental benefits will result from the energy recovery
and waste treatment that will be performed, and the operation
of the facility will be held to the relevant interim status
and state standards for incinerators.
-------
     Thank you for the information you provided to the Agency
regarding the situation of St. Mary's cement kiln.  If you have
any further questions or comments on this issue, please contact
Frank "icAlister of the Office of Solid Waste (202-382-2223) or
Caroline rtenling of the Office of General Counsel (202-382-7706)

                                      Sincerely,
                                      Marcia E. Williams
                                      Director
                                      Office of Solid waste
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                                .i At. rnulCLfiOH AGENCY


                                                           1987(12}
                            3£? i  8 ..-.:
Honorable Martin Frost
House of Representatives
Washington, O.C.  20515

Dear Mr. Frosti

     The Environmental Protection Agency (EPA) has Bade a
final decision regarding St. Mary'* Peerless Ceaent Company.
The company requested an opinion on its qualification for
interim status to burn hazardous wastes as a secondary fuel
source in its cement kiln located in Detroit* Michigan,  In
your April 20, 1987, letter you expressed interest in the
Agency's decision and offered important background information
regarding the "Frost" amendment to the Resource Conservation  *
and Recovery Act (RCRA).

     The Agency hae decided to extend the date for submission
of RCRA Part A permit applications for cement kilns subject
to Section 3004(q)(2)(C) of RCRA (i.e., thoee kilns burning
hazardous waste fuels in municipalities of greater than
500,000 population).  As a result of this extension, cement
kilns subject to Section 3004(q)(2)(C) will be able to file
Part A permit applications and, if they comply with the
other requirements of Section 3005(e), will qualify for
interim status*  Based on the information we have received,
we believe that St. Mary's will qualify for interim status
if the company files a Part A permit application before the
new submission date.

     The Agency is taking this action pursuant to its authority
under 40 CFR 270.10(e)(2) because of confusion under SPA
regulations concerning whether and when the affected cement
kilns were required to file Part A applications.  In about
one week, EPA will announce its decision in a Federal Register
notice  (copy enclosed).  The new Part A submission deadline
will be six months from the date of publication of the notice.
-------
     In your letter, you raise the issue of whether, baaed
on legislative history* Section 3004(q)(2)(C) should be
interpreted to prohibit cement kiln operations in large
cities until they receive a final pernit as hazardous waste
incinerators.  However* on its face, Section 3004(q)(2)(C)
only requires that large city cement Kilns burning hazardous
waste fuels 'fully complCy] with regulations...which are
applicable to incinerators." The EPA regulations provide
that incinerators may operate under interim status standards.
Nothing in the statutory language suggests any limitation on
the ability of these cement kilns to operate pursuant to
interim status,  as is provided for any other existing hazardous
waste incinerator.

     Because the statutory language is unambiguous with
respect to this issue, we believe that it is inappropriate
in this context to imply limitations solely on the basis of
legislative history.  Therefore* we do not interpret Section
3004(q)(2)(C) as preventing St. Mary's from operating pursuant
to Section 3005(e).

     As a matter separate from the ability of St. Mary's to
qualify for interim status, the Agency believes that recycling,
reuse, recovery, and treatment of hazardous wastes are the
preferred management alternatives.  This preference was
embodied in the 1984 amendments to RCRA.  Cement kilns have
demonstrated that they can effectively recover energy from
certain hazardous wastes and fuels containing hazardous
waste while, at the same time, greatly reducing the quantity
of waste materials.

     I appreciate the background information that you provided
regarding the "Frost" amendment.  I assure you that the Agency
carefully considered your information when it reviewed St. Mary's
request.  If X can be of further assistance, please let me
know.

                              Sincerely,
                              J. Winston Porter
                              Assistant Administrator

Enclosure
-------
                                         9528.1987(14)
                         2 flff?
MEMORANDUM
SUBJECT: Regulation of Radioactive Mixed Waste at Department of
         Energy Facilities

FROM:    J. Winston Porter   -43/_£os* ^ ^2C
         Assistant Administrator

TO:      Lee A. DeHihns, III
         Acting Regional Administrator, Region IV

    I received your memorandum of October 23, 1987, in which you
requested Headquarters' assistance on two issues pertinent to
the regulation of mixed waste.

    You have requested Headquarters' opinion on whether or not
interim status will be made available to owners and operators of
facilities handling mixed waste.  Currently, we are developing a
notice for publication in the Federal Register which will
outline the applicability of interim status for owners or
operators of treatment, storage and disposal facilities (TSD's)
that manage mixed waste because they are now subject to the
Resource Conservation and Recovery Act.  This Notice will give
owners and operators of TSD's in authorized states six months
from the date of the state's authorization for mixed waste to
submit a Part A in order to qualify for interim status.
Similarly, owners and operators of TSD's in unauthorized states
win have six months from the date of publication of the Notice
to submit Part A permit applications and qualify for interim
status.

    You also questioned the applicability of the totally
enclosed treatment unit and the wastewater treatment exemptions
to the DepertiMnt of Energy's Savannah River Plant radioactive
mixed waste operations.  Headquarters staff are currently
reviewing the intent and applicability of these two exemptions.
I anticipate the assessment will not be completed by
November 15, 1987.  However, it is our objective to provide you
with a final Headquarters opinion by November 30, 1987.  If you
need further details, please contact Betty Shackleford, of my
Staff, on FTS 382-2221.
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                                                           9528.
  *         UNITED STATE. -.NVI'-ONh- .'NTAL PROTECTION AGENCY

 y                    WASHINGT',;,-!. O.C. 20460
                                                               1987(15)
                                              SO-10 WASTE AND c
MEMORANDUM


SUBJECT:  Interim Status Expansion to Add an  Incinerator
                                         * i
                                                 \ .   ^-^—
FROM:     Marcia Williams, Director      (V'L'.A'-~ -~
          Office of Solid Waste  (WH-562)  •

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

     This is in response to your memo of October 22,  1987
regarding a request from U.S. Pollution Control Incorporated
(USPCI) to the State of Oklahoma for approval  of an interim
status expansion to add an incinerator at its  Lone Mountain,
Oklahoma facility.  You requested an opinion on the question of
whether an incinerator may be added to a facility as  a change in
interim status under the authority of 40 CFR 270.72(c).

     Section 270.72(c) allows EPA or an authorized state to
approve the addition of a new unit at an interim status facility
if the change is determined to be necessary to comply with a
Federal, State, or local requirement.  On its  face, this
provision authorizes the addition of an incinerator as a change
in interim status; however, section 270.72 allows the Director
to exercise discretion in approving or disapproving changes
under that section.  Generally, we have significant concerns
about new incinerators being added as changes  in interim status
without the benefits of a trial burn and public participation.
While we do not believe that the Director may  be arbitrary in
deciding to approve or disapprove a change in  interim status, we
believe that it is important to consider protection of human
health and the environment and the rights of the public, and
that it is generally unwise to allow operation of a new
incinerator without a trial burn and opportunity for  public
comment.

     As an authorized State, Oklahoma may implement its own
hazardous waste program and interpret its own  regulations.
While the State of Oklahoma has the authority  under section
270.72(c) to allow addition of this incinerator as a  change in
interim status, we believe that the preferable approach would be
to include the proposed incinerator in the ongoing permit
process for USPCI.  Since the facility's permit is scheduled for
issuance in 1988, the incinerator activity could be pursued as
-------
a  subsequent permit modification.  Although the proposed
incinerator would not be subject to the 1989 permitting
deadline for incinerators, I would recommend that the
Regional Office work closely with the State to establish a
priority for developing the incinerator portion of the
permit.

     If you have any questions about this issue, please
contact Frank McAlister (FTS 382-2223) or Barbara Foster
(FTS 382-4751)  of the Permits Branch.
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                                                    9528.1987(16'
             RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                           NOVEMBER 87
1.    Section 270.72 Changes in Interim Status

     A container storage facility has interim status.  The owner
     wishes to sell one-half of the container storage facility to
     a person who wishes to set up a solvent recovery operation
     on the site.  The solvent recovery operator wishes to gain
     interim status for storage by doing this.   The old owner
     will have no operational control or interest in the half of
     the facility that is sold.  The area will  now be two
     facilities under completely separate ownership and
     operational control.  Is this allowed under Section 270.72,
     changes during interim status?

          Yes.  There is nothing in the regulations to preclude
          an existing facility with interim status from selling
          off part of the facility and transferring interim
          status for that part of the facility.   The new owner
          operator will have to come into compliance with Part
          265, and among other things develop its own closure
          plan, meet all of the financial responsibility
          requirements and submit a new Part A  for his part of
          the facility.  Any changes the new owner/operator
          wishes to make at the interim status  facility will have
          to satisfy Section 270.72, which restricts both the
          types of changes that can be made and the dollar
          amounts of such changes (i.e., the 50% reconstruction
          limit).

     Source:    Fred Chanania   (202)  382-7706
     Research:  Randy Eicher
        This has been retyped from the original document.
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              U>  .0 STATIS INVIRONMINTAL PIOTIC.  AGENCY       9 528.1988( 02)


                             m I I 1988
MEMORANDUM

SUBJECT:  Redesignation of Surface Impoundments as Landfills
          During Interim Status

FROM:     Bruce Weddle, Director
          Permits and State Programs Division  (WH-563)

TO:       Robert Greaves, Chief
          Waste Management Branch  (3HW30)
          Region III


    This memorandum is in response to your request of April 4,
1988 for Headquarters policy on a proposal by Union Carbide to
redesignate as a landfill a unit that is operating as an interim
status surface impoundment.

    As we understand, the unit at the Sistersville facility in
West Virginia has been operating as a surface  impoundment since
1978, and has a bottom liner system that does not comply with
minimum technology requirements.  As such, under -3005(j)(l) of
RCRA, the unit must either retrofit or stop receiving hazardous
wastes by November 8, 1988.  Facilities that cease to receive
hazardous wastes in order to comply with 3005(j) must comply
with the applicable closure requirements of 40 CFR Part 264 or
265.  Union Carbide, however, proposes to stabilize the liquids
in the impoundment, allow the stabilized wastes to remain,
redesignate the unit as an interim status landfill, and continue
to receive hazardous wastes.

    40 CFR 270.72(c) allows for changes during interim status in
the processes for the treatment, storage, or disposal of
hazardous waste only under the following two circumstances:

    (1)  It is necessary to prevent a threat to human  health or
    the environment because of an emergency situation, or;

    (2)  It is necessary to comply with Federal regulations  or
    State or lacal laws.
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                              - 2 -
We agree with the previous evaluation of the Union Carbide
proposal (Humphries letter of February 5, 1988 to Robert Jelacic
of the West Virginia DNR), that neither change in interim status
criterion is satisfied.  As you point out, however, West
Virginia's authorized regulations [West Virginia Administrative
regulations, section 11.3.3.c] allow a change in a process
during interim status if either of the two Federal criteria are
met or if "proposed changes are demonstrated to result in safer
or environmentally more acceptable processes."  Because West
Virginia is an authorized state, Union Carbide could
theoretically change the process in the affected unit if such a
demonstration is made to the satisfaction of the authorized
State agency.

    In order to comply with the requirement of section 11.3.3.C,
Union Carbide would have to demonstrate that a hazardous waste
landfill operating with a liner system that does not meet
minimum technology requirements is safer or more environmentally
acceptable than a closed or retrofitted surface impoundment.  We
do not believe that such a demonstration is possible, and that
the facility could .not therefore meet the State requirements.

    If you should have any further questions, please call Dave
Eberly of my staff on (FTS) 382-4691.


cc:  Suzanne Rudzinski, PSPD
     Matt Hale, PSPD
     Frank McAlister, PSPD
     Alex Wolfe, PSPD
     Les Otte, WMD
     Fred Chanania, OGC
     Dave Eberly, PSPD
     Mike Freiheiter, Region III
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                                                                  9528.1988(33)
              RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                MAY 88

5. Retrofitting Interim Status Surface Impoundments

 Section 3005(j) requires surface  impoundments  that were in existence  on
 November 8, 1984 and eligible for the authorization to operate under interim
 status to meet the minimum technological requirements of Section 3004(o)(l)(A)
 by November  8, 1988.  The minimum technological requirements consist of  the
 installation of double liners and leachate collection systems.  These requirements

 must be met unless an exemption was requested and  approved under Section
 3005(j) or Section 3004(o)(2).

 The owners  or operators of interim status  surface impoundments without
 approved exemptions   who  do  not retrofit  per  Section  3005(j)  by
 November 8, 1988 must  cease  the  receipt of hazardous  wastes into  those
 impoundments by November 8, 1988. The closure of these impoundments must
 then proceed in accordance with 40 CFR Part 264/265 Subpart G.

 An owner of three interim status surface impoundments does not wish to
 retrofit  the  units.    He  therefore  plans to cease  receiving  wastes  on
 November 8, 1988 and proceed with the closure. As part  of closure activity,  the
 owner proposes to remove the liquid waste from two of the  impoundments,
 stabilize the  waste, and dispose of it in the  third impoundment.  This third
 impoundment would then  be closed as a  landfill and provided with post-closure
 care while the other  two  impoundments  will be "clean-closed"  per Section
 265.228.

 Can the owner change the facility  process  and convert the impoundment to a
 landfill?

 .1 the process can be changed, would the landfill be considered an existing unit,
 replacement unit, or a new unit?

    The owner of the facility may change the facility process and convert the third
    impoundment to a landfill under limited circumstances. However in order to
    do so, the  requirements in Section 270.72(c) must be met.  Under Section
    270.72(c), an owner of an interim status  facility may change the treatment,
    storage or disposal  processes  of the facility if he submits a revised Part A
    application, along with the justification explaining the need  for the change.
    The change may be approved under only two limited circumstances: (1) It is
    necessary to prevent a threat to human health or the environment because of
    an emergency situation; or (2) It is necessary  to comply with Federal
    regulations or State or local laws.

    Furthermore,  if this "conversion"  amounts  to reconstruction, Section
    270.72(e)  would prohibit the change.  Reconstruction is defined in Section
    270.72(e) as occurring when the capital investment in the changes exceeds fifty
    percent (50%) of the capital cost of a comparable entirely new hazardous waste
    management facility.
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5.  Retrofitting Interim Status Surface Impoundments (Cont'd)
    For circumstances that allow a process change  under this very restrictive
    requirement, Reauthorization Statutory Interpretation #5D  states that the
    impoundment/landfill would be considered an existing unit.

    However, if the owner of the unit removes the waste that is already in the
    impoundment  stabilizes  the  waste,   and places  it  back  into  the
    impoundment/landfill  along  with  the  waste  from  the  other  two
    impoundments,  the unit would be considered a replacement unit.  As such,
    the landfill would need to be in compliance with the minimum technology
    standards of Section 3004(o) (RCRA/Superfund Hotline Monthly Report,
    December 1985). Also if the  addition of waste into the unit exceeds the level
    designated  in  the facility's  Part  A application, that portion  of  the
    impoundment/landfill would be considered an expansion of an existing unit
    and  would  be  subject to the  requirements  of Section 3004(o)  (Section
    265.301 (a)).
 Source:
 Research:
Pamela Savage
Dave Eberly
Alex Wolfe
Chris Bryant
(202) 382-7700
(202) 382-4691
(202) 382-2227
                    Hazardous Waste
                                           Filter Medium
                           Primary and Secondary
                           Leachate Collection and
                             Removal System
                                                            Drainage
                                                            Pipo
                                            Leachate Collection
                                                System Sump
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                                                 9528.1988(05)
               RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                               OCTOBER 88

  1. Changes During Interim Status  (Revised Question/Answer from September 1988
                                   Report)
  An interim status facility owner or operator wants to retrofit his hazardous waste
  tank system in order to comply with the secondary containment requirements in
  40 CFR Section 265.193.  Is this retrofitting activity considered  a change  during
  interim status and thus prohibited if the cost exceeds 50 percent of what a  new
  facility would cost (under the 50% reconstruction limit in Section 270.72)?

    According to 40 CFR Section 270.72(e) (as amended in the July 14,1986 Federal
    Register. 51 £R 25486) changes made solely for the purpose of complying with
    the requirements of Section 265.193 for tanks and ancillary equipment are not
    subject to the reconstruction limit in Section 270.72(e).  However, Section
    270.72(e) was also amended in the July 8,1987 final rule (see 52 ER 25792, July
    8,1987 Federal Register) to include changes solely for purposes  of complying
    with the land disposal restrictions in 40 CFR Part 268 or RCRA Section 3004.
    When  Section  270.72(e) was amended,  the original  language regarding
    changes made in order to comply with Section 265.193, was inadvertently left
    out. The Agency will correct this inadvertent omission in the near future.

Source:    Chester Oszman  (202) 382-4499
Research:  Joe Nixon
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                   UNITED STATES ENVIRONMENTAL PROTECTION AGENC-  9528>198fl(°6>
                              WASHINGTON, D.C.  20460
                                                               OFFICE OF
  ADO  ' C . ~ '•                     '                       50UO WASTE AND EMERGENCY P.ESPQ',
  rii i .  . ^/ JC„


MEMORANDUM


SUBJECT:  Call-in of Storage and Treatment Applications

FROM:     Sylvia  K.  Lowrance,  Director \  ,     .   \
          Office  of  Solid Waste      -*:-  f»>   ,^   ••-^-~-	

TO:       Waste Management Division Directors
          Regions I-X


    Section  3005(c)(2)(C)  of RCRA provides  a statutory deadline by
which  interim  status treatment and storage  facilities must submit their
Part  B  permit  applications or their interim status  will terminate on
November 8,  1992  if  EPA has not issued a  permit.  The deadline for
storage and  treatment facilities  to submit  their  permit applications is
November 8,  1988.

    You should be aware,  however,  that these deadlines apply only to
facilities and units that were in interim status  on November 8,  1984.   A
unit handling  temporarily excluded waste  on November 8,  1984 or a unit
added to an  interim  status facility after this date through a change in
interim status would not be subject to the  1988 application deadline or
the 1992 permitting  deadline.

    In order to give facilities subject to  the 1988 deadline a full
six-month period  to  prepare and submit their applications (at least for
affected units),  I urge you to send letters notifying these facilities
of the deadlines,  and reminding them that they should submit a Part B
application  if the facility (or unit)  intends to  continue operating
after November 8,  1992.   If the facility  (or unit)  plans to close prior
to November  8, 1992,  you should consider  reguesting a written confirma-
tion of intent to  close in lieu of a Part B application.   For closing
facilities,  it would be useful to  remind  them that  they  must submit
their closure  plan for  approval at least  45 days  prior to the date  that
closure will begin.   (Section  265.112(d)(1)  reguires owner/operators to
submit closure plans 45  days before they  begin final closure of  a
facility with  only tanks,  container storage,  or incinerator units.)
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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 requests
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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                                                                 9528.1989(11)
             RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                               JULY  89
4.  Changes to Interim Status Facilities

 An interim status disposal facility with an existing incinerator wants to build a
 new incinerator.  Can this be done  and if so what changes would have to be
 made to the Part  A  permit application?

    Amendments  to the RCRA regulations governing  changes during interim
    status were promulgated in the March 7,1989 Federal Register (54 £E 9596).
    An increase in design  capacity of processes, which  includes the addition of
    new units of the same type that are already present at the facility, is possible if
    the  owner or operator of the facility complies  with the requirements of
    Section 270.72(a)(2) and  the change  is not otherwise prohibited by the
    reconstruction limit of Section 270.72(b). The owner or operator must submit
    a revised Part A permit application along with a justification explaining the
    need for the change and receive the Director's approval.  The Director can
    approve the change if there is a lack of available treatment, storage or disposal
    capacity at other hazardous waste management  facilities or the change  is
    necessary  to  comply with a  Federal, State or local  requirement. (Section
    270.72(a)(2)>

    The changes  described above may not be made if prohibited by the 50%
    reconstruction limit. (40 CFR Section 270.72(b»  EPA anticipates that the
    construction of  most incinerators will be prohibited by the reconstruction
    limit and  facilities will have to obtain  permits in order to make  these
   . changes.   Additionally, the  Agency  has  significant concerns about new
    incinerators being added as changes in  interim status without the benefits of a
    trial burn and public participation.  Therefore, EPA prefers that such units be
    subject to public hearings and comply with the incinerator standards of Part
    264SubpartO.

 Source:        Barbara Foster     (203) 382-4751
 Research:      Ren* LaVallt    (202)382-3112
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                                                                      9528.1989(13)

  \          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
  f                        WASHINGTON, O.C.  20460
                                                                  OFFICE OF
                                                       SOLIO WASTE AND EMERGENCY RESPONSE
 OCT 15,  1989
Subject:  Clarification of Interim Status Qualification Requirements for NRC
          Licensees Managing Radioactive Mixed Waste

Dear NRC Licensee:
     I am writing this Letter to you because as a NRC licensee it is possible
that your facility generates or otherwise handles radioactive mixed wastes
(i.e., wastes that are both radioactive and chemically hazardous).   Facilities
that handle mixed wastes are subject to regulation by both the NRC (or the
Department of Energy) and che U.S. Environmental Protection Agency (EPA).
Consequently, your facility may need to comply with EPA standards and
requirements, including obtaining a permit granted by EPA.

     The permit process can be quite lengthy.  As a result, EPA has created
provisions and requirements for facilities awaiting final decision on their
permit application.  The main provision is one of qualifying for interim
status.  Under interim status, you may continue your hazardous waste (i.e.,
mixed waste) activity uncil a final decision is made on the permit.  Applying
for a permit and gaining interim status is an important step in complying with
EPA regulations regarding mixed waste.

     Below, I describe the requirements for obtaining interim status in
unauthorized States.  Pleas* read this material to determine if and how your
facility may need to comply with interim status requirements.


Background

     On July 3, 1986, EPA issued a notice in the Federal Refister  (51 fB
24504) clarifying eh* applicability of the Resource Conservation and Recovery
Act (RCRA) Co the management of radioactive mixed waste.   (Mixed waste is
defined as waste that satisfies the definition of radioactive waste subject  to
the Atomic Energy Act (AEA) and contains hazardous waste  that either (1)  is
listed as a hazardous waste in Subpart 0 of 40 CFR Part 261 or (2) exhibits
any of the hazardous waste characteristics identified in  Subpart C of 40  CFR
Part 261.  The hazardous component of mixed wast* is regulated under RCRA.)

     Since that time, EPA has become aware that many handlers of radioactive
mixed wast* have been substantially confused about the regulatory  status  of
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                                      -2-
 cheir  facilities,  because  EPA's  Federal  Register notice addressed only RCRA's
 applicability  to  treatment,  storage,  or  disposal facilities  (TSDF's) handling
 radioactive mixed waste, and not the  issue  of  interim status.  Consequently,
 many owners and operators  of these  facilities  are uncertain  about how to
 qualify  for interim  status if  they  are handling radioactive  mixed waste.

     Therefore, EPA  issued another  notice  in the Federal Register on September
 23, 1988,  (53  FR.  37045)  that clarified the  requirements for  facilities that
 treat, store,  or  dispose of radioactive  mixed  waste  to obtain  interim status
 pursuant  to Subtitle C of  RCRA.   I  have  enclosed a copy of that notice with
 this letter and summarized below its  key points.


 EPA Identification Number

     All  treatment,  storage, and disposal  facilities and persons generating or
 transporting radioactive mixed wastes must  obtain an EPA Identification
 Number.   This  number is obtained by completing an EPA Notification Form 8700-
 12 and forwarding  it to the  Regional  EPA Office serving the  area in which the
 relevant  hazardous waste activity is  located (see enclosed map and list).
 TSDF's, in addition, must  obtain interim status to continue  handling mixed
 waste until a  final permit is  received.


 Interim Status

     Section 3005(a) of RCRA prohibits treatment, storage, or  disposal of
 hazardous waste without a  RCRA permit after November 19, 1980.  This same
 section of RCRA, however,  allows a  facility to continue treatment, storage, or
 disposal  under interim status  pending a  final  decision on its  permit
 application.
State Authorization

     The RCRA program is designed  to be  implemented by  the States, and EPA has
established an authorization process by  which  individual State agencies may
take responsibility for the RCRA program in  their State.  Currently, 44 States
and Territories are authorized  for EPA's base  RCRA Program.1  Authorized State
regulations «uat be at lease equivalent  to the Federal  RCRA regulations, and
may be more stringent.  For States that  are  not authorized to implement the
     1   The authorized States and Territories  are:  AL, AZ, AR,  CO,  DC,  DE,
FL. GA, Guam, IL. IN, KS, KY, LA, MA, MD. ME, MI, MO, MN, MS, MT,  NC,  ND,  NE,
NH, NJ, NM, NV, NY. OK, OR, PA, RI,  SC,  SD, TN, TX, UT, VA, VT. WA, WI, and
WV.  Also, four of these States, CO, SC, TN, and VA, have authorization for
their mixed waste programs.
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                                     -3-
RCRA program, EPA implemencs the Federal RCRA program directly.2
Consequently, requirements may be different for facilities in authorized and
non-authorized States.

     NRC licensees in RCRA authorized States need to check with their State
authorities to determine the exact requirements they must comply with in order
to initiate a permit application and obtain interim status.  The interim
status requirements facing NRC licensees in non-authorized States are
summarized below.
Interim Status Requirements for Facilities in Non-Authorized States and Trust
Territories
          Facilities must be in existence as of July 3, 1986.  (EPA considers
          any facility in operation or under construction to be in existence.)

          Owners and operators of treatment, storage, and disposal facilities
          muse submit Part A of their permit applications (as described in the
          Code of Federal Regulations, Title 40, Part 270, Sections 270.10 to
          270.73) or a modification to an existing Part A permit application
          no later than March 24, 1989, in order to obtain interim status.

          Owners and operators of land disposal facilities handling
          radioactive mixed waste must submit Part B of their permit
          applications as well as a certificate of compliance with applicable
          RCRA ground-water monitoring and financial assurance requirements by
          September 24,  1989.

          Facilities other than land disposal facilities must comply with
          their Regional EPA Office's deadline to submit Part B of their
          permit applications.
     2   Currently, 12 States and Territories  do not have  authorization by  EPA
for their hazardous waste program:  AK, American Samoa,  CA,  CT,  HI,  IA,  ID,
Marianna Islands. OH, PR, VI, and UY.
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                                      -4-
      I hope this letter eliminates much of the confusion regarding interim
status requirements for TSDFs handling radioactive mixed waste.  I encourage
each  of you to read the enclosed Federal Register, notice carefully, as it
explains each of the above requirements in detail.  Please do not hesitate to
contact EPA with any questions regarding this matter.  Questions should be
addressed to your EPA Regional Office or Ms. Betty Shackleford, Office of
Solid Waste (OS-342),  U.S. Environmental Protection Agency, 401 M Street
S.W., Washington, D.C.  20460, (202) 382-2210.
                                          Sincerely yours,


                                          Joseph Carra, Director
                                          Permits and State Programs Division


Enclosures
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^osrv^                                                 9528.1990(01

              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      '                   WASHINGTON, D.C. 20460
                             APR  2   1990
                                                           OFFICE OF
                                                  SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

TO:       Patrick M. Tobin,  Director
          Waste Management Division
FROM:    //Toe Carra,  Director
         w Permits And State  Programs  Division

SUBJECT:  Changes During  Interim Status

     In your memorandum of March 2, 1990,  you recommend that
§270.42.72(a)(1), which addresses the addition of new waste
streams at interim  status facilities,  should be amended to      \
require a justification of need and approval by the Director
because of a lack of  available capacity  or the change is
necessary to comply with  a federal, state,  or local requirement.
We appreciate your  concern regarding  this  matter in light of the
recent waste listings and the new Toxicity Characteristic.

     Frank McAlister  in my Division recently spoke with Betty
Willis of your staff  regarding the specific concerns of Region 4.
The Region has been receiving inquiries  from consultants and
facilities who are  investigating the  possibility of constructing
units that would manage nonhazardous  waste that shortly
thereafter would be listed or characterized as hazardous.  Those
facilities then  would be  able to gain interim status as an
"existing facility".   Under  the current  regulations
(§270.42(a)(1)), the  facility could then amend its Part A permit
application to treat  any  other hazardous waste without first
gaining approval from the Agency as long as no additional
capacity or a change  in process is involved.   Betty Willis
expressed concern over this  particular situation and the lack of
an Agency sole in approving  such requests.
           i
     We appreciate  the concern you have  expressed regarding this
situation.  OSWTrill  be considering amendments, such as the one
you have recommended,  to  the permitting  regulations, and will
contact you for  additional information at  that time.  In any
case, it should  be  noted  that authorized states have the
discretion to amend their hazardous waste  management regulations
to make them more stringent  if they believe there is a
programmatic need to  do so.
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                              - 2 -

     ThanJc you for bringing this matter to our attention,  if you
have additional questions or observations on this subject, please
have your staff contact Wayne Roepe (FTS-475-7245) or Frank
McAlister (FTS-382-2223).

cc:  Denise Keehner
     Frank McAlister
     Wayne Roepe
     Betty Willis, Region 4
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                                                       9528.1990(02)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. O.C. 20460
                             JUL  I I  1990
                                                      OFFICE Of
                                             SOLID WASTE ANO EMERGENCY RESPONSE
Richard E. Hill, Director
Operations, Planning and Development
USPCZ
515 West Greens Road
Suite 500
Houston, Texas  77067

Dear Mr. Hill:

     In your May 11, 1990, letter concerning the  Toxicity
Characteristic  (TC) you requested clarification on  certain issues
raised in the March 29, 1990,  Federal Register notice.   The
following is a response to those issues and I hope  it will assist
you in resolving some of USPCI's concerns.

     Your first question asks  whether facilities  (exclusive of
incinerator and land disposal  facilities) managing  newly
identified TC hazardous wastes would lose interim status unless
they have been granted a permit by November 8, 1992.  EPA
believes that these facilities are not subject to the
November 8, 1992, loss of interim status deadline.  As  you point
out, this deadline applies only to facilities that  had  interim
status on November 8, 1984.  Thus, such facilities  managing newly
identified hazardous waste as  a result of the TC  will not
automatically lose interim status on November 8,  1992.

     The only facilities that  are potentially subject to loss of
interim status are newly regulated interim status land  disposal
facilities or interim status land disposal facilities with units
that become newly regulated because of the Toxicity
Characteristic.  These land disposal facilities must  comply with
the certification and Part B submission deadlines in  40 CFR
270.73(d) and 270.73(e) or interim status will terminate twelve
months after the TC effective  date.  This documentation must be
received by the appropriate EPA Regional Office no  later than
September 29, 1991.  In addition, under 40 CFR 270.42(g)(1)(v),
newly regulated land disposal  units at permitted  facilities will
lose authority to operate if the facility fails to  comply with
the appropriate certification  requirements.
                                                           fnatd at Rtc?cUd Faptr
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     Second, you inquire about whether Federal or State interim
status standards apply to newly regulated facilities.  A facility
which has gained interim status for the new TC waste is subject
to the Federal requirements under 40 CFR Part 265 until such time
as the State is authorized for the TC.  (See table V-2 at 55 £&
11848, March 29, 1990.)  If the facility wants to modify its
operations during interim status, then it must follow the
procedures in 40 CFR 270.72, and submit all Part A revisions to
EPA.  If prior approval is required for a particular change, then
EPA would be the approving agency.

     In authorized States, EPA directly implements only those
aspects of the Federal RCRA program that, by statute or
regulation, take effect in all States.  Such Federally-
implemented provisions are generally limited to HSWA requirements
and prohibitions such as land disposal restrictions, minimum
technology requirements, and HSWA waste identifications.  For
example, an interim status facility regulated by EPA because of
the TC rule could apply to EPA for: 1) additional TC waste codes
not on the original Part A; 2) other HSWA waste codes that the
State is not authorized for; 3) capacity increases or process
changes for TC or other HSWA wastes; or 4) other HSWA-related
facility change (e.g., new process needed to provide BOAT
treatment).

     Of course the addition of a new, non-HSWA waste code would
be subject to regulation by the authorized State and not by EPA.
Note that  if the State has not yet adopted the TC rule and a
facility with Federal interim status due only to TC wastes wants
to make changes to add non-HSWA wastes regulated under the
authorized State program, this may be viewed as a "new" hazardous
waste operation since the facility would not have interim status
under State law.  In this case, the State might require a RCRA
permit prior to receipt of the waste.

     Finally, if a facility commences treatment, storage, or
disposal activity after June 27, 1990, but before September 25,
1990, that facility is not prohibited from qualifying for interim
status because it did not or could not notify prior to
June 27, 1990.  In such a case, a Section 3010 notification is
not required for obtaining interim status, see 40 CFR
270.70(a)>(l) and the preamble discussion provided at 45 FR 76631,
November 19, 1980.  However, the facility would be required to
submit a Part A permit application in accordance with the
deadline specified in 40 CFR 270.lO(e).
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     If you have any questions or would like to discuss these
issues further, please contact Steve Cochran at (202) 475-8551,
or Frank McAlister at (202) 382-2223 of my staff.


                                   Sincerely,
                                   Sylvia K. Lowrance
                                   Director
                                   Office of Solid Waste
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                                                      9528.1990(03)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                             JUL I I  1990
                                                           OF

                                             SOLID WASTE AND EMERGENCY RESPONSE
Richard E. Hill, Director
Operations, Planning and Development
USPCI
515 West Greens Road
Suite 500
Houston, Texas  77067

Dear Mr. Hill:

     In your May 11, 1990, letter concerning the Toxicity
Characteristic  (TC) you requested clarification on  certain  issues
raised in the March 29, 1990, Federal Register notice.   The
following is a response to those issues and I hope  it will  assist
you in resolving some of USPCI's concerns.

     Your first question asks whether facilities  (exclusive of
incinerator and land disposal facilities) managing  newly
identified TC hazardous wastes would lose interim status unless
they have been granted a permit by November 8, 1992.  EPA
believes that these facilities are not subject to the
November 8, 1992,  loss of interim status deadline.  As you  point
out, this deadline applies only to facilities that  had interim
status on November 8, 1984.  Thus, such facilities  managing newly
identified hazardous waste as a result of the TC will not
automatically lose interim status on November 8, 1992.

     The only facilities that are potentially subject to loss of
interim status are newly regulated interim status land disposal
facilities or interim status land disposal facilities with  units
that become newly  regulated because- of the Toxicity
Characteristic.  These land disposal facilities must comply with
the certification  and Part B submission deadlines in 40  CFR
270.73(d) and 270.73(e) or interim status will terminate twelve
months after the TC effective date.  This documentation  must be
received by the appropriate EPA Regional Office no  later than
September 29, 1991.  In addition, under 40 CFR 270.42(g)(1)(v),
newly regulated land disposal units at permitted facilities will
lose authority to  operate if the facility fails to  comply with
the appropriate certification requirements.
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     Second, you inquire about whether Federal or State interim
status standards apply to newly regulated facilities.  A  facility
which has gained interim status for the new TC waste is subject
to the Federal requirements under 40 CFR Part 265 until such time
as the State is authorized for the TC.  (See table V-2 at 55 ZB
11848, March 29, 1990.)  If the facility wants to modify  its
operations during interim status, then it must follow the
procedures in 40 CFR 270.72, and submit all Part A revisions to
EPA.  If prior approval is required for a particular change, then
EPA would be the approving agency.

     In authorized States, EPA directly implements only these
aspects of the Federal RCRA program that, by statute or
regulation, take effect in all States.  Such Federally-
implemented provisions are generally limited to HSHA requirements
and prohibitions such as land disposal restrictions, minimum
technology requirements, and HSWA waste identifications.  For
example, an interim status facility regulated by EPA because of
the TC rule could apply to EPA for: 1) additional TC waste codes
not on the original Part A; 2) other HSWA waste codes that the
State is not authorized for; 3) capacity increases or process
changes for TC or other HSWA wastes; or 4) other HSWA-related
facility change  (e.g., new process needed to provide BOAT
treatment).

     Of course the addition of a new, non-HSWA waste code would
be subject to regulation by the authorized State and not  by EPA.
Note that  if the State has not yet adopted the TC rule and a
facility with Federal interim status due only to TC wastes wants
to make changes to add non-HSWA wastes regulated under the
authorized State program, this may be viewed as a "new11 hazardous
waste operation since the facility would not have interim status
under State law.  In this case, the State might require a RCRA
permit prior to receipt of the waste.

     Finally, if a facility commences treatment, storage, or
disposal activity after June 27, 1990, but before September 25,
1990, that facility is not prohibited from qualifying for interim
status because it did not or could not notify prior to
June 27, 1990.  In such a case, a Section 3010 notification is
not required for obtaining interim status, see 40 CFR
270.70(a)(1) and the preamble discussion provided at 45 IB 76631,
November 19, 1980.  However, the facility would be required to
submit a Part A permit application in accordance with the
deadline specified in 40 CFR 270.10(e).
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     If you have any questions or would like to discuss these
issues further, please contact Steve Cochran at (202) 475-8551,
or FranX McAlister at (202) 382-2223 of my staff.


                                   Sincerely,
                                   Sylvia K. Lovrance
                                   Director
                                   Office of Solid Waste
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                                                         9528.1991(01)
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D.C.  20460
                               AUS  7 1991
                                                            OFFICE OF
                                                    SOLID WASTE AND EMERGENCY RESPONSE
Samuel I. Gutter
Sidley & Austin
1722 Eye Street, N.W.
Washington, D.C.  20006

Dear Mr. Gutter,

     This letter is in response to your  letter of June 27,  1991
to Sylvia Lovrance, in which you  seek clarification of the
application of the Boiler and  Industrial Furnace (BIT)  rule to
newly regulated units at interim  status  facilities.   In your
letter, you ask questions regarding the  criteria a unit must meet
to gain interim status as a newly regulated  unit.   First, you ask
what constitutes a "newly regulated" unit under §270.72(a)(6).
Then you ask what requirements a  unit must meet to qualify  for
interim status as a newly regulated unit.  Finally,  you ask if
construction may commence after the effective  date of the rule.

     The criteria for a unit to gain interim status are the same
for an interim status facility and a newly regulated facility.  A
"newly regulated" unit under §270.72(a)(6) is  one which is
subject to the RCRA permitting requirements  for the first time as
a result of a rulemaking.  An  example of a newly regulated  unit
is a boiler or industrial furnace that will  become subject  to the
RCRA permitting requirements on the effective  date of the BIF
rule.

     To obtain interim status  under §270.72(a)(6),  a newly
regulated unit such as a BIF must J»eet the definition of an
^existing hazardous waste management facility" as defined under
§260.10.  This definition does not necessarily require that
physical construction of a unit be underway  before the effective
date of the BIF rule.  However, if construction of a BIF unit has
not begun by August 21, 1991,  the facility must meet the criteria
in the definition of "existing facility," including (1)  have
obtained the Federal, State and local approvals or permits
necessary to commence construction and  (2) have entered into
contractual obligations — which  cannot  be canceled or modified
without substantial loss ~ for physical construction of the
facility (or unit) within a reasonable time.

     For the BIF rule, EPA Regional offices  will be making  the
determinations regarding interim  status.  These decisions are
necessarily made on a case-by-case basis, considering the
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                              - 2 -
specific facts of a particular site.  Therefore, I recommend that
you contact the appropriate EPA Regional office to discuss
specific facilities that may be subject to the. BIF rule.

     I hope that this response answers your questions.  If you
require further clarification, please call Wayne Roepe  (202) 475-
7245 of my staff.
                  *.•
                              Sincerely,
                              Frank McAlister, Chief
                              Permits Branch
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 ^  »V
„•  ^^ *v                                              9528.1991(02)
5 J5L 1        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON. D.C. 20460
                             PPR 2 7 IQQI                     °FFICE
                             1 fc-w fc • '**l             SOLID WASTE AND CMC
                                                    SOLID WASTE AND EMERGENCY RESPONSE
 Mr.  George Sullivan
 Chairman,  Recycling Sciences
   International, Inc.
 30 South Wacker Drive
 Suite 1420
 Chicago, Illinois  60606


 Dear Mr. Sullivan:

      This letter .responds to the inquiry made by you and your
 company's legal counsel whether several hazardous waste treatment
 facilities that employ a single mobile treatment unit may qualify
 for interim status.  Your firm, Recycling Sciences International,
 Inc. (RSI) owns several waste storage and treatment facilities  at
 different locations, but employs only one mobile treatment unit .
 among these various facilities, transporting the treatment undt_*r-.
 from one facility to another.  You also indicated that RSI's
 mobile treatment unit accepts only organic-contaminated soils
 that are newly regulated as hazardous waste under the revised
 toxicity characteristic (TC) rule (55 £& 11798, March 29, 1990),
 and that RSI has applied for interim status to EPA for facilities
 in Arizona, Pennsylvania, Michigan, and Mississippi.

      As you are aware,. the TC rule was promulgated by EPA under
 the authority of the Hazardous and Solid Waste Amendments  (HSWA)
 and therefore is implemented by EPA in all states  (until the
 states become authorized for the TC rule).  I have addressed your
 specific questions below:

 1.   How does a facility qualify for interim status under the TC
      rule?

      There are three basic prerequisites for obtaining interim
 status pursuant to § 3005 of RCRA:

      (a)  The facility must be in existence on the effective date
           of statutory or regulatory amendments that render the
           facility subject to the requirement to have a RCRA
           permit  (5 270.70(a));

      (b)  The facility must have complied with the notification
           requirements of S 3010(a) of RCRA (S 270.70(a)(1)); and
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                              - 2 -

      (c)  The facility must comply with the requirements  in  40
          CFR 270.10 for the submission of the Part A permit
          application (§ 270.70(a)(2)).

     A facility must meet all of the above criteria to qualify
 for interim status.  Note that for a facility to be "in
 existence", it may either be in operation or under construction.
 See § 270.2 for the definition of "existing hazardous waste
 facility".

 2.   Can a mobile treatment unit qualify for interim status  at
     each facility where it is operated?

     Yes, a single MTU may qualify for interim status at more
 than one location.  At each site the MTU must meet the three
 interim status criteria described in question one above.  The
 fact that the treatment unit is a mobile unit instead of a
 stationary unit does not diminish the opportunity to gain interim
 status.  After the effective date of the TC rule (September  25,
 1990), the unit must meet all applicable interim status
 standards.

 3.   Does routine movement of the MTU from site to site
     constitute a change in interim status- that has to be    ,  *-r
     approved by EPA?

     No, such movement is not a change in interim status under
 Federal regulations as long as the unit is always operated within
 the constraints identified on the Part A permit application
 (e.g., the types and quantities of hazardous waste, and the  unit
 process types and design capacity).  Simply moving the unit  to or
 from the site does not in itself constitute a change in interim
 status.  However, any change to the unit or to the operation that
 results in an "increase in design capacity", a "change in
 process", or an "addition of process" would require a revised
 Part A and prior approval by EPA before the change could be
"implemented (see § 270.72(a)).

 4.   If a facility in an authorized state obtains interim status
     for TC wastes from EPA, can the company amend interim status
     without prior approval to treat and store hazardous waste
     not previously identified in the Part A?

     An interim status facility located in an authorized state
 but regulated by EPA because of the TC rule can apply to EPA for
 additional TC waste codes not on the original Part A and other
 HSWA waste codes that the State is not authorized for.  The
 addition of a new, non-HSWA waste code would be subject to
 regulation by the authorized State and not by EPA.  Note that if
 the State has not yet adopted the TC rule and a facility with
 Federal interim status due only to TC wastes wants to make
 changes to add non-HSWA wastes regulated under the authorized
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                              - 3 -

State program, this may be viewed by the state as a "new"
hazardous waste operation since the facility would not have
interim status under State law.  In this case, the State might
require a RCRA permit prior to receipt of the wastes.

     If you have any questions, please contact me (202-382-2223)
or Wayne Roepe of my staff (202-475-7245) .
                                   Sincerely,
                                   Frank McAlister
                                   Acting Chief, Permits Branch
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                                                     9523.1991(03)
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                          AUG 1 9 199!
                                                       OFFICE OF

                                              SOLID WASTE AND EMERGENCY RESPONSE
 MEMORANDUM
 TO:       James J. Scherer
           Regional Administrator

 FROM:     Don R. Clay,  Assistant Administrator
           Office of Solid Waste and Emergency Respons

 SUBJECT:  Interim Status under the Boiler and
           Industrial Furnace Rule


      Thank you for your memoranda of April 16 and May 2, 1991,
 in which you described  your strategy for addressing boilers and
 industrial furnaces (BIFs) seeking interim status as "existing
 facilities'* under EPA 'a BIF rule.

      I appreciate your  concern about BZFs seeking interim
 status without any history of hazardous waste management, or
 any documented commitment to such activities.  Further,
 I commend your efforts  to ensure that interim status is
 reserved for those facilities that, under the regulations,
 are legitimately entitled to such status.  At the same time,
 our decision on whether a specific facility has met the standard
 should be consistent with our past decisions and with our
 established regulatory  interpretations.

      In an attachment to this memorandum, I address the specific
 points you raised in some detail.  In any decision on a
 particular facility, however, you need to keep in mind what we
'believe is the general  intent of both the statute and our
 implementing regulations:  that facilities with a history of
 handling hazardous waste at the time the waste becomes subject to
 regulation, or that have made a substantial commitment to handle
 the waste in the near future, be allowed to continue their
 activities under interim status.  Where a facility has actually
 handled hazardous waste before the effective date of the
 regulation (that is, August 21, 1991, for the BIF rule), the
 facility is clearly eligible for interim status.  Where the waste
 has not yet been handled by the effective date, we agree that the
 case becomes more complex, and its resolution depends on the
                                                            Pnnttd on Ifocyctotf Ptptf
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ability of a facility to demonstrate a substantial commitment
to hazardous waste management within the near future.  Criteria
for making this decision are discussed in more detail in the
attachment to this memorandum.  Clearly, these criteria must be
applied on a case-by-case basis considering the particular
circumstances at each facility.

     In your April 16 memorandum, you made an important point:
that BIFs seeking interim status may be underestimating the
potential costs for corrective action.  We agree that the costs
could be high and that BIFs may not have adequately taken them
into account.  I suspect that if the potential liabilities are
clearly pointed out to BIF owner/operators, those who have not
already made a substantial commitment to managing hazardous
waste may have second thoughts about entering the business.
Additionally, BIF facilities should clearly understand that
gaining interim status, by itself, does not convey the right to
burn hazardous waste.  It is likely that other federal, state,
and local requirements must also be met, and the conferring of
interim status does not extinguish any other legal obligations.

     I trust that the attached response will assist you in
implementing the BIF rule in your region.  If you have any
questions regarding these criteria, please feel free to contact
Devereux Barnes at (202) 475-7276.

Attachment
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                            ATTACHMENT

Clarification of Xntaria Status criteria for BIF Facilities

Background

     The basic requirements for obtaining interim status were
established by section 3005(e) of RCRA, as amended by HSWA, which
specifically grants interim status to "any person who is in
existence on the effective date of statutory or regulatory
changes under this j\ct that render the facility subject to the
requirement to have a permit."  In the legislative history
accompanying this provision, Congress indicated that "existing
facilities" would include types of facilities that were
previously exempted from certain RCRA requirements but
subsequently became subject to those requirements.  (See 50 FR
28723, July 15, 1985.)  We have consistently taken this position
in the case of new waste identifications (e.g., see the Toxicity
Characteristic rule, 55 FR 11798).  EPA has also acknowledged on
several occasions that non-hazardous waste management facilities
that are converting to hazardous waste management but have not
yet begun hazardous waste management by the effective date of a
regulation could qualify for interim status (see 46 FR 2346).

     One of the three basic prerequisites for obtaining interim
status pursuant to §3005 of RCRA is for a facility to be "in
existence" on the effective date of any statutory or regulatory
amendments that render the facility subject to the requirement to
have a RCRA permit (§270.70(a)).  Two kinds of facilities are
deemed to be "in existence":  (1) a facility that is "in
operation" on the effective date of a regulatory or statutory
change that renders a facility subject to the permit requirement
(i.e., treating, storing, or disposing of hazardous waste), or
(2) a facility that is "under construction" on the effective date
of such a change.  For a facility to be considered "under
construction," §260.10 (under the definition of "existing
facility") requires that the facility must have all permits and
approvals necessary for physical construction and either:   (1) an
on-site construction program has begun, or (2) the facility has
accepted substantial contractual obligations for such
construction, to be completed within a reasonable time.

     We understand that several BIFs in Region VIII have already
been constructed and may wish to begin hazardous waste operations
after the August 21 date.  EPA has interpreted the term
facilities "under construction" also to include facilities that
have completed construction on the relevant date if they can
demonstrate the intent to commence hazardous waste operations
within a reasonable period of time (i.e., through a trial burn or
agreements with suppliers to receive hazardous waste derived
fuels), and if the facility meets the other relevant standards
for "in existence."  The Agency's interpretation of what
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 constitutes being "under construction" is discussed in detail in
 the January 9, 1981, Federal Register  (46 FR 2344).


 1.   What State and local approvals or permits are necessary to
     meet the definition of "existing facility"?

     One requirement for a facility to be considered "under
 construction" is thjat it possess "the Federal, State, and local
 approvals or permits necessary to begin physical construction."
 As defined in §260.10 (under the definition of "Federal, State,
 and local approvals or permits necessary to begin physical
 construction"), these permits or approvals are those required
 under hazardous waste control statutes, regulations, or
 ordinances.  Air pollution control permits that must be obtained
 prior to facility construction or modification under Federal or
 state laws would not be needed for interim status if the purpose
 of the  legislative provision is to regulate air emissions in
 general, and not specifically to regulate the treatment, storage,
 or disposal of hazardous waste, or the siting of a hazardous
 waste management facility.  Similarly, state or local building or
 zoning  permits would be included only if they specifically
 address hazardous waste management.  Of course, the facility
 remains responsible under state or local law for obtaining
 relevant building and zoning permits and approvals, even though
 the failure to obtain them will not prevent a facility from
 obtaining interim status.

     It is important to recognize that the requirement relating
 to approvals and permits refers to approvals or permits necessary
 to begin physical construction.  Since the Region VIII BIFs have
 already been constructed, the requirement should be read to apply
 to approvals for any physical modification needed to receive
 hazardous waste.  Of course, if the physical modification has
 already been completed, the need for preconstruction permits
 would not arise as an issue (unless it could be argued that the
-construction took place illegally in the absence of a necessary
 permit).

 2.   What constitutes a "substantial loss due to a contractual
     obligation"?

     To be considered "in existence," a facility not already
 handling hazardous waste and not yet under construction must have
 "entered into contractual obligations — which cannot be canceled
 or modified without substantial loss — for physical construction
 of the  facility to be completed within a reasonable period of
 time."  As one way of demonstrating substantial loss, EPA has
 in the  past used cancellation contract clauses.  Thus, EPA has
 interpreted "substantial loss" as being at least 10 percent of
 the total project cost for physical construction.  Physical
 construction means fabrication, erection, installation, or
 modification of a facility.  The term does not refer to all costs
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that may be associated with a construction project; for example,
options to purchase, contracts for feasibility, or engineering or
design studies would not constitute an eligible contractual
obligation.   (See 46 FR 2346, January 9, 1981.)  In the case of
BIFs that have not burned hazardous wastes before, the total
project cost  for physical construction refers to the
modifications necessary for the BIF to manage hazardous waste.
Although the  1981 preamble does not specifically address when
meeting the 10 percent threshold would not be sufficient, we
believe that  if the loss to the facility of canceling the
construction were minimal, the loss could not be considered
substantial, even though it exceeded 10 percent.  For example, if
the total cost of kiln modification were $5,000, a 10 percent
loss ($500) would not be viewed as substantial.  In contrast, for
a project that would exceed $250,000, we believe that 10 percent
would represent a substantial amount.

     Of course, contract cancellation clauses with higher
percentages, or other approaches to a demonstration of
substantial loss, could be considered by the Regions as well.
In that regard, we note the unique circumstances presented by the
BIF rule for cement kilns that will be modified to burn hazardous
waste.   Even though the contractual cost of installing such
modifications can be relatively low, the Regions can take into
account other economic factors and actions showing substantial
loss insofar as they provide evidence of a bona fide substantial
commitment to managing hazardous waste in the near future.

     You should also note that the "substantial loss" criterion
must be met only at facilities where construction  (i.e., facility
modifications to receive hazardous waste) has not begun.  Where
physical construction is underway or completed, a facility is
not required to show "substantial loss," but rather objective
indications of a bona fide intent to manage hazardous waste.

3.   What constitutes a "reasonable time to complete
     construction"?

     The regulations do not define the term "reasonable time to
complete construction," nor do they define a "reasonable time" to
begin management of hazardous waste, in the case of an already
constructed facility.  To determine what is a reasonable time,
Regions must make a case-by-case decision.  Generally, if a
facility is undergoing a continuous process to initiate or
complete construction activities, and arrangements are in place
to ensure that such construction can b« carried out on a schedule
that is typical of similar construction activities, then
completion of construction should be considered to be within a
"reasonable time."  The same rule of thumb applies to the
definition of a "reasonable time" to begin management of
hazardous waste.
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4.   Effect of a state moratorium.

     In your memorandum of April 16, 1991, you .discuss the
possible effect of the Utah moratorium on the ability of cement
kilns in the state to qualify for interim status.  Since the Utah
moratorium only prohibits the burning of hazardous wastes in
cement kilns, it is still possible for a facility to meet the
fundamental criteria for gaining interim status.  Of course,
gaining interim status does not affect the legal status or
applicability of Utah's moratorium.  In contrast, there could be
other situations where a moratorium could prevent a facility from
meeting one of the "in existence" criteria.  For example, if the
facility were unable to obtain a required approval for
construction due to a moratorium on hazardous waste
preconstruction permitting, interim status would be precluded.

5.   Section 3010 notification requirements for BIFs.

     It is likely that very few BIFs were required to submit a
section 3010 notification on May 22, 1991.  One reason is that
this notification requirement only applied to facilities actually
handling hazardous waste fuel on February 21, 1991.  (See 45 FR
76631, November 19, 1980.)  This section 3010(a) notification is
intended to be a "snapshot" of hazardous waste management
practices at the time a rule is promulgated.  Therefore, if a
facility is "under construction" a Section 3010 notice is not
required.  (See H.R. Rep. No. 198, 98th Cong., 1st Session, 40
(1983).)  Another possibility is that the facility might have
already submitted a notification previously either for the
burning of hazardous waste fuel under §266.35, or for some other
hazardous waste activity, in which case the BIF is not required
to renotify.

6.   Pre-Compliance certification.

     The BIF rule does not require facilities to submit a pre-
compliance certification by August 21, 1991, to attain interim
status.  Once a facility meets the statutory and regulatory
requirements, interim status follows automatically.  However, if
a facility fails to submit such a certification (or if the
facility fails to comply with subsequent interim status
compliance schedule requirements), it loses its ability to manage
hazardous waste in the BIF unit, unless and until it receives a
Part B permit.
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