United States Solid Waste and EPA/530-SW-91-062K
Environmental Protection Emergency Response August 1991
Agency (OS-343)
RCRA Permit Policy
Compendium
Volume 11
9530.1980-9581.1990
Air Emissions Standards
State Authorization (Part 271)
Land Disposal Restrictions (Part 268)
Waste Minimization
Subtitle D
• Mining Wastes
• State Programs
• Municipal Waste Combustion
• Household Hazardous Waste
RCRA Grant Funds
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DISCLAIMER
The compilation of documents in thisCompendium, as well
as the policies, procedures and interpretations outlined
in the documents themselves, is intended" solely for the
guidance of employees of ";.the .U.S. Environmental
Protection Agency. This compilation may not include all
documents discussing Agency views on particular subjects.
In addition, these documents ;:are .not intended and cannot
be relied upon to .create any rights, substantive .or
procedural, enforceable by,any party in litigation with
the United States. The views expressed in these
documents do not necessarily reflect,the current position
of the Agency, and -EPA reserves the right 'it6 act at
variance with these views or to change them at .any,, time
without public notice.
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Air Emission Standards For Owners
And Operators Of Hazardous Waste
TSDFs
ATKl/l 112/31 sin
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State Authorization (Part 271)
ATKl/1112/32sm
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9541 - FINAL
AUTHORIZATION
Part 271 SubpartA
ATKl/l 104/62 kp
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9534.1991(01)
DEC 3 199!
MEMORANDUM
SUBJECT: RCRA Regulations Applicable to Control Devices Required
by the Organic Air Emission Standards (40 CFR Parts 264
and 265 Subparts AA and BB)
FROM: Janes Michael, Acting Chief
Assistance Branch (OS-343)
Office of Solid Waste
TO: Catherine Massimino
Senior RCRA/Superfund
Technical Specialist
Region 10
In your memorandum of June 19, 1991, you ask for clarification
as to the standards that apply to control devices required by the
Organic Air Emission Standards for Process Vents and Equipment
Leaks, promulgated pursuant to RCRA Section 3004(n) on June 21,
1990 (55 ZB 25454). This rule is codified at 40 CFR Parts 264 and
265 Subparts AA and BB. You identify potential ambiguity as to
what standards are applicable when the control device meets the
definition of a regulated unit under another portion of the
regulations. You provide the example of a control device at a
permitted facility that fits the definition of an incinerator and
ask what standards apply — the requirements of the organic air
emission rule (e.g., to reduce total organic air emissions from all
affected process vents at a facility by 95 percent weight or
greater), or the Part 264 Subpart 0 incinerator requirements (e.g.,
the requirement to achieve a destruction or removal efficiency
(ORE) of at least 99.99%). My office, in conjunction with the
Office of General Counsel, has concluded that, as a general master,
the Subpart AA and BB standards govern such control devices.
Of course, the air emission rule does not limit EPA's
"omnibus" authority under RCRA Section 3005(c), 40 CFR Section
270.32(b), to impose, on a case-by-case basis, any permit
conditions regarding air emissions that are determined to be
necessary to protect human health and the environment. In
addition, the Subpart AA and BB standards address only the
performance that must be achieved by a control device with respect
to organic air emissions from process vents and equipment leaks
covered by the air emission rule. If the device is a separate unit
is also treating separate hazardous wastestreams, the unit
nf course comply withC
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The June 21, 1990 organic air emission rule required the use
of control devices to reduce emissions from certain types off
process vents and equipment leaks and required.that the devices
meet standards specified in the rule, such as the requirement in 40
CFR Section 264.1033 (c) that enclosed combustion devices reduce the
organic emissions vented to them by 95 percent or greater by
weight. EPA recognized in promulgating the rule that incinerators
might be among the devices that would be used to achieve the
standards imposed, see, e.g., 55 FR 25455. Nonetheless, the
discussion and analyses accompanying the rule — including, for
example, the health impact and cost impact analyses — are based on
the premise that the devices installed pursuant to the rule will
achieve the standards established by the rule, not the general Part
264 and 265 standards. See 55 IB 25486-25489, 25462, and 25477
(June 21, 1990).
The conclusion that the organic air emission rule standards
govern the performance of the required control devices is
consistent with the purpose and context of the rule. A facility
that, pursuant to the organic air emission rule, installs a control
device that appears to fit the definition of an incinerator is not
getting a "break" by being subject to the air emission rule
standards rather than the Subpart 0 standards. On the contrary,
the air emission rule for the first time requires the reduction of
gaseous emissions from certain equipment leaks and process vents
that were previously unregulated (except to the extent they were
regulated on a case-by-case basis pursuant to the omnibus
authority). The standards imposed by the organic air emission rule
are those which EPA determined to be protective. See 55 FR 25486-
25488 (June 21, 1990).
There is one caveat to this conclusion. You had expressed
concern that there may be instances in which a facility attempts to
use the organic air emission rule as a mea.ns of subjecting itself
to less stringent standards than it would otherwise be subject to -
- where, for example, a facility constructs a treatment train in
which an incinerator is preceded by a unit with regulated process
vents or equipment leaks in an attempt to characterize the
incinerator as a Subpart AA or BB control device. In such
circumstances, permit writers may conclude that the device is not
a bona fide Subpart AA or BB control device and impose the general
incinerator standards. These decisions will have to be made on a
case-by-case basis. Headquarters will assist permit writers in
these decisions upon request.
If you have any questions or concerns, please call me at FTS
260-1206, or Brian Grant of OGC at FTS 260-6512.
cc: Permit Section Chiefs, Regions I-X
Frank McAlister, PB, PSPD, OSW
Brian Grant, OGC
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OSWES DIRECTIVE »954i.3C-5
-."*" '"•>.
' H -, 9541.00-6
( UNiTEO STATES ENVIRONMENTAL PROTECTION AGl
•VASHINGTON. DC. 20460
SOL. 3
3 0 IS87
MEMORANDUM
SUBJECT: State Program Advisory #2 -
RCRA Authorization to Regulate Mixed Wastes
" '
FROM: Bruce Weddle,
Permits and State Programs Division
Office of Solid Wasts
TO: RCRA Branch Chiefs
Regions I - X
The purpose of State Program Advisory (SPA) 12 is fourfold.
One, it delineates timeframes by which States must obtain mixed
waste authorization. TWO, it provides a synopsis of the informa-
tion needed to demonstrate equivalence with tn-3 Federal program
in order to obtain .-nixed waste authorization. Three, it presents
information about the availability of interim -status for handlers
of mixed waste. And four, the SPA presents the Agency's position
on inconsistencies as defined by Section 1006 of RCRA.
BACKGROUND
On July 3, 1986, EPA published a notice in the Federal
Register (see Attachment 1) announcing that in order to obtain
and maintain authorization to administer and enforce a RCRA
Subtitle C hazardous waste program, States must apply for
authorization to regulate the hazardous components of mixed
waste as hazardous 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 D of
40 CFR Part 261 or (2) causes the waste to exhibit any of the
hazardous waste characteristics identified in Subpart C of 40
CFR Part 261. The hazardous component of mixed waste is
regulated by RCRA. Conversely, the radioactive component of
mixed waste is regulated by either the Nuclear Regulatory
Commission (NRC) or the Department of Energy (DOE).
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In addition, DOE issued an interpretative rule on May ;, ,.?o
to clarify the definition of "byproduct material" as it Tec . ^e- ' -.
COE-owned wastes. The final notice stipulated "that only ""-he
actual radionuclides in DOE waste streams will be considered
byproduct material." Thus, a hazardous waste will always be
subject to RCRA regulation even if it is contained in a mixt-re
that includes radionuclides subject to the AEA. Clarification
of the implications of the byproduct rule was previously transmit
ted to the Regions (see Attachment 2).
MIXED WASTE AUTHORIZATION DEADLINES
States which received final authorizati9n prior to publi-
cation of the July 3, 1986 F_R notice must revise tneir programs
by July 1, 1988 (or July 1, 1989 if a State statutory amendment
is required) to regulate the hazardous components of mixed waste.
This schedule is established in the "Cluster Rule" (51 FR 33712).
Extensions to these dates may be approved by the Regional
Administrator (see 40 CFR 271.21(e)(3)).
States initially applying for final authorization after
July 3, 1987 must include mixed waste authority in their applica-
tion for final authorization (see 40 CFR 271.3(f)). In addition,
no State can receive HSWA authorization for corrective action
(§3004(u)) unless the State can demonstrate that its definition
of solid waste does not exclude the hazardous components of
mixed waste. This is because the State must be able to apply
its corrective action authorities at mixed waste units.
PROGRAvi REVISION' REQUIREMENTS
Applying for mixed waste authorization is a simple, straight-
forward process. The application package should include an
Attorney General's Statement, .the applicable statutes and rules,
and a Program Description.
1. Attorney General's Statement
The Attorney General will need to certify in the state-
ment that the State has the necessary authority to
regulate the hazardous components of mixed waste as
hazardous waste. Copies of the cited statute(s) and
rules should oe included in the State's application.
See Item I.G., "Identification and Listing" in the
Model AC Statement in Chapter 3.3 of the State
Consolidated RCRA Authorization Manual (SCRAM) for
additional guidance.
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_, o 11 ^- r.
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2. Program ,e5cnpcion
. The Program Description sho-ld address n-v --* ?z?.\
portion of the -axed waste program w;il -* i~:lr----i-
and enforced, a«d describe .v/ailacie resources and
costs (see 40 CFR §271.6). The Stace -use also de.-or-
scrate chat staff nas necessary r.ealth or.vsirs and
ocr.er radiological training and has appropriate sec-r:tv
clearances, if needed, or chat the Scate agency has
access to such people.
If an agency other than the authorized State agency is
implementing the RCRA portion of the .nixed waste program,
then the application should include a, Memorandum of
understanding (MOU) between that agency and the autho-
rized hazardous waste agency describing the roles and
responsibilities of each (see 40 CrR §271.6(5)).
Lastly, the Program Description should include a brief
descriotion of the types and an estimate of the number
of mixed waste activities to be regulated by the State
(see 40 CFR 5271.6(g) and MM. Chapter 3.2, Program
Description, in the SCRAM orovides additional guidance.
INTERIM STATUS
In authorized States, mix-d waste handle-.s are not subject
to RCRA regulation until the State's program is revised and
approved by EPA to include this authority. l~ the interim,
however, any applicable State law applies. Treatment, storage
and disposal facilities "in existence" on the date of the State's
authorization to regulate mixed waste may qualify for interim
status under Section 3005(e)(1)(A) (ii ) (providing interim status
for newly regulated facilities), if they submit a Part A permit
application within 6 months of that date. In addition, any
such facilities which are land disposal facilities will be
subject to loss of interim status, under Section 3J05(e)(3),
unless these facilities submit their Part B permit application
and two required certifications (i.e. groundwater monitoring
and financial assurance) within twelve months of the effective
date of th« State's authorization (i.e., within twelve months
of the date facilities are first subject to regulation under
RCRA). Not«» Federal facilities that handle mixed waste are
not required to demonstrate financial assurance.
With respect to facilities treating, storing or disposing
of mixed waste in unauthorized States, Headquarters is currently
developing a Federal Register notice that will clarify interim
status qualification requirements under Section 3005(e) as they
apply to affected facilities that have not notified in accordance
with Section 3010(a) or submitted Part A and/or B permit applic-
ations. We anticipate issuing the FR notice early this Fall.
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i:;cc:;si5TE.vc:Ea
Section 1006 of RCRA precludes any solid or hazardous waste
regulation by EPA or a State that is "inconsistent" with tr.e
requirements of the AEA. if an inconsistency is identified, the
inconsistent RCRA requirement would be inapplicao ie. For exa-ple,
an inconsistency might occur where compliance with a specific F.;?A
requirement would violate national security interests. In s-ch
instances, the AEA would take precedence and tne RCRA requirement '
would be waived.
The £?A and the N'uclear Regulatory Commission conducted a
comparison of existing regulations for hazardous waste management
and low-level radioactive waste management under 40 CFR Parts
260-266, 268 and 270 and 10 CFR Part 61, respectively, to ascertain
the extent of potential inconsistencies. None were identified as a
result of that effort. The comparison did indicate that there were
differences in regulatory stringency however. Thus, in issuing
permits or otherwise implementing its mixed waste program, States
must make every effort to avoid inconsistencies.
If you have any questions please contact Jim Michael, Chief,
Implementation Section, State Programs Branch (WH-563B) at FTS/(202i
332-2231 or Betty Shackleford, Mixed Waste Project Manager, State
Programs Branch at FTS/(202) 475-9656.
Attachments
cc: Elaine Stanley, OWPE
Federal Facility Coordinators
Regions I - X
Chris Grundler, Federal Facilities Task Force
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R DIRECTIVE »9541.00-6
...o
f L, \ UNITED STA"3 ENVIRONMENTAL. 390TECTICN AGENCY
\. 22r / WASHINGTON OC 2J450
JUN 2 9 «"
:*« :-:
MEMORANDUM
Sl'BJECT:M Department o^" Energy's (DOE) Final Byproduct Rule
Regulation at DOE Facilities
'orter
Assistant ^feminist rater
FROM:
ta Mar.ase-.ent Division Directors
Regions I - X
This memorandum is intended to abate any uncertainty
surrounding the implications of the Department of Energy's
(DOE) final byproduct rule on mixed waste r*-:ulation at DOE
facilities.
On May 1, 1937 DOE published its final Byproduct rule
(51 £R 15937, copy attached). In that rule DOE stipulates
"that only the actual radionucli^es in DOE waste streams will
be considered byproduct material." The effect of this inter-
pretative rulemakirv; is that all DOE vasts str-ans whicn either.
contain a listed waste or exhibit a hazardous characteristic
will be subject to RCSA regulation. You should note that this
interpretation is consistent with the I?\/Nucl-?ar Regulatory
CoTvr.ission ( N'RC) joint definition of z-i -!~.ercial low-Leval -ixed
waste i5su<*i -earlier this year. See D.S^'ER Directive ^432.00-2.
In addition/ I would like to update you on -.he findi?«;s and
status- of th« Mix«d Eneray Waste Study (MEWS) in view of t-.e final
byproduct rul«* As you know* DOE presented a proposal to £?A for
excluding high-level an-i transuranic mixed wastes from RC3A juris-
diction. The proposed exclusion was predicated on DOE's contention
that t.-.eir waste management ?*acr ;es were equivalent or suoerior
to those mandataJ hy RC3A and r»-_-:red a le?al .-fetermirat ion that
regulatory duplication vas inconsistent. Accordingly, tr.e ME'.'S
task force was coTvnissioned in Move-noer, 1996 to gather technical
infor-nation on the merits of DOE's assertion. You should note,
however, that past practices were not included in the DOE proposal
nor were they reviewed by the task force luring subsequent site
visits to select DOE facilities.
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OSWER DIRECTIVE #9541.00-6
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In March of this year, the MEWS cask force issued .
rpoort which indicated tn at to a Lars* extent, DOE ^anacere.-.: ::
hich-level and transuraric mixed wastes were equivalent "o r sucer::-
co 9C.VA requirements. Certain areas of t.-.eir waste -i a .-.ace-* n't
operations/ however, such as ground-water monitoring and C'.erucal
analysis of wastes were clearly deficient. To date, TO category'
of DOE mixed waste has seen exempted from RCRA regulation as a
result of the findings of the MEWS task force.
Thus, all DOE -nixed1 wastes are subject to RCRA regulations
independent of the nature of the radioactive component. Therefore,
Regions which are administering RCRA program* irt unauthorized
States should, in accordance with priorities established in the
RCRA Implementation Plan, be implementing the program at DOE
facilities. Secondlv, those Regions where States have been
delegated mixed waste authority should make it clear that their
authorization includes all DOE mixed wastes. These mixed wastes
may contain high-level, low-level, or transuranic radioactive
constituents. Thiro", vou should continue to encourage States to
apoly for -nixed waste authorization especially in those States
with major DOE facilities.
Headcuarters is committed to providing technical', legal and
policy assistance to the States and Reaions in support of efforts
to effect mixed -waste reoulation at DOE facilities. Accordingly,
I will keep you apprised of any initiatives taken by either DOE
and/or EPA Headquarters affecting nixed waste regulation as soon
as they develop. Specific questions concerning mixed wastes
should be directed to 3et:y Shackleford, OSW on (FTS) 475-9656.
Attachment
cc: Ken Shuster, OSW
Chris Grundler, 03WEA
Ray Berube, DOC
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9541.1981(01)
WASHINGTON, O.C. 20460
era ? Q IQQI OPPIC« o*
Jtr fc* ISO1 SOUOWATTl AND IMfftOINCV MIVONSU
PE - 81 - 12
MEMORANDUM
SUBJECT: States' Role in Assigning EPA Identification Numbers
FROM:
Acting Assistant Administrator (WH-562A)
TO: PCS Addressees
Issue:
EPA requires all hazardous waste / generators and transporters and owners
and operators of hazardous waste treatment, storage, and"disposal facilities to
receive an EPA identification number (ID mnber) before they handle hazardous
waste.2/ identification nusbers are.issued by the EPA Regional Offices. Vhat
role should the States play in assisting the EPA Regional Offices to assign
identification ranters?
Decision: . * '
(1) States with interim authorization and States under Cooperative Arrangements
are encouraged to assist EPA in assigning EPA identification nunbers. Specifi-
cally, EPA would "liXa Stats assistance in distributing and reviewing RCRA Notifi-
cation and Bart A.^erai.t Application Fbros. The responsibility for assigning
EPA ID numbers will reoain in the Regional Offic
(2) States with tiwlr CMH system of assigning ID nunbers are encouraged to use
the EPA ZD number as the Stats ID number.
hazardous waste as defined by EPA except where specifi-
cally noted in this
2/ Sections 262.12, 263.11, 264.11 and 265.11 establish this requirement for persons
handling hazardous waste in States where EPA is running the hazardous waste program.
Sections 123.34 - 36 require-for final authorization that States mandate that persons
handling hazardous waste within their borders obtain EPA ID numbers. There is no
comparable requirement for interim authorization but to date all States have accept-
ed the use of EPA ID nuabers.
/?-(
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Discussion;
EPA assigns'an identification number to each generator and transporter of
hazardous waste and to owners and operators of hazardous waste treatment, storage,
and disposal facilities who notify the Agency. Generators must not offer their
hazardous waste for transportation; transporters trust not transport hazardous
waste; and owners and operators of hazardous waste management facilities must
not treat, store, or dispose of hazardous waste without first receiving an EPA
identification number.I/ EPA assigns a unique identification nunber to each
single site where hazardous waste is generated, treated, stored, or disposed;
or, in the case of a transporter, to his principal place of business. The
identification number is used on all manifests, reports, and records that EPA
requires. The EPA identification number also serves as the "password" for
entering and retrieving data from EPA's Hazardous Vbste Data Management ADP
System (HWCMS). HWCMS is the Agency's major source of information on hazardous
waste handlers across the country and is a critical element in implementing
Subtitle C of RCRA. EPA is also in the process of tying together HWCMS with
other EPA data management systems using the EPA ID number as the curum link.
The scheme EPA uses to assign identification numbers is based on the Data
Universal Numbering System (DUNS number) that Dun and Bradstreet Incorporated
(D & B) has developed. D & B has assigned approximately three million DUNS
numbers to all types of businesses across the nation. EPA also assigned tem-
porary "T" numbers to persons who did not have an existing DUNS number*!/
All persons who have registered with EPA have been assigned an ID number that
is their DUNS number, a T* number, or for some Federal activities, their GSA
Real Property Number.
Seven general steps are involved in assigning an EPA ID number. They are
(1) answer requests for blank forms (hazardous waste generators and transporters
must submit standard EPA form 8700-12. the EPA Notification Form; owners and
operators of new hazardous waste management facilities oust submit standard EPA
forms 3510-1 and 3510-3. the RCRA Part A Permit Application), (2) review the
submitted information for completeness and obtain any missing information, (3)
review the D 6 B microfiche list to determine if the site has an existing DUNS
number. (4) if the site is not listed on the D&B microfiche, check other files
within the Region to determine if EPA has assigned an alternate DUNS number to
the site under another program which also can be used as the EPA ID number for
the RCRA program, (5^ if the site does not have a number under another program,
assign one of the numbers from the Region's D 6 B user blockr (6) enter informa-
tion about the- activity into HWCMS, and (7) generate an acknowledgment from
HWCMS and issue it to the requestor to inform him of his EPA ID nunber.
V See footnote 2.
V EPA is no longer issuing "T* numbers as of August 1, 1981. Instead, EPA
purchased from D 6 B a frlocfr of unmssigned DUNS numbers and will assign numbers
from this block to persons who do not already have a DONS number. EPA has be-
gun converting existing T" numbers to DUNS numbers for facilities requiring
IOA permits and for generators and transporters with activities regulated under
other EPA programs.
(2)
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There has been oonfusion as to **at responsibilities the States can
in assisting EPA to carry out these steps. In order to obtain final authorization
a State must require new hazardous waste generators and transporters and owners
and operators-of hazardous waste treatment, storage, and disposal facilities to
obtain EPA ID numbers before conducting hazardous waste activity ($$123.34 (a),
123.35 (a), and 123.37 (b)). Both the TOA State Interim Authorization Guidance
Manual" (June 25, 1980) and the "Additional Guidance for Cooperative Arrangements
under Subtitle C of HCRA" (August 5, 1980) provide for States to assist EPA in
assigning identification numbers prior to final authorization .
v States with interin authorization and States under Cooperative Arrangements
are encouraged to assist EPA in steps number 1 and 2 .listed above. For now,
EPA win retain full responsibility for steps 3 through 7." Several States
have expressed an interest in assisting EPA in steps 3, 47 and 5, and further
have requested that EPA provide them with blocks of unassigned ID numbers which
the State could assign directly and eliminate delays in getting new numbers
one at a »<"• from EPA. EPA prefers not to relinquish the responsibility for
steps 3, 4, and 5. The Agency must maintain tight control over the assign-
ment of all new numbers since the EPA identification number is the key means
of identifying the activity in the Agency's data management systems (SPA
will continue to enter into the Agency's ADP data, base the name, address and
type of activity for all sites that are assigned an EPA ID number).
Recognizing the need for rapid imianrg of new identification numbers,
EPA has assigned contractor (Computer Sciences Corporation) personnel in each
Regional Office to perform steps 3, 4, and 5. The plan is for the contractor to
complete these steps within one day. Steps 6 and 7 involve interacting with
EPA'a AEP system. Since there is presently no capability for States to enter
information, into EMCKS, no State can perform these steps.
EPA is aware that several States have system for assigning State
identification numbers to hazardous waste (as defined by the State) handlers.
Since- the federal regulation» require the use of EPA identification numbers,
EPA strongly encourages States that issue their own identification numbers to
adopt the EPA numbering scKemev State use of the EPA scheme should benefit the
State programs and the regulated commit? byr
*
•eliminating duplication of effort;
•eliminating confusion from the issuance of multiple numbers;
•providing for rapid issuance of numbers directly from the Regional
Offices» sod
Purtheraore, States employing the EPA numbering scheme will be better pre-
pared to us* the proposed uniform national manifest fora I/ which will accommodate
only EPA issued identification numbers.
5/ EPA plans toTpublish the uniform national manifest fora for public review and
it in October 1981.
(3)
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In cases where a State haa adopted a definition of hazardous waste that is
broader than tba Federal definition, it may not always be clear if the person
requesting an identification nunber in that State handles 'Federally defined"
hazardous waste or hazardous waste covered under the broader portion of the
State definition. These handlers may be issued an EPA identification nunfcer
since it is not critical that only "bona fide' handlers of Federally defined
hazardous waste receive an EPA identificaion number, towever, it would
be helpful if States participating in Step 2, above, would point out these
cases so that we can make a note in our files that the activity has been
issued an EPA ID nunber but my not be handling Federally defined hazardous
waste.
(4)
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9541.1982(01
'i "• UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON. D.C. 20460
PIG-82-3
MAY I 7 B82 OFF.CEOF
SOLID WASTE AND EMERGENCY RESPC'.S-
MEMORANDUM ' .
SUBJECT: Assignment of a Memorandum to the Program
Implementation Guidance System
FROM: John Skinner, Director
State Programs and Resource Recovery Division (WH-563)
TO: Program Implementation Guidance System Addressees
)
On March 15, 1982, Enforcement Counsel issued, the attached ,
memorandum to Regional Administrators and Regional Counsels. The
Memorandum provided valuable information, guidance, etc. on EPA
enforcement of RCRA-authori zed State hazardous waste laws and
regulations. I think that the guidance contained in th'is memo-
randum is of such value as to warrant wider distribution and incor'
poration into our system of Program -Imp! ementati on Guidance. For
future 'reference and ease in filing, I have designated this memo-
randum as Program Implementation Guidance number 82-3 •
Attachment
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WASHINGTON. C.C. Z3-6C
MAR 1 5 S3SE
MEMORANDUM
SUBJECT: EPA Enforcement of RCRA-Authorizec State Hazardous
Laws and Regulations -\
-ROM: William A. Sullivan, Jr.
Enforcement Counsel (EIJ-329) /',
TO: Regional Administrators, Regions I £ 5
Regional Counsels, Regions I - X
In the administration of the hazardous waste program, a. state
with an authorized RCRA program may, for various reasons, be unable
or unwilling to taJce enforcement action that EPA may deem critical.
Several legal and administrative questions which may be presented
in such cases include the following: " • '
1. Can EPA taJce enforcement, accicr. in s^azes wrticr. have
se^n granted authorization to administer and enforce the RCP.A pro-
Lram? What about states with which EPA has Cooperative Arra.-.ce-
2. Assuming EPA can taJca enforcement action, does it
enforce the state laws and regulations, or the Federal P.C3A lav *~z
regulations?
3. If an enforcement action is necessary, in what court
should EPA file the action?
4. If the enforcement action involves administrative
proceedings, does EPA follow federal or state procedures?
5. Since the taking of an enforcement action by E?A
in an authorized state might, in some cases, endanger or irritate
federal-state relationships, what procedures should be developed
to insure, to the greatest possible extent, that any federal
enforcement actions taJcen in a RCRA-authorized state are done at
such times and in such a manner as to eliminate or minimize
any possible impact upon that federal-state relationship?
•
5. What is the effect, if any, of state authorization
uron EPA's abiiitv to take action under Sections 7003 and/cr 20-12
3C2A?
This memorandum will attempt to suggest some answers to
these questions and procedures which might be employed to avoid
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n,
__i>i^ •..;.- cetveen £PA and the state agency or agencies should it
become r.ecessary for EPA to take enforcement action. The questions
vill be addressed in the order set forth above. The Office of
Enforcement "Counsel has consulted with the Office of General Counsel
in the preparation of this memorandum.
CAN SPA TAZE ENFORCEMENT ACTION IN A SCHA-ACrrSORIHSD STATE?
WHAT A30CT STATES WITH WEICH SPA HAS COOPERATIVE ADVANCEMENTS?
A. Authorized states:
When a state is authorized to administer the 3C3A program in
lieu of EPA, £?A has made a determination that the state's program
is equivalent (in the case of final authorization), or substantially
equivalent (in the case of interim authorization), to the federal
program, and that the state hazardous waste program can thereafter
be administered by the stacs ur.cer stita law, i- lieu cf the Federal
prograa. (See 3CP.A, Section 3006(2) and (O). After authorizatio
can EPA take enforcement action in such a state, and if so, would
it enforce state or federal lav and regulations?
The provisions of P.CRA Section 2003 ( a) (1) and \ 2 ;• are most*
helpful in answering these questions. These provisions state:
"Secticn 3008 (a) Compliance Crcers.- (1) Except
as provided in paragraph (2), whenever on the
basis of any information the Administrator
determines that any ?erscr._is in violation of
any requirement of this subtitle, the
Administrator may issue an order requiring
compliance immediately or within a specified
time period or the Administrator may commence
a civil action in the United States district
court in the district in which the violation
occurred for appropriate relief, including a
temporary or permanent injunction."
"(2) In the case of the violation of any
requirement of this subtitle where such violation
occurs n a State which is authorized to carry out
a hazardous waste program under Section 30Q6,'tae""
Administrator shall give notice to the State in
which such violation has occurred prior to issuing
an order or commencing a civil action under this
section." (emphasis supplied)
Subsection (2) clearly indicates that even though' a state
has an authorized hazardous waste program, E?A retains the right
f federal enforcement, subject to the giving of notice to the
2te in which the violation occurred prior to taking enforcemen
cion.
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The legislative history of Section 3GC3 supports this
interpretation. That history, contained in House Committee en
Interstate and Foreign Commerce Report .Mo.'94-1451 (September 9,
1976), at page 21, states:
"This legislation permits the states to take
the lead in the enforcement of the hazardous
waste laws. However/ there is enough flexi-
bility in the act to permit the Administrator,
in situations where a state is not implementing
a hazardous waste program, to actually implement
and enforce the hazardous waste program
against violators in a state that does not
cr.e federal minimum requirements.
Althouh
tne Administrator is required to give notice
.of' violations of this title to the states
with authorized hazardous waste programs, the
Administrator is not prohibited from acting
in those cases where the states fail
or from withdrawing approval of the state
hazardous waste plan and implementing the
federal hazardous waste program pursuant
The preamble to 40 C73 Sl23.12S(f) and (g) at 43 Tad. 2ec. 32294
(May 19, 1920), also briefly sets forth this position regarding
EPA ' s enforcement of hazardous waste laws and regulations in an
Authorized state.
We can also 'look to the Clean Water Act (CWA), which is highly
analocous to 3.C3A in this regard, and from which Section 3G03 was
drawn2/. Cases involving similar provisions of the C%*A (e.g.,
Sections 3C9 and 402) support the proposition that while Congress
intended that the states have primary authority to administer the
the program subject to national guidelines provided by the Act
and by the £?A regulations/ S?A retained the authority to achieve
the purposes and goals of the Act, including the right to take
.i/The House Bill (5.R. 14495) was amended subsequent to the
submission of this report, which chanced the references of Title
III to Subtitle C of the final Act.
2/See Report of Senate Committee en Public Works, Mo. 94-983,
p. 17, dated June 25, 1976; which states with reference to what is
now Section 3008:
•
"In any regulatory program involving Federal
and State participation, the allocation or
division of enforcement responsibilities is
difficult. The Committee crew on the similar
provisions of the Clean Air Act of 1970 and the
federal Water Pollution Control Act of 1972."
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enforcement action in appropriate cases, ever, after a. state program
has beer, approved. See Cleveland Electric Illuminating Cc. v. EPA,
503 F. 2c l-(5th Cir. , I979j"; u.S. v. City or Colorado'sprincs,
455 F. Supp. 1354, (D.C., ColoTTi575}; Chesapeake 3ay foundation.
Inc. v. Virginia state Water Control 3oard, 45 j -. sago. 122 (S.c."
Va., 19 78);'U.S. V. Care ill. Inc./ Civ. DocJcec 480-135", (D.C. Del.
?eb. 12, 1981); and shell Oil v. Train, 415 F. Supp. 70, (D.C. Cal.
1975), where the Court:, artar quoting from legislative history
or the Of A, stated:
"The language suggests that Congress did not
intend the environmental effort to be subject
to a massive federal bureaucracy; rather, the
states were vested with primary responsibility
for water quality, triggering the federal
enforcement mechanism only where the state
defaulted.... The overall structure is designed
to give the states the first opportunity to
insure its proper implementation. In the
event that a state fails to act, federal
intervention is a certainty".
3. States With Which EPA Has Cooperative Arrangements; v
Regarding states which have entered into Cooperative
Arrangements, the .federal-state relationship is different froni
that of interim or final authorization. A Cooperative Arrangement
is a device to assist states whose hazardous waste programs are
•5t yet sufficiently deve-loped to qualify for authorization, and
j provide financial assistance to these states. (See guidance
nemorancua on Cooperative Arrangements dated August 5, 1980).
There is no authorization by EPA of the state to administer the
hazardous waste program in lieu of the federal program. In fact,
the model Cooperative Arrangement specifically provides that:
"EPA retains full and.ultimate responsibility
for the administration and enforcement of the
Federal hazardous waste management program in
the state." .... —
The right and obligation of EPA to taka enforcement action
in a state with which the Agency has a Cooperative Arrangement is,
therefore, the same as in a state which has neither interim or
final authorization.
Although notice to such states of impending enforcement
action is not required by RCRA, for purposes of maintaining harmo-
nious E?A-state relationships, appropriate consultations should
precede EPA action, and written notice should be given by EPA to
the appropriate agency and the governor of the affected state. •
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DOES 2?A S:^0?.CI STATI LAW Ai;2 SSGl'LATIOMS CR
LAW AiiD REGULATIONS IN AN ACTHORI:SD STATZ?
Having concluded that £?A can enforce hazardous waste 'laws
and regulations ir. a state with an £?A-approved program, the cues-
cion then becomes: does £?A enforce RC3A and federal regulations,
or the state's statute and regulations? If the latter, "can £?A
enforce a portion of the state program that goes beyond the scope
of coverage of the basic federal program, or state laws and regula-
tions which were adopted after £?A approval of the state program?
On the other hand, may £?A enforce a portion of the federal pro-
gram that is not included in the state program?
T
These iss.uas nay initially se«si more academic than real si.-.ce,
ir. order to gain interia authorization to administer the ?.C?.A
program, a state must have a program which is "substantially
equivalent" to the Federal program (see 3C5A, Section 3006(cJ}/
and a program which is "ecuivaient" to the federal program in
-order to gain final authorization (Section 3006(b))~. As a result,
sany authorized states will have provisions which are similar, if
not identical, to the federal regulations. However, there will
undoubtedly be differences in the federal and state laws and
regulations, particularly during interim authorization, and many*
states will have programs which are, in part, more stringent cr
broader in scope of coverage than the federal program. Thsrsfcra,
ir is very lixeiy chat these issues will be encountered frequently.
As discussed, in Parr' 1 of this memorandum, Section 3008 fa) (2;
?.C?«A authorizes £?A to take enforcement action in an authorized
state, after notice to the state, in the case of "a violation
of any requirement of this subtitle." When £?A authorizes a
hazardous waste management program under Section 3006, the state
program becomes the RC3A program in that state, and is a part
of the requirements cf Subtitle C referred to in Section
300S(a)(2), which £?A is mandated to enforce. CJpon development
of the state's program and acceptance of that program by £?A,
"such state is authorized to carry out such program jLn lieu cf
the federal program under this subtitle in such state...." (
Section 3005(b) and (c)). In other words, the only hazardous
waste program in effect in that state is the state program, and
-he stata laws and regulations are those which must be enforced
by £?A should federal enforcement action be necessary. This, o
course, does not limit £?A's right to taJce action under Sections
7003 cr 3013 cf RCHA (see Section 6 of this memorandum).
This result is undoubtedly in keeping with the indent of
Congress. If the federal hazardous waste regulations were to
2??iy -- handlers of hazardous waste in authorized states, these
persons would be continously subjected to a dual set of laws and
rulations, a situation which presently exists in these states
-h have not yet received interim authorization. Such dual
-lation is presumably what Congress intended to phase out in
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an.orceriy manner when it adopted the provisions cf Section 2CC5
( z ) and ( c ) .
Acain, an analogy can be drawn to the provisions of the
Claar, tfatar Act and the cases decided under it to reinforce -his
opinion. See United States v. Carjill, Inc./ (D.C., Dei.) Civil
N'o. 80-135, Slip Op. Feoruary 12,Is 81; SneTl Oil v. Train,
supra; United States v. I.T.T. Raycnier, Inc., 627 F. 2c 9 9 o (9th
Cir., 1930).The prociem becomes"more complex, however, when
the following questions are considered:
(A) If an authorized state program includes regulation-
or statutory previsions which ara greater in scope of coverage
than the federal program, can EPA also enforce those additional
3tata requirements?
(3) If che federal regulations contain provisions v-ic-
are nor included in the state program (e.g., by raason of promul-
gation by EPA subsequent to authorization cf the state program by
EPA), can EPA enforce the federal regulations which are not a
.part of the state program? and,
(C) If the state makes modifications in its program
after authorization, does EPA enforce the state program a-s originally
approved, or the state program as modified after approval by EPA?
These questions will be of particular significance during
interim authorization, when the states are required only to have
-rocrarcs which are "substantially equivalent" to the federal program
t* — » *^4^A**~
U ^ ••*1C<»
A. If an authorized state program includes regulations
or statutory provisions which are greater in scope of
coverage or mere stringent than the federal program,
can EPA also enforce these additional state requirements?
Individual states will, in addressing industrial, agricultural,
_geographic, hydrolcgical and other factors which exist within their
borders, undoubtedly develop portions of their hazardous waste
programs which are greater in scope of coverage than the federal
program. Examples cf such additional coverage could include the
listing of wastes which are net included in the federal universe
of hazardous waste; the permitting of generators or transporters;
recordxeeping or reporting requirements not included in the federal
regulations; and requirements for physical examination of employees
and their families. State requirements which are greater in scope
of coverage than the federal regulations are generally those for
which no counterpart can be found in the federal requirements.
State program requirements that are greater in scope of .
coverage than the fede'rai program are not a part of the federaliy-
'-proved program (40 C?S $5123. i(!c) and 123. 121 (g;). Since that
rtion of the state program does not have a_counter?art in the
federal program, it does not become a requirement of Subtitle C,
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_..c -, ic-or. or which £?A is entitled ro enforce pursuant re
Section 30C8(a)(i) and (2). Therefore, I?A .^ay not enforce that
portion of a state program which is broader in scope of coverage
than the federal program.
It should be mace clear, however, that there is a distinction
between portions of a stats program which are broader in scope of
coverage, and those which are "more stringent" than the federal
program. Section 3009 of HC3A and 40 C52 $$123.i(k) and 123.121(g;
provide that nothing shall prohibit a state from imposing any
requirements which are more stringent than these imposed"by the
fed'erai regulations.
"while state provisions which are broader in scope of coverage
generally do not have a counterpart in the federal program, the
subject matter of the more stringent state provisions is usually
covered in similar provisions of the federal program. Ixamples'cf
more stringent state provisions would include: a requirement that
net only a fence ie erected and maintained around a "facility, but
that is be a fence of specific height and of specific material
(e.g., a tsn-foot, chain-link fence); a requirement that containers
~for storage of waste be of a specific material and/or color-coded;
a lesser amount of waste exempted from regulation under the small
quantity generator exemption (40 C~?. §251.5); and a requirement1
that final cover of a land disposal facility be of a particular
material or thickness.
Provisions in state programs which are more stringent than
fctheir federal counterparts are, nevertheless, a part of the approved
:ate program, and are enforceable bit £?A. Congress apparently
.ntended that result when/ in Section 3009, it authorized states re
develop more stringent programs, and, at the same time, authorized
Z?A to enforce those programs under Section 3008(a)(2). In addition.
nore stringent state provisions in an approved procram are, unlike
those which have no counterpart in the federal procram, a part cf
the requirements of Subtitle C, wfaich EPA is required to enforce.
3. If. the. state modifies its program after authorization,
can I?A enforce the state program as modified, or the
state program as approved before the modification?
This issue assumes that, after either interim or final
authorization of a state program, the state makes modifications
in that program. Such modifications could make the program
more stringent, less stringent or enlarge or restrict the scope
of the procram. In such event, must £?A enforce the procram as
modified, or the procram in. existence at the time of authorization?
With regard to modifications made by the states in their programs
after final authorization, 40 CFR 1123.13 sets forth specific pro-
cedures•for such revisions by the states and approval thereof by I?A.
Estate program revision after final authorization must be submitted
^ "?A for approval, public notice given, and a public hearing held
i_ there is sufficient public interest. The revision to the state
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.tr.e Ac's in is ~rz -.cr
•40 Cr?. 5123.13(3} ( 4J ). It is, tnereiore, ciear t.-.at ur.cer
preser.t SPA regulations, modifications made to a state program
after final authorisation- require SPA approval for such modifica-
tions to be "effective, and that the state program whica SPA may
enforce is that which existed as cf the latest SPA approval.2/~
However, the federal regulations relating to Phase I authori-
sation contained in 40 CFP. 5123.121 through 123.137 do not cental.-.
specific provisions comparable to §123.13 with respect to how modi-
fications may be mace by a state in its program after interim
authorisation, or how approval of any such modifications could be
made oy SPA, short cf Phase II or final authorisation. This is a
significant omission, since it is apparent that many, if not all,
states will be making modifications in their programs between the
approval for interim authorisation and the filing of their appli-
cations for- final authorisation.£/'
In the absence of requirements in RCP.A or SPA's regulations
for submission of program modifications by a state with inter in
authorisation to SPA for approval, it is presently our opinion
that SPA may enforce such modifications made by a state with
interim authorisation, notwithstanding that SPA may not have
aooroved those modifications.5/
^/Discussions with representatives of the Office of General
.Counsel and the Office of Solid Waste indicate that 40. C?R 5123.13
s under review, and may.be amended to eliminate the requirement
-iat SPA approve • modifications made "after final authorisation cf
state programs before the modifications may be effective. The
consequences en enforcement of such an amendment to 5123.13 are
addressed in the following discussion.
j/There are, however, stages during interim authorisation in
which"state program changes may be approved by £PA. For example,
when the states, having received Phase I authorisation, apply to
SPA lor Phase II interim authorisation, they must demonstrate that
their programs have been modified, if necessary, since Phase I
authorisation so as to contain the elements necessary to meet the
requirements of one or more cf the components of Phase II. Likewise,
changes in the state program during interim authorisation are sub-
mitted to £?A for approval as part of the process for final authori-
sation. There is also a provision in the model Memorandum of Agree-
ment between £?A and the state which requires the state to inform
SPA of any program changes which would affect the state's ability
to implement the authorised program. Nevertheless,.there is no
requirement, as in 40 C?R 5123.13* which delays the effective date
cf'modifications in a state program during interim authorisation
until after IPA approval of such modifications.
5/in the event SPA should eliminate the requirement of 40 CF3
.3.T3 (see footnote 3), then by much the same reasoning contained
herein, SPA could also enforce modifications made in the state pro-
gram after final authorisation, notwithstanding whether SPA had
aooroved the modifications.
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We have come to this conclusion for the following reasons:
i.- Congress provided in Section 3005 for two types
of authorization: interim authorization,...to be grantee upon 2
showing by the states of "substantial equivalence" wi-;- the
federal program; and final authorization, upon a showing by the
state of "equivalence" with the federal program. Obviously, in
the journey from substantial equivalence to ecuivalar.ee/ some
changes must be made, and were undoubtedly contemplated by
Congress. Yet, Congress also authorized EPA to enforce the
hazardous~waste program during this interim period, including
the programs in effect in those states to which interim authori-
sation had been granted. It therefore appears that Congress
intended that EPA enforce such laws and regulations as were in
effect at the time of violation in. a sta.te with interim, authori-
sation , notwithstanding'whether EPA-had formally approved each
and every one'of those laws or regulations.
2. To conclude that EPA could not enforce state laws
and regulations adopted after granting of interim authorization,
•but was, instead, restricted to enforcement of only those which
were in existence at time of approval of the state program by
EPA, would potentially subject the regulated community to the
dilemma of being required to comply with two sets of laws or
regulations on the same subject: those which__wer.e. a .part.p.f.
-the--Z?A-a?pr3-vec scats procran at the cine of granting of
ihteris authorization; and these which the state promulgated
after the granting of interim authorization. Such dual regula-
•ion defeats the whole purpose of state authorization..!/
We therefore conclude that changes made by a state in its
hazardous vaste programs after granting of interim authorization,
and before granting of final authorization, may be enforced by
IPA regardless of whether the chances have been formally approved
by EPA. In so doing, we recognize that there are several forceful
arguments which can be made on-the other side of the issue.I/
Notwithstanding these, we believe the weight of the arguments
tilts, in favcr of the conclusion which we reached herein.
.i/This reasoning would not apply with equal force to
modifications made in a state program during final authorization
because the States presumably will be making many fewer modifications
of their programs after final authorization.
Z/"or example, if a state, after receipt of interim authoriza-
tion, makes changes in its program which are less stringent, is EPA
fc-equired to enforce the portions of the state program which are
^ ss stringent? The answer must be "yes", and if the state makas
...^ny such changes in its program, EPA's only resort may be to
e the State's authorization.
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C. If the federal regulations contain provisions vr.ich
are nor induced in an approved state progrsn, car.
I?A er.fcrss those federal refutations ir. ir.sz s-iie"
The situation presented by this question will most likely
occur when £?A modifies its regulations or adopts new regulations,
such as the addition of a waste to the universe of federally-
regulated waste, after the approval of a state progran. This issue
is significant because, with approximately one-half of the states
having received interia authorization, it is important to know
whether chances made in the federal progran subsequent to a stats
having been granted authorization can be enforced in that state.
Under the procedure..established by Section 3006 and 40 C"?.
Parr 123; a state,: irr order to gain ir.tsria cr final authorisation.
aust submit to E?A its program consisting of, among other things,
the state laws and regulations which constitute its program.
These are compared to the analogous provisions of the federal
program to determine whether the state program meets the rv cessary
standards for interim or final authorization. Approval is grantee"
for the specific state program as submitted, which then becomes
the hazardous waste program in effect in that state in lieu of the
federal program.I/ The federal program, in effect, ceases to '
exist in that state, except for the potential of federal enforcement
of th'e state nrogram cr the cossibilitv of action under Sections
•3003 or 3013.
Since the state hazardous waste_ laws and regulations are
iff active in lie'u of the federal pro~gram after authorization, any
changes in the federal program cade after the granting of interim
authorization to a state do not become a part of the state program
unless and until the state adopts such changes.I/ Inasmuch as the
state laws and regulations are those which £?A is required to
I/As noted earlier, where the state program has a greater
scope of coverage than required under the federal program, that
part of the state rrogram is not a -art of the federal!v-aorrcvsd
program. 40 C.R SS123 '.L( x) ( 2 ) and 122 .121(g ) ( 2 ) . Also as noted earlis
curing interim authorization, £?A enforces modifications in a state
program, notwithstanding that EPA may not have approved those
modifications.
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enforcs, EPA is, conversely, nor entitled to enforce federal
requirements which --- r.ct a par- of the state praerar-.. 1Q/
With regard to states which have been granted final authori-
sation, there are provisions in the federal 'regulations which
govern the state adoption of modifications in the federal program.
Section- 123.13 of 40 C?R requires the s.tatss, after final authori-
zation, to adopt amendments which are made, to the Federal program
within one year of the . romulgation of the' federal regulation,'
unless the state must adopt or amend a statute, in which case the
revision of the stats program must take place within two years.
Hcwever, until the stats adopts the Federal amendments, the stats
program does not include them, and EPA cannot enforce them in that
state.
We recognise that this could create., a situation in which
regulations promulgated by EPA subsequent to authorization cf a
substantial number of states wouic not be effective • in those
states until such time as the states adopted them, As/ while being
in effect as part of the federal program in those states which
do not yet have interim authorization, and in those states which
receive authorization after promulgation of. the regulations and
have included a counterpart of the regulations- as part of their-
stats program.
3.
17 AN ENFORCEMENT ACTION IS NECESSARY,
IN WHAT CCCTRT SSOCJLD Z2A FILZ TEE ACTION?
Section 3003(a)(l) of RCRA provides that whenever the
Administrator determines that any person is in violation of any
requirement of Subtitle C, "... the Administrator may commence a
..si/It should be noted here that there are components of the
federal program which are not included in Phase I interim authoriza-
tion or in seme phases of Phase II authoriration to the states.
For example, the grantine of Phase I interim authorization to the
states does not include the authority to issue RCRA permits to
hazardous waste management facilities. Likewise, the granting of
Phase II, Component A authorization (covering permitting of
storage facilities) does not include authority to issue RCRA permits
to hazardous waste land disposal facilities, which will be covered
by Component C of Phase II. The portion or portions of the federal
program not covered by an -authorization to the state Continues
as a part of the federal program in effect in that state until it
is covered by a subsequent authorization. In the meantime, EPA
is entitled to enforce those portions of the federal program which
the state has not yet been authorized to administer.
is/For a discussion of the adoption of modifications by a state
.n its program, see Subsection 3 of this Section, supra.
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civil action ir. tr.e united States District Court in the district
in which the violation .occurred...."
This statute vests jurisdiction of suits involving vioiiCions
of the hazardous waste program under Subtitle C in the U.S. Distric
Courts, and the venue of such actions in the U.S. judicial district
in which the violation occurred. Therefore, in a suit brought
by £?A to enforce a portion of the hazardous waste program of a
state which has received interim or final authorization, the
suit should be brought in the appropriate CJ.S. District Court,
but the substantive law to be applied to the facts of the case
should be the state hazardous waste statutes and regulations
which were applicable to those facts.
The sta-ts say, of. course, file its enforcement^ .actions' in the
state courts. In this regard, £?A should be aware of the.'potential
which may exist for a final decision in a scate court action to
act as collateral estoppel to a subsequent action which EPA say
bring against the same offender ever the same violation. See r.T.S.
v. ITT Rayior.er, Inc., 527 F.2d 996 (9th Cir, 1980) / for a discus-
'sion o: state court judgments acting as collateral estoppel against
4.
IT r?A SNFORCS.MS:iT OF STATE LAWS/ REGULATIONS OR
PERMITS INVOLVES ADMINISTRATIVE PROCEEDINGS,- 3EOCJL3
EPA FOLLOW FEDERAL OR STATE ?RCCEDLTR£S?
Since the bulk of the RCRA enforcement activity of E?A will
involve administrative proceedings, particularly with the authority
to issue administrative orders under Sections 3008, 3013 and 7002,
the question of whether federal or state administrative procedures
will be followed in enforcement actions is an important one.
Th-ere—c-&n—be little question that Congress provided £?A with
.the^necessary authority to use federal procedures- for enforcement
of all applicable hazardous waste laws, and that it intended that
those procedures be used in the event of federal enforcement of a
state's hazardous waste laws or regulations. A±V "or example,
Section 3003(a)(l) of RCRA authorizes the Administrator/ in the
event cf a violation of any requirement of Subtitle C, to issue .
an order requiring compliance immediately or within a specified
time. Section 3008(a)(2) makes it clear that such orders may be
issued in states which are authorized to carry out the hazardous
waste program under Section 3QQ6 (azter notice to the affected
state); and Section 3008(a) (3) provides for a penalty for non-
compliance, as well as the authority of the Administrator- to revoke
* *? /
is'We interpret RCRA as limiting the use of the administrative
orders mentioned herein to £?A, and tha-t—rrrey are net available,
as such, to the states. The states statutes may/ of course,
contain authority for state administrative orders.
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any permit issued to the violator, whether by EPA or the State.
Provisions for public hearings on any order issued under tnis
Section, anr authority for the Administrator to issue, subcoer.as
are also included in Section 3003 (b ). Section 3003(c) specifies
the scope and content of the compliance orders which may be
issued under this Section.
Congress provided a specific mechanisra for federal acninistrativ
enforcement proceedings, to be used in cases of federal enforcement
of state programs in lieu of any administrative procedures contained
in the laws and regulations 'of the state in which the violation
occurred. Furthermore, it would seem inconceivable as a practical
matter that EPA would consider using state, administrative" procedures
even should it lecally be .possible to do- so/.- since- that would, in
most cases',"" necessitate submitting the violation to the state
agency whose inability or failure to take enforcement action would
have been responsible for bringing about EPA's involvement in the
matter.
IN EVENT OF EPA ENFORCEMENT IN AN AUTHORIZED STATE,
WHAT STEPS SHOULD HE TASEN TO MINIMIZE ADVS2SS
IMPACT u?ON ?SD£?JLL-STATZ RELATIONSHIPS?
There are several circumstances under which EPA may be
required to take enforcement action in a state with an- authorized
^3A program, most primarily because cf the state's lac.1: of
^sources to taka- adequate or timely "action. Whatever, the reason,-
EPA should carefully avoid the appearance of being "overbearing"
or disregarding the states' role as the primary agency for admin-
istration and enforcement of the hasarnous waste program.
In some cases, the state will request SPA to take enforcement
action. In such cases, few problems are encountered in SPA-state
relations. However, a letter confirming the State's request, and
the notice provided for in Section 3008(a)(2) should be issued
to the state before the action Is commenced. On the other hand,
when the state is passive or unwilling to initiate a timely,
appropriate enforcement action, EPA should take care to handle
the matter with diplomacy.
Since it is clear, as outlined above, that Congress intended
the states to have the primary enforcement authority of the RCRA
program, if it appears that federal enforcement intervention may be
required, a letter should be written from EPA to the appropriate
state agency administering the program containing the following:
1. A description of the violation, including the name
c address of the violator; the date of violation and location
the facility or site at which it occurred; references to the
;>. ^visions cf the state program which are being violated; and
any other pertinent details which will aid in the identification
and the nature of t.he violation. Additional information, such as
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names of witnesses, laboratory reports, inspection reports, and
other evidence ir» EPA's possession should be offeree upon request
of the state should the state decide to take enforcement action.
•M
2. A statement that under 3CRA and the Memorandum cf
Agreement between EPA and the state, it is the primary obligation
of the state to take necessary and timely actions' to"enforce the
provisions of the state hazardous waste.laws and'regulations, and
that SPA believes it is appropriate that the state take such
action. In some cases, it would be appropriate to suggest the
type of action to be taken,- such as issuance of a compliance
order, other administrative orders, revocation of a permit, or
filing of an injunctive action.
--.-•.. .3>. .-.- A. statement that should the state agency/fail to
take appropriate and timely action by a date certain stated in
the letter, EPA may thereafter exercise its right to initiate
enforcement action under Section 3008(a)(2).
The creation of what is a "timely" action by the state agency
will depend upon a variety of circumstances. If"an uncorrected rio-
lation could constitute a threat to human health cr the environ-
ment, a relatively short period of time may be required for either
the state or EPA to act. If, through telephone conversations or
other communications between EPA and state agency officials, there
is already an indication before the letter is mailed to the state
that it will probably not take action regardless of the request,
then a relatively short period of time (e.g., 10 days) for state
response may be allowed before EPA initiate.* the action. In such
case, the letter should also refer to the previous communication
with the state which indicated the liklihood cf inaction on its par-
On the other hand, if there is an indication that the state will cr
may act, but has failed to do so because of scarce resources or for
other clear and understandable reasons, a longer period of time
may be allowed to give the state ample opportunity .to fulfill its
role as. the primary enforcement authority".
At the end of the time period stated in the letter, if the
state agency has not initiated an enforcement action cr indicated
its willingness and intent to do so, EPA may proceed to commence
action as- the enforcing authority without further notification.
6.
EFFECT OF STATE AUTHORIZATION ON SECTION 7003 A2ID 3013 ACTIONS
Section 7003 of RC3A states, in oertinent part:
" t
"Notwithstanding any other provision of this Act,
upon receipt of'evidence tnat the handling... or"
any solid waste or hazardous waste may present
an imminent and substantial endangerment to
health or the environment, the Administrator
may bring suit ... to immediately restrain any
-------
person contributing to such handling..., or to
taJce such other action as may be necessary.
.The Administrator shall provide notice to"the
affected State of any such suit^. The Administrator
.•nay also, after notice to the affected State/
taxe other action under this section including/
but not limited to/ issuing such orders as mav
be necessary to protect public health and the*
environment." (emphasis supplied)
The first clause of the section indicates that it was the i::te.r
of Congress to allow SPA to take emergency actions to protect husan
health and the environment in cases of i;mainent hazard"/ without re-
gard to any other provisions of the Act. It is not within the scope
of this..memorandum..to .review the purposes.-and uses of Section 7002",
but it i's clear that EPA is not bound by any of the provisions cl a.-.
authorised state's laws or regulations which may appear to restrict
or limit the use of this Section. Again/ however, notice must be
given to the state prior to the commencement of such an action.
It is also clear from the express wording of the section that
only the Administrator of SPA, or other Agency personnel to whom he
has delegated authority/ may taJce the actions authorized by Section
7003, and that therefore a stats which has beer, authorized" to admi.--
ister the hazardous waste program may not employ Section 7003 as a
stats enforcement mechanise. Stares are authorized by SPA to
administer and enforce the hazardous waste program only under Sub-
title C of RCP-A, which does not include Section 7003. dse of
Section 7003 is within the exclusive, province of EPA. This does
not/ however/ prohibit the states from adoption and use of their
own form of imminent hazard authority in the state courts.
The ability of £?A to taJce action under Section 3013 is
likewise unaffected by authorization of a state program. 3y such
authorization, SPA does not relinquish the enforcement options
which it possesses, but merely agrees to hold them in abeyance to
be used in the event the state fails to taJce appropriate and timely
enforcement action.il/ Before issuing a 3013 order to a person i.-.
an authorized state, however/ notice should be given to the appro-
priate agency in the affected state in the manner suggested hereir.,
and reference should be mace to the guidance on issuance of 3013
orders contained in the Memorandum from Douglas Xac-Miiian, Acting
Director of the Office of Waste Programs Enforcement to the Regional
Enforcement Directors dated September 11, 1981, entitled, "Issuance
of Administrative Orders under Section 3013 of the Resource Con-
servation and Recovery Act."
Ai/The model Memorandum of Agreement between EPA and the 'states
pontained in the RCRA State Interim Guidance Manual, provides:
"Nothing in this Agreement shall be construed
to restrict in any way EPA's authority to ful-
fill its oversight and enforcement responsi-
bilities under RC3A."
-------
If you have any questions or probless relating to the matters
contained in this memorandum, please contact Richard H. Mavs cf mv
office at ?TS 332-3108.
cc: Christopher J. Capper
Acting Assistant Administrator
Office of Solid Waste and Emergency Response
Robert M. Perry
C-anerai Counsel . • • -, •
Office of General Counsel
Mr. C. Raymond Marvin
General Counsel
National Association of Attorneys General
444 X. Capitol Street - Rccm 1777
Washington, 3.C. 20001
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\
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9541.1934(04)
WASHINGTON, D.C. 20460
MAY 2 I 1984
Of eiCE Of
SCL:0 WASTE ANO EVEOGESC
PIG-34-1
MEMORANDUM
SUBJECT: Determining Whether State Hazardous Waste
Management Requirements are Broader in Scope
o~r\More Stringent than the Federal RCRA Program
FROM:
Assistant Administrator for
Solid Waste and Emergency Response (WH-562-A)
TO: PIGs Addresses
Issue
How does EPA determine whether a requirement of an authorized
State hazardous waste program is broader in scope or more stringent
than the Federal RCRA program?
Discussion
The March 15, 1QR2 Program Implementation Guidance memorandum
from William Sullivan entitled "EPA Enforcement of RCRA-Authorized
State Hazardous Waste Laws and Regulations" (PIG-82-3) outlined EPA
policy on enforcement of Federal and State hazardous waste manage-
ment requirements in States with cooperative arrangements or
authorized RCRA programs.
The Guidance concluded that State-imposed requirements which
are beyond the scope of coverage of the Federal program are not
part of the Federally approved program (40 CFR 271.1(1) and
271.121(1)). Consequently, such requirements are not enforceable
by EPA. PIG «2-3 also concluded that "provisions in State programs
which are more stringent than their federal counterparts are,
nevertheless, a part of the approved State program and are
enforceable by EPA." [Emphasis added.)
Attempts to distinguish between those State requirements that
are broader in scope and those that are more stringent than the
Federal RCRA program have led to some confusion. The confusion is
partly a result of conflicting information in past PIG's on this
issue. PIG 81-4, discussing delisting of wastes, indicates that
State regulation of more wastes than are regulated by the Federal
program would be viewed as a more stringent aspect of the
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- 2 -
authorized State program. Similarly, page 7 of PIG 82-3 indicates
that "a lesser amount of waste exempted [by the State] from regula-
tion under the small quantity generator exemption" is an example
of a more stringent State program requirement. In contrast,
page 6 of PIG 82-3 states that the listing by a State of wastes
which are not included in the Federal universe is an example of a
provision that is broader in scope.
Decision
To determine whether a particular requirement or provision
of a State program is "broader in scope" (and therefore not a part
of the authorized program) or more stringent (and therefore a part
of the authorized program) the questions discussed below should be
answered sequentially.
(1) Does imposition of the State requirement
increase the size of the regulated community
beyond that of the Federal program?
A State requirement that does increase the size of the
regulated community is more "extensive", not more stringent, and
is an aspect of the State program which goes beyond the scope of
the Federally-approved program. Examples of requirements that are
broader in scope include:
0 a lesser amount of waste exempted from regulation
under the small quantity generation exemption;
0 listing of wastes which are not in the Federal
universe of wastes.
Thus, the examples discussed in PIG 81-4 and on page 7 of PIG 82-3
should have been interpreted as requirements that were broader in
scope and not more stringent. (While this guidance corrects these
two examples, it does not change the policies and other examples
of PIGs 81-4 and 82-3).
If the requirement does not increase the size of the
regulated community, the following question should be asked.
(2) Does the requirement in question have a
direct counterpart in the Federal reg"uTatory
program?
-------
If the State requirement does not have a direct Federal
counterpart," the requirement is also beyond the scope of the
Federal regulatory program. Examples of such state requirements
are:
0 controls on traffic outside of a hazardous waste
facility or specification of transport routes to
the facility;
8 requirements for the preparation of an environmental
impact statement or the approval of a siting board
as part of the permit issuance process;
0 licensing of transporters.
However, if the requirement of the authorized State program
does have a direct Federal counterpart, the State requirement
is either equivalent to or more stringent than the corresponding
Federal regulation. Examples of more stringent State requirements
are:
0 limited financial assurance options for facility
closure?
0 submittal of an annual rather than a biennial report
for generators;
0 expiration of permits after five years instead of ten.
This guidance supports those enforcement policies outlined
in PIG 82-3, and should resolve many of the questions concerning
the scope of the Federal and RCRA authorized State regulatory
programs. We also anticipate that this guidance will be useful
in focusing the scope of EPA oversight of State programs. As
PIG 82-3 states, EPA enforces the more stringent provisions of
RCRA authorized programs; therefore, EPA has a corresponding
responsibility to overview implementation of those aspects of
State programs which are more stringent.
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9541.1984(05}
13 JUN 1984
- -3
3 •
£^ £
n o
X i—
•3
SUBJECT: Transfer of Federal RCPA Permits to Authorized States Z.
and Compliance with 40 CPB *124.10(e) jf
m
FRO'4: Truett V. P«neare, Chief ^
State Programs Branch ^
»
TOi Hazardous Waste Branch Chiefs, Region I-X ^
cr.
i
ISJ
Recently, there has been some confusion over whether £
Federal RCPA permits continue in States which receive
Phase II or final authorisation. This policy was explained
in PIG-82-5, dated August 5, 1982, with regard to Interim
authorization (copy attached) . The same policy applies to
final authorization.
The receipt of final authorization is not contingent
upon the State assuming permit responsibility for those PCRA
permits issued by CPA; nor is the granting of authorization
cause for termination of an EPA-issued permit. FPA-issued
permits continue in force until terminated under 40 C?R
$270.43 for cause (e.g. , noncompliance by the permittee) or
transferred by agreement between the permittee and EPA as
provided in f 271. 8(b) (6) . (See also f!24.5(d).) The State
must eventually issue a State RCPA permit or assure responsi-
bility to administer the Federal permit if it has the authority
to do so i however , it does not have to do so immediately as
a condition of receiving authorisation.
Another permit Issue which has arisen recently is
failure to comply with 40 CF» Cl24.in(e). That section
requires a copy of the fact sheet or statement of basis, the
permit application an* the draft permit to be irailerl to all
persons identified in f 124. 10-issue<<
permit has been challenged for failure to coirrly with <124.10(e)
(PCRA appeal No. 83-5 In the Matter of w**te Technclrpieg
Industrie*) , in that case, the State of v.'est Virgin!* clai""eH
that it was unlawfully prevented fro-; filing tirely correrts
or a perrit application because the Pecjion failed to oive it
certain supporting docurents. It w** entitled to receive
those documents (draft pemit and perrit ar;lic«tion) as an
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-2-
•affected state' under ?124.10(c) (l ) ( ill ) . The Administrator
remanded the watter to the Pegional Adninit trator for the
Halted purpose of reopening the public confront period.
Please observe this requirement and remind State* with
Phase XI or final authorization to comply with it as well.
If you have any quention* on theae issues, pleas* call Deborah
at 382-222?.
Attachment
cct Bruce Weddle
Ftatc Prograw* Branch
Gail Cooper, occ
Pusan
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9541•1984(08)
WASHINGTON O.C. Z3460
(.'CD I -3 :=
«-<-r I J J
MEMORANDUM;
SUBJECT: Radioactive Waste Exemption in North and South
c«« cs 2*
SCL.3 «»ST6 ANO sVEaCENC" «es»osse
FROM: Lee M. Thomas
Assistant Administrator
TO: Charles R. Jeter
Regional Adminstrator
Region IV.
Thank you foe your memorandum of July 11 regarding the
exemption of radioactive materials in North and South Carolina's
hazardous waste statutes. You asked whether their programs
could be authorized with these exemptions. The answer is yes
for trie reasons described below.
On February 21 I wrote to Regional Administrator Ernesta
Barnes on the subject of State regulation of radioactive wastes.
In that memorandum I explained that there are three categories
of radioactive waste. The first category - source, special
nuclear and by-product materials defined by the Atomic Energy
Act - is excluded from the definition of solid waste in RCRA;
therefore, RCRA does not provide authority for us to regulate
these wastes as hazardous waste and we do not require authorized
States to do so. The second category is "mixed" waste; i.e.,
those wastes which consist of source, special nuclear or by-
product material and RCRA hazardous waste. At the time of my
writing, we had not determined the extent of EPA's authority
over such wastes, and therefore did not require States to have
jurisdiction over or regulate "mixed" wastes. The final category
consists of radioactive wastes outside of the source, special
nuclear or by-product universe such as naturally-occurring radio-
nuclides and accelerator-produced radioisotopes. Such wastes are
also hazardous if they are listed in 40 CFR Part 261, Subpart D,
or when they exhibit any characteristic identified in Part 261,
Subpart C.
North and South Carolina's laws do not extend the full range
of RCRA controls over this last category of radioactive hazardous
wastes. A question has arisen about whether any of these wastes
in fact exist. Since no wastes currently listed in Part 261,
-------
Subpart D, are radioactive, we focused on whether there are any
naturally-occurring or accelerator-produced wastes that exhibit a
Subpart C characteristic. After checking with the Office of
Radiation Programs, which has consulted with the regulated commu-
nity and research organizations, we have determined that no such
wastes are known to exist (copy of memorandum attached). From
this determination we now conclude that it is inappropriate to
require States to demonstrate control over this hypothetical
category of was'tes to obtain final authorization. Accordingly,
North and South Carolina need not amend their statutes to obtain
final authorization.
I also wish to apprise you of recent developments in the area
of those mixed wastes which consist of source, special nuclear, or
by-procluct material and RCRA hazardous waste. Since issuance of
the February 21 memorandum, we have determined that RCRA authority
does extend to these mixed wastes. We are now working with the ~~)
Department of Energy to determine how best, under RCRA and the C
Atomic Energy Act, to implement this authority. States need not^J
yet revise their programs to regulate mixed wastes since EPA must
still resolve some definitional issues. However, you may wish to
advise them of this development, should they wish to initiate
changes in their programs to obtain legal authority to regulate
mixed wastes. At that time we would also advise states to obtain
jurisdiction over the third category of non-excluded radioactive
and hazardous waste in the future event that a non-excluded radio-
active waste is listed or we discover that such a waste exhibits a
hazardous characteristic. Once we have defined our implementation
program we will work with the Regional Administrators to guide
States in revising their programs as required by 40 CFR $271.21,
In the meantime, EPA is responsible Cor implementing the RCRA
program wi-th respect to mixed wastes.
I appreciate you bringing this situation to my attention.
Please let me know if you have further questions.
Attachment
cc: Regional Administrator, Regions I-III and V-X
Regional-Hazardous Waste Division. Director, Regions l-x
Regional Counsel, Regions I-X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
'"• AUG1 1984
e.. Existence of Hazardous Non-Excluded Radioactive Wastes
* •
*CM' Waste Management Standards Branch
Criteria & Standards Division (ANR-460)
TO John H. SVtinner, Director /.
Office of Solid Waste (WH-562B) / \:
I ' ''
THRU: Richard J. Guimond, Director.!""^
Criteria.and Standards Division (
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9541.1984(09)
9
I
\
5 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
orrict or
OBNBNAk. COUNSEL
APR 4864
MEMORANDUM
SUBJECT: Status of Federal Permits in
States Which Have Received RCRA
Final Authorization
FROM: Gail B. Cooper7 *J (I . * AJ^/^'
Attorney S*" ~ <^—
TO: Bruce Weddle
Director
Permits and State Programs
Division (WH-563)
In August 1982, OSW issued a Program Implementation
Guidance memorandum (PIG-82-5) on the status of federal
permits after a state receives interim authorization. You
have asked us whether the same guidance may legally apply
to final authorization. In addition, you requested that we
commit to writing the legal advice we gave you orally when
PIG-82-5 was being developed.
Background and Conclusion
Under RCRA S3006 and 40 C.F.R. Part 271, a state which
has received interim or final authorization operates the RCRA
..program in lieu of EPA. Among other things, upon approval
of a state program, EPA suspends the issuance of Federal
permits for those activities included in the authorized state
program. 40 C.F.R SS271.1(f) and 271.121(f). The status of
existing federal permits after authorization is less clear,
however. In 1982, the following question arose: if state
RCRA permits comparable to existing federal permits are not
issued at the same time the state receives interim authorization,
do existing federal RCRA permits remain in effect? We concluded
then that the more persuasive interpretation of RCRA was
that federal permits remain in effect until terminated in
compliance with 40 C.F.R. Parts 270 and 124. Because the
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•2-
pertinent statutory and regulatory provisions are the same
for interim and final authorization, the same conclusion
would hold for final authorization.
*»
Discussion
Sections 271.8(b)(6) and 271.126(c)(1) of the RCRA state
authorization regulations provide that the Memorandum of
Agreement (MOA) between the state and EPA oust contain provisions
specifying a procedure for transferring the administration
of existing federal permits to the state. They further provide
that if "a state lacks authority to directly administer permits
issued by the Federal government, a procedure may be established
to transfer responsibility for these pennies." An example of
such a procedure is provided in a note to 5271.8(b)(6): the
state, EPA and the permittee could agree that "the State would
issue a permit(s) identical to the outstanding federal permit
which would simultaneously be terminated." I/
This provision clearly provides that EPA-state procedures
on the transfer of permits must be established but is silent
on whether such transfers must be effective on the date of
authorization. This issue was addressed for interim authorization
on August 9. 1982 by a Program Implementation Guidance memorandum
(PIG-82-5). The memorandum concluded thac federal permits remain
in effect after Phase II authorization until the state issues a
RCRA permit or assumes responsibility for administering the
federal permit if it has the authority to do so. According to
the memorandum, federal permits do not terminate automatically
but must be terminated according to the procedures in S270.43 or
by agreement of the permittee and EPA. To avoid the need for
EPA administration and enforcement of federal permits in authorized
states, the memorandum strongly encouraged the states to issue
state RCRA permits or administer federal RCRA permits as soon as
possible.
As we indicated to you, it is conceivable that someone
'could challenge the policy reflected in the memorandum in a
permit or enforcement proceeding by arguing that since section
3006 provides that the State carries out the RCRA program
"in lieu of the federal program" upon authorization, federal
permits terminate automatically upon a state's authorization.
Following thac interpretation, the state would have to be
II Section 124.5(d) provides that EPA does not have to
issue a notice of intent to terminate a permit in
this situation.
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-3-
able Co assume or administer the Federal permit (or issue
its own RCRA permit) at the time it was authorized in order
for the facility to continue to have a RCRA permit.
We do not find that argument persuasive. Many states do
not have the statutory or regulatory authority to administer
federal permits or to issue their own RCRA permits as of the
date of authorization.' If federal permits automatically expired
upon a state's authorization, a facility could be left without
any permit (if there were no state permit for that facility)
or could continue to operate under a state permit with less
stringent requirements than were contained in the federal RCRA
permit. Given Congress' general goal of providing for the
effective regulation of hazardous waste and the "no less stringent
requirement" in Section 3009 in particular 2/, it is difficult
to conceive that Congress would have' intended that the transfer
of authority from EPA to a state result in a decrease in
environmental protection. In our view, PIG-82-5 is a reasonable
interpretation of our legal authority, designed to assure that
authorization of a state program does not cause a facility to
lose its permit or allow a facility to benefit from relaxed
permit requirements. 21
The analysis is supported by a case dealing with the NPDES
program under the Clean Water Act (CWA). In Central Hudson
Gas and Electric Corporation v. U.S.E.P.A., 587 F.2d 549, 560
(2nd Cir. 1978), EPA had issued a NPDES permit which was partially
contested. Before the Part 124 adjudicatory hearings began on
the contested provisions, the State NPDES program was approved
by EPA. The State and EPA arranged for EPA to continue to
handle the adjudicatory hearings and any subsequent litigation.
The permittee challenged EPA's authority to do so, pointing to
the CWA provision which states that when a state program is
I/ Section 3007 provides that ... "no state or political
subdivision may impose any requirements less stringent
than those authorized under [subtitle C] respecting the same
matter as governed by such regulations ..."
21 EPA does not have the same leeway if the federal permit has
not yet been issued. 40 C.F.R. 271.l(f) specifically
provides that "Upon approval of a State permitting program,
the Administrator shall suspend the issuance of Federal permits
for those activities subject to the approved State program."
Thus, even if EPA has already issued a draft permit and held
public hearings, it may not proceed to issue a final RCRA permit.
This obviously makes it essential for EPA and the state to allocate
permitting resources efficiently in the period before a state
receives authorization.
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.4-
approved by EPA, che EPA must "suspend the issuance of permits."
33 U.S.C. S1342(c)(l). EPA argued that the permit had been
issued, so that this provision did not govern.
The court deferred to EPA's position that the permit had
been "issued" and did not get into the broader issue of what
happens to EPA permits after NPDES approval. To that extent,
the decision does not address the same legal issues we might
confront. However, the court's reasoning is relevant; it
concluded that the*statutory policy of having states implement
the NPDES permit program was outweighed by the Act's primary
objective to restore and maintain water quality. The court
was persuaded by EPA's argument that the permittee's
interpretation would produce duplication, waste, and delay,
and disrupt the state program because the state would not be
prepared to bear the sudden transfer of the permit. The Court
did not wish to discard the transition mechanism EPA and the
state had worked out. While there are differences between
the CWA and RCRA, the similar statutory goals and problems
of transitions from EPA to state regulation make this case
a helpful precedent for PIG-82-5.
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9541.1985(011
n n n r
o o o 2
33^1
H ft i \j\
'MAR 6 « 1985. -,. ||||
3 0 3 •
«• • no
5. »
O W 3
• CD » -
MEMOKAHDOU X o *
a *-
SUBJECT i KRA Permit Keagthorlsation Xesues in Region III
ft a „
w -
fROHt John B. Skinner, Director .-.. .'._ ____ ,_„ :_ . < x)f
Office of Solid Hast* (WH-SC2) * \«
OD M
TOt 8t«v»n R. »»•«•• r»uQ, Director ^i,
• lasardoac Hast* Managaavat Dlviaioo, Xagioa ZZZ _.
This MHoraixJua !• !• r«>pona« to tha *ari«« of quaatio&a
raisad in your »«f»orandu» of February lf 1§83, regarding isauanea
of RCJlA pemita in authorised Itatea in light of the new reauthor-
icatien »»«nd»«nta. Several of the iaauea you raieed have been
addressed in the draft guidance on corrective action Cor continuing
releaaet (dated January 10, IMS) and the draft guidance on joint
permitting r which vaa distributed in early Deceaber. We are pre-
paring additional guidance on CTVState pervitting* which ahould
be distributed in draft very shortly* ... --
It ahould be understood that Most of the following responses
to the specific questions raised In your Btenorandua reflect our
current thinking, and are based on preliminary policy interpreta-
tions which have not completed the Agency* a formal review and
concurrence process. Our responses are) as follows t
• -» ' '••• -••••— .». i..*^,., ,..t. . _, . ,.. . _ i --•CT«. .. ,
A. Aberdeen Proving Grounds. As stated in the 1/30/tS
draft guidance on corrective action for continuing
releases* the) fseility is the entire contiguous property
under the control of the owner/operator, at which the
hazardous waste management units are located. Thus,
the entire army base must be taken into account when
considering continuing releases for the purposes of
this permit action.
A permit issued after November 8, 1984 , is not a
fully effective RCRA permit unless it addresses all
applicable provisions of the reauthorisatior. amendments,
as well as the regulations currently in place in the
authorised State. However, the State may isaue its
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-2-
•State" permit to the facility, without the new require-
ments of th« amendments having been addressed by EPA.
Ontll the State receives authorisation for the new >
amendments, its permits are State permits, and not RCRA
permits. Region III should issue the Federal portion
of the permit addressing the provisions of the new
aaendments as soon as practicable* consistent with the
overall program priorities in the Region. • -When this ••
Federal portion of the permit is issued, it will combine
with the State permit to become the RCRA permit. In
this situation, provision* of -the State permit would be
reopened only if provisions of the State permit are
affected by the Federal portion of the permit.
B. - Spectron. Until the state is authorised for the
continuing release provision, implementation of the
provision must be done by EPA. We would urge that,
if possible, a joint and simultaneous RCRA permit be
issued to this facility by SPA and the State, (see
the 1/10/SS draft corrective action guidance). ••_•.•.*
- " Tf the Federal portion of the permit cannot be :-
prepared within the State's timetable for the permit,
the State may chooee .to leeue the State permit to the ~
facility without the Federal portion. Until the Federal
portion is issued, Region III has the option of using
an interim status corrective action order t$3008(h)J to
require the owner/operator to begin any necessary remedial
investigations at the facility.
D. •aval Shipyard. -The fact that the facility notified
under flOJ(c) of CBRCLA does not affect EPA's ability
to issue a RCRA permit to the facility. Any releases
that may be at the facility can and should be addressed,
either through a RCRA permit, a RCRA interim status
corrective action order, or through State enforcement
action, as appropriate.
E. Defense General Supply. As you nay know, guidance is
currently being developed on the Agency's policy toward
RCRA facilities that are also listed on the National
Prioritv List (NPL), in light of the new RCRA corrective
action authorities. This policy guidance is expected to
be issued in the next few months. Until the guidance
is issued, we would tentatively advise that if CERCLA
remedial measures are already being conducted at a RCRA
facility, those activities should continue under CERCLA.
Zf, on the other hand, the CERCLA remedial process is
-------
not yet underway at the facility (i.e., a RI/FS has cot
v yet been done), it would be appropriate to use the RCRA
permit or a RCRA f3008(b) order to provide for corrective
measures.
..•,.»..»••
S. Allied Bermuda-Hundred* The determination as to
whether or not a releaae that poses a threat to human
health and the environment has occurred, or is likely
to have occurred* can only be made by EPA (or by the
State when it ia authorised for the continuing releaae
requirements). This determination is based on infor-
mation submitted to EPA by th« owner/operator regarding
the solid waate management units at the facility, and
any available information on releases from those unit* v
(see Reauthorisation Statutory Interpretation 13,
February 5, 1985).
P. Dupont 8dqemoor. Section 270.10(f)(l) requires
that physical construction of a facility cannot begin
until the facility has secured a "finally effective
RCRA permit." Therefore, before construction of the.:
hazardous waste storage tank can begin, • permit which
addresses both the applicable State requirements and
the new RCRA f3004(u) requirement must be Issued to the
facility* Aa explained in the January 30 guidance) on
continuing releases, investigations of releases from
the solid waste disposal unit at the facility, and
development of a program of corrective measures, can
take place under a schedule of compliance after the
permit is issued* However, the owner/operator cannot
begin construction or operation until the Region issues
its portion of the permit.
C. In regard to the hypothetical situation posed on
page three of your memorandum, the State may iasue the)
State permit to the facility and continue to require
cleanup activities under a State compliance order.
This will not of itself, however, constitute compliance
with the S3004(u) requirements. Only CPA can implement
this provision (until such time as the State becomes
authorized for it). When EPA iasues its portion of
the permit, any remaining remedial investigations and
corrective measures will be carried out under the
permit. If this scenario is followed, we would urge
that Region III and the State coordinate to ensure
that the investigations and corrective measures imposed
under the State enforcement order would be consistent
with those which EPA would require under the permit
when it is issued.
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the answer* to your general question on how EPA and a State
interact during joint permitting procedures .are ad dree ••
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9541.1985(05)
May 6, 1985
MEMORANDUM
SUBJECT: Applicable Management Standards for Wastes Newly
Regulated Pursuant to HSWA
FROM: Bruce R. Weddle, Director
Permits and State Programs Division (WH-563)
TO: Kenneth Feigner, Chief
Waste Management Branch (M/S 533)
Region X
This is in response to your memorandum of April 4,
addressing the question of which standards (EPA's or an
authorized State's) apply to the management of wastes which
become regulated in authorized States as a result of EPA
rulemaking pursuant to HSWA.
We agree with your conclusion that when EPA promulgates
additions to Part 261 pursuant to HSWA, it is EPA's standards
which are applicable to handlers affected by the new regulations.
This situation continues until the State revises its program
pursuant to 40 CFR 271.21 to add the wastes to its regulated
universe and receives EPA's approval.
You are also correct in that, while States may participate
in implementing the Federal requirements through agreements with
EPA, EPA retains ultimate responsibility for the Federal program.
Only EPA can issue RCRA permits with respect to the new wastes.
While EPA may defer to authorized States that are taking timely
and appropriate enforcement actions against violations with
respect to the new wastes, EPA also retains ultimate enforcement
responsibility.
We appreciate your raising this issue, and it will be
discussed in the RCRA Reauthorization Statutory Interpretation
memorandum (RSI) on joint permitting.
cc: Hazardous Waste Branch Chiefs, Regions I - IX
State Programs Branch
Gail Cooper, OGC
This has been retyped from the original document.
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9541.1985(07)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MAY 85
Manifest Use and State Authorization
*
3. A spent solvent, which is hazanVxis by characteristic only (e.g. ignitable-
D001), is transported from the generator in Montana, to a reclamation facility
in Texas. Both Montana and Texas are states with final authorization for
the RCRA program. The transporter will also go through Wyoming which is a
non-authorized state (i.e., it is under the Federal RCRA program).
Pursuant to 40 CFR §261. 6(a), characteristic x»^>T^V»jff wastes which are reclaimed
are not subject to RCRA regulations. According to §261. 2 (c) as anended by the
January 4, 1965, Federal Register (50 EK 614), however, all spent solvents,
characteristic or Listed, will be defined as "spent materials'1 and will be
regulated as "solid wastes" prior to reclamation. Thus, per §261. 6 (b), in the
January 4, 1985, rule, generators and transporters of recyclable hazardous
materials (e.g., spent solvents) are subject to Farts 262 and 263 (generator
and transporter standards, respectively). The ccnplicating factor is that this
new definition of solid waste and respective recycling regulations nay go into
effect at different tines throughout the country depending on whether a state
is authorized or not.
The January 4, 1985, rule will be effective in non-euthorized states on July 5,
1985. States with final authorization, such as Montana and Texas, may have up
to January 4, 1987, to adopt this rule. Therefore, a characteristic ignitable
spent solvent win be a regulated hazardous waste prior to reclamation in non-
authorized states on July 5, 1985. In the transport situation described above,
is the transporter required to carry the Uniform Hazardous Waste Manifest in
Wyoming, since the spent solvent is a •hazardous waste" in Wyoming on July 5,
1985?
If the spent solvent is transported fron Montana to Texas (EEK-authorized
states) after July 5, 1985, the transporter need not carry the Uniform
Hazardous Waste Manifest, even though the spent solvent is transported
through Wyoming, which regulates the solvent as a RCRA waste. States through
which the waste shipment travels nay not dictate manifest requirements per
49 FR 1049 (March 20, 1984). When either the generator state (Montana) or
the~aesignated stats (Texas) determines that the waste is hazardous, that
waste win be subject to the Uniform Manifest requirement*.
Source: Denise Hawkins (202) 382-2231
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9541.1985(09)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D C 20460
JUL I 1985
MEMORANDUM
SUBJECT: RCRA Reauthorization and Joint Permitting in
Authorized States:
RCRA Reauth.Cvtfization Statutory Interpretation *5
FROM: J/'ack W. McGr'aw *""
Acting Assistant Administrator
TO:
Addressees
Section 3006(g) of the Hazardous and Solid Waste Amendments
of 1934 (HSWA or the Amendments) provides that hazardous waste
requirements and prohibitions promulgated pursuant to the
Amendments are applicable in authorized States at the same time
they are applicable in unauthorized States. HSWA also mandates
incorporation of many of these requirements in all Resource
Conservation and Recovery Act (RCRA) permits as of November 8,
1984, in both authorized and unauthorized States. In addition,
§3005(c)(3) of the Amendments provides EPA with the authority
to incorporate into permits any requirement necessary to protect
human health and the environment, even if EPA must go beyond
the specific requirements or prohibitions found in the statute
or regulations.
A permit cannot be considered a RCRA permit unless it
contains all the applicable new requirements of the Amendments.
A State must be specifically authorized for provisions of HSWA
to issue a RCRA permit. Section 3006(c) of HSWA provides EPA
with the authority to issue permits for the new requirements
and prohibitions until a State is authorized to do so. That
section provides that in an authorized State the Administrator
"shall have the authority in such State to issue or deny permits
or those portions of permits affected by the requirements and
prohibitions established by the Hazardous and Solid Waste Amend-
ments of 1984. The Administrator shall coordinate with States
the procedures for issuing such permits." This guidance discusses
the implementation of the joint permitting process through which
this coordination will occur.1 Our intent in addressing this issue
is to continue the permitting process, in cooperation with the
States in as efficient and expeditious a manner as possible.
1 Note that there are also requirements of the HSWA which are
self-implementing. They take effect regardless of whether
a permit is being issued; for example, the ban on disposal
of hazardous wastes in salt domes (Section 3004(b)).
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JOINT PROCESSING; FORMAT AND TIMING OF THE RCRA PERMIT
The joint permit may be issued in two ways. There can
be one complete permit with signatures of both the State
Director and the Regional Administrator (RA) on the same
document. The other alternative is to issue two incomplete
permits, one signed by EPA and one signed by the State. In
either situation signatures by EPA and the State are necessary
to provide the facility with the authority to operate under
a RCRA permit.
If a single complete permit is issued, it is especially
important to have a clear identification of which provisions
stem from Federal authorities and which stem from State
authorities. This identification will clarify enforcement
responsibilities and will enable an interested party to
determine the appropriate authority to approach when appealing
a yiven permit condition.
Where incomplete permits are issued simultaneously,
only those conditions stemming from one authority would be
attached to the respective signature. EPA would issue the
portion addressing only those HSWA provisions for which the
State has not yet received interim or final HSWA authorization.
The authorized State would address all other RCRA and State
conditions and requirements. The two parts together (whether
one document with two portions or two portions put together)
would address all the conditions required in a RCRA permit.
(See Draft permit section on page 7 for a discussion of how
these conditions should be addressed.) This is generally the
preferable option as it clearly separates the State and Federal
requirements yet it provides the. facility with a complete RCRA
permit. However, the decision whether to issue one complete
or two incomplete permits is ultimately left to the Regions and
States; legally, there is no reason to prefer one over the other.
It is EPA policy that State and Federal portions of the
RCRA permit be issued simultaneously. However, prior to the
date of enactment of the HSWA, States with Phase II or final
authorization were processing permit applications toward
final determinations. Many of these permits have already
been issued as draft permits. States with Phase II or final
authorization that issued draft permits prior to April 8,
1985, (the date the RCRA Implementation Policy was signed
announcing that joint permits must be issued simultaneously)
should proceed as planned to take final action during fiscal
year 1985 on these draft permits. The State permits will
fulfill State law but they will not be RCRA permits.
EPA will then assign a high priority to these facilities,
so that the Federal portion of the permit can be issued as
soon as possible, or a rapid determination can be made that
a Federal portion is unnecessary. For all other permits,
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i.e., those permits which have not reached the draft sta^e
by April 8, 1985, or pre-April 8, 1935, draft permits whicn
are not issued as final permits in fiscal year 1985, States
and EPA must plan on simultaneous issuance of the State and
Federal portions of the RCRA permit.
A new facility is not allowed to begin construction unless
both the State and Federal portions of the permit have been
issued, providing the facility with a RCRA permit. If a new
facility received only the State's portion o£ the permit, it may
not begin construction since that portion does not, in itself,
constitute a RCRA permit. For facilities that want to expand, if
the expansion is such that the facility would require a RCRA
permit (i.e., it is not an expansion allowable under interim
status), then the facility also must receive both the State and
Federal portions of the permit prior to expanding.
PROCEDURAL ASPECTS OF ISSUING STATE AND FEDERAL PERMIT PORTIONS
Most RCRA permits will he issued simultaneously by EPA
and the States. Procedures to be followed for simultaneous
issuance are discussed in the "Implementation Analysis"
section. This section discusses those instances, described
above, where the State and Federal portions of the permit
are not issued simultaneously.
The procedures for issuing a joint RCRA permit in these
cases will vary depending upon whether the State has issued a
draft or final permit. Where the final State permit has been
issued prior to the issuance of the EPA permit, the expira-
tion date will coincide with that established for the original
State permit. There are two possible permitting situations:
1. State issued draft permit prior to April tt, 1985, and
EPA issues draft permit prior to final State permit;
State issues final permit before EPA issues final permit.
Where a State has already issued its draft permit, EPA
will make this permit a high priority for action. EPA will
determine whether and how the facility is affected by the
HSWA requirements since the State is not authorized to make
a determination about the applicability of the Amendments.
When EPA makes this determination, it will either:
- issue a draft permit containing appropriate
conditions addressing HSWA, or
- where CPA finds that the facility is not affected
by HSWA, issue a notice explaining our tentative
decision. This means that no corrective action
will be necessary, no other HSWA requirements
apply, and no additional requirements to protect
human health and the environment are necessary.
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EPA will follow the procedures in 40 CF? Parr. 124 in issuing
tne draft permit or notice of our tentative decision that the
facility is not affected by HSWA.
EPA's Fact Sheet or Statement of Basis should explain the
relationship between the EPA action (draft permit or tentative
determination that a HSWA permit is unnecessary) and the
previously-issued draft State permit. It should explain that
EPA's final determination will be made simultaneously with
issuance of the final State permit or that EPA's final action
will occur after tne State issues its final permit. In the
latter event, the notice should explain that the facility will
have a RCRA permit only when final permit actions have been
taken by both EPA and the State. The State may wish to send
a letter to the facility to inform the owner/operator that
she/he does not have a RCRA permit until EPA covers the new
HSWA requirements in an EPA permit or determines that an EPA
permit to address HSWA is unnecessary.
If EPA determines that a permit is necessary to impose
HSWA requirements, and that the draft HSWA permit would
affect the draft State permit, the State is strongly
encouraged to redraft and, if appropriate, renotice its
permit at the same time EPA drafts and notices its permit.
In some cases there could be a direct conflict between the
two permits. If States have the authority to remove permit
conditions that conflict with HSWA requirements, removal
of such conditions before the permit is issued would avoid
the later issuance of two conflicting permits and the need
to explain that the HSWA permit supersedes any conflicting
State requirements.
In other cases decisions made by EPA concerning HSWA
requirements may affect the State portion of the permit
even though they do not conflict with the State approach.
For example, as a result of EPA technical requirements,
it may be necessary to revise the closure plan. It would
be preferable for the State to revise the closure plan in
its permit, making it unnecessary for both the State and
EPA permits to cover the same areas. However, if the State
is unwilling or unable to modify its draft permit, both the
State's final permit and EPA's draft and final permits must
indicate that HSWA requirements in the EPA portion of the
permit supersede any inconsistent or less stringent State
permit requirement. A Fact Sheet for the final EPA permit
must specifically identify the conflicting State provisions
which are superseded in order to avoid ambiguity about
whether the State or Federal permit condition in a particular
area is the operative requirement.
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2. State has issued both the draft and final permit before
EPA issues its draft permit.
In issuing its portion of the permit in this situation,
EPA should proceed as described above, by making a determina-
tion about the applicability of the Amendments and issuing
either a draft permit or a notice of our tentative decision
that the facility is not affected by HSWA.
Where the State does not open its permit, the State is
encouraged to issue a notice in conjunction with EPA's final
permit which announces that when the State permit was issued
it was not a RCRA permit, the State permit does not address
the HSWA provisions, and that the State did not reopen its
permit. In addition, the State may wish to send a letter to
the facility as described above.
The EPA Fact Sheet should explain the relationship between
the EPA action and the final State permit. EPA should explain
that once EPA makes its final decision, the combination of the
State and Federal permits (or decision that a Federal permit is
not necessary) will meet the requirements for a RCRA permit.
In the situation described previously — where the State
permit conflicts or overlaps with the HSWA requirements EPA
is imposing — the State is strongly encouraged to modify its
permit. If, however, the State is unwilling or unable to
reopen its permit (e.g., there is no "cause for modification"
under the State regulations to cover the type of change that
would be necessary), EPA should proceed to issue its permit,
making sure that the EPA permit states that the HSWA require-
ments supersede any inconsistent or less stringent State
permit-requirements. As explained before, the Fact Sheet for
the RCRA permit must specifically identify whether the State
or Federal permit condition in a particular area is the
operative requirement. In any of these permitting situations,
if a State believes it must follow additional procedures in
order to meet the requirements of State law it should do so.
JOINT PERMIT IMPLEMENTATION
The joint permitting relationship must be defined by the
Regions and authorized States. The Regions and States will
need to:
0 establish procedures for coordinating the joint
permitting process;
0 establish procedures and schedules to obtain additional
information from permit applicants;
0 notify those facilities who have already submitted
applications about the new requirements and their
need to address them.
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- 6 -
Authorization Memoranda of Agreement (MOA's) need to be
amended or other agreements executed to define EPA and State
roles in the permit process.
As stated earlier, the Amendments specifically provide
that the States may participate in implementing the new
provisions. An authorized State would participate in
applying the HSWA requirements to the same extent that an
unauthorized or Phase I State may currently participate in
the Federal permit process. The States can take the lead
on the technical review of the application, preparation
of the draft and final permit, preparation of the public
notice, review of public comments and preparation of the
response to comments; but the joint role must be clearly
understood. The State is assisting in processing the
Federal HSWA portion of the permit, but EPA has the ulti-
mate decision-making authority for those aspects of RCRA
permitting for which the State has yet to be authorized.
IMPLEMENTATION ANALYSIS
This section discusses the major steps in the permit
process and how each would be affected under joint permitting.
The Regions may wish to consider additional changes to MOA'S
to address the following discussion in greater detail.
1. Permit Application Request - Where possible, there
should be one application request issued jointly by EPA and
the State. The request should make clear which requirements
are State and which are Federal. Duplicates of the same
application should be sent to both EPA and the State. Requiring
only one application makes it easier for the applicant since
she/he need not separate the State and Federal requirements in
the application. CPA must receive a copy of the State portion
in order to consider whether any additional requirements are
necessary to protect public health and the environment, pursuant
to $3005(c). The State maintains the overall lead in the
process, with CPA responsible for the provisions which stem
from Federal requirements for which the State is not authorized.
Where an authorized State has requested a permit
application before HSWA, that request will retain its validity
for the State's program. However, where information is needed
to address the new requirements, EPA must request the additional
information if the State does not have the authority to demand
such information.
The applicant should be given time to comply with the
request for the new HSWA information if necessary; the amount
of time granted is subject to the Region's discretion as
negotiated with the State. Where the new request creates a
burden for the permit applicant, additional time should clearly
be granted. The additional time should be granted only to
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accommodate the new burden; the State's original time frame tor
receipt of information from the applicant will apply to the
original application request.
2. Completeness Determination - Ideally, the completeness
determination should be a joint decision. Since there is only
one application, one determination will facilitate the process
for the applicant. If one Agency finds the application to be
incomplete prior to the other Agency's determination, it can
issue a Notice of Deficiency (NOD) or commence an enforcement
action, where appropriate. However, the draft permit cannot
be issued until both the State and Federal draft permits have
been prepared. If one portion of the application is not
complete, another completeness determination will be made for
that portion only after the date on which the newly requested
information becomes due. If both portions of the application
are incomplete, a joint completeness determination will be made
once the newly requested information is received. In either
situation, it is only at that later date that an owner/operator
would be subject to enforcement action for an incomplete
application based on an NOD for the newly-requested information.
3. Application Deficiencies - Where possible, a joint
NOD should be issued with the appropriate enforcing authority
issuing the appropriate portion of the NOD. Where deficiencies
occur in both the State and Federal portions of the application,
the applicant should receive notice simultaneously from both
parties to facilitate the applicant's response. Either two
NOD's should be issued at the same time, or one document can
be issued signed by both parties, so long as it explicitly
states which requirements stem from which enforcing authority.
If, however, the deficiency relates only to a State provision,
the State will issue the NOD with a statement explaining that
only the State portion is deficient. Where necessary, separate
NOD's for State and Federal deficiencies can be issued at
different times.
4. Draft Permit - The draft permit (or intent to deny)
will be issued simultaneously by CPA and the State (unless
the State draft permit was issued prior to April 8, 1985).
The joint draft permit would be physically similar to any
other draft permit except that it would contain two parts,
specifically identifying which provisions stem from State
authorities and which from Federal authorities. As discussed
earlier/ the two parts may be issued as either one or two draft
permits as determined by the Region and the State.
The Fact Sheet or Statement of Basis should be jointly
written (as should the public notice) and should include
separate discussions of Federal and State issues. An
authorized State can enforce its approved analogue to the
generally applicable requirements of 40 CFR 270.30. As a
result, the State's parallel provisions to 40 CFR 270.30 will
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De applicable to both the State and Federal portions cf the
permit. The Fact Sheet or Statement of Basis should contain
an explanation of these requirements.
where possible, permit writers should avoid putting
conflicting requirements into joint permits. This could occur,
for example, if a State authorized for the pre-HSWA single liner
requirement includes such requirements in its portion of the
permit, while EPA includes the HSWA double liner requirement in
its portion. Where possible, the State should agree not to
include those requirements which are inconsistent or less
stringent. There may be situations, however, where a State
only has legal authority for single liners and has no discretion
to do otherwise. Therefore, where less stringent requirements
cannot be eliminated, the Fact Sheet (or Statement of Basis)
should state that the more stringent requirements always take
precedence and should include a summary of the operative permit
conditions. In this way, the facility and the public will know
what requirements must ^e fulfilled and confusion from permits
which contain conflicting requirements will be minimized.
5. Permit Procedures and Public Participation - Public
participation activities should be conducted jointly. The
EPA Region should follow the State's hearing procedures and
requirements (adhering to the State's processing deadlines)
even where those requirements are more stringent than tPA's.
EPA would serve as the hearing officer for purposes of the
Federal provisions of the permit.
To the extent that the State desires and EPA resources
allow, the Regions should participate in other aspects of
the State's public involvement process. However, EPA is not
bound to participate in procedures which are not part of the
State's authorized program. State imposed requirements which
are beyond the scope of coverage of the Federally approved
program are not enforceable by EPA, nor is EPA hound by them.2
Requirements for environmental impact statements (£IS's) and
siting boards are specific examples of State requirements
which are "broader in scope" than the Federal program and,
therefore, although they may be needed as a matter of
State law, EPA need not participate with respect to EPA's
portion of the permit.
6. Final Decision - As with the draft permit, the EPA
and State final permits will be issued simultaneously (except
where the State draft permit was issued prior to April 8, 1985,
and the final permit was issued before the end of fiscal year
1985). The format of the final permit will be the same as the
draft permit. (See discussion on pages 7-8.)
2 PIG 84-1, from Lee M. Thomas, May 21, 1984.
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7. Appeals - The States will handle appeals relating
to State provisions and EPA will handle appeals o£ the
Federal provisions. Each party should notify the other when
any appeal action is initiated.
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l"""ED sf' . iS ENVIRONMENTAL PROTEC ,ON AC.1 CY
9541.1986(04
MAR - 3 '—
Felix A. Dunaway
C-E Power Systems
Combustion Engineering, Inc.
4224 Shackleford Road
Norcross, Georgia 30093
Dear Mr. Dunawayt
As the result of our office's investigation into the current
regulatory status of the spent pickle liquor sludge generated at
your Norcross facility, we have found that the State of Georgia
issued a final exclusion for this waste on May 11, 1984. As a
result. Combustion Engineering, Inc. may no longer want to pursue
a final exclusion for this waste from EPA. We would liKe to make
you aware, however, of the limited jurisdiction of the State decision,
as described below. The Georgia delisting designates your process
waste as a non-hazardous waste within the State of Georgia under
the authority granted to Georgia for interim authorization by EPA on
February 3, 1981.
If the waste continues to be handled entirely within the borders
of Georgia, and does not enter interstate commerce, the waste may
be disposed as non-hazardous. In the event, however, that this
waste enters interstate commerce, e.g., transported by an interstate
carrier, even within Georgia, it must be treated as hazardous.
Our office will encourage the Georgia Department of Natural Resources
to consider additional factors if they reconsider this delisting,
but Georgia is not required to readdress this delisting.
If Combustion Engineering, Inc. wishes to pursue a final
deli sting from EPA, then the previously requested information
should be forwarded, immediately. If Combustion Engineering, Inc.
does not wish to pursue an EPA delisting, then the petition on
file with the Agency should be withdrawn. A letter indicating your
intent (i.e., whether to proceed with the delisting or withdraw the
petition), should be sent to our office within two weeks of the date
of receipt of today's correspondence.
HB5-447-IJ1
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If you have any further questions, please contact eithpr Mr.
Wendel Miser, of ray staff, at (202) 382-7817, or Mr. Steven Hirsch
of the Office of General Counsel at (202) 382-7703.
Sincerely,
Eileen Claussen
Director
Characterization and
Assessment Division (WH-562B)
cc: Georgia Department of Natural Resources
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J541.1986(05)
31 OCT 86
MEMORANDUM
oUBJLCT: RCRA Section 3001(f)(2)(b) and States' exclusion
oc Wastes from Regulation as Hazardous
. - i/
FROMt Marcia £. Williams, Director ^"* ,"'c ',. »-
Ottice of Solid Waste MaTCta t-
TOi Hazardous waste Division Directors
Regions I-X
Since November 8, 1984, EPA has administered all RCRA delisti
programs and will continue to do so until States become authorized
for delisting under the new provisions of the Hazardous and Solid
Waste Amendments of 19*4 (HSWA). A State is not roqulred to have
a delisting mechanism, and may be authorized under HSWA without
one. To receive authorization, a State must conform its delisting
program, if any, to the Federal program and apply to the Agency
tor authorization.
Effective November 8, 1986, temporary exclusions automatically
expire. Any temporary exclusion granted by a State before
November 8, 1984, should be re-evaluated either by EPA or a State
that has been authorized to conduct delisting pursuant to HSWA.
If a final decision to grant or deny a petition has not been made
by November 8, i986, the temporary exclusion will cease to be in
effect for purposes of RCRA Section 3001(C)(2)(B).
Temporary Exclusions
Temporary exclusions are delisting decisions which exclude
a waste crom regulation as hazardous, but are not the tlnal
deliating action under the regulations of the issuing authority.
for example, BfA issued a number of temporary exclusions pursuant
to 40 CF1 2<0.22(m). That provision explicitly stated that theao
decisions are made 'becor* mailing a final decision*. Similarly*
several States have mechanisms for removing a waste from regulation
twtore promulgating a final decision, such as delistings patterned
on the Federal temporary exclusion.
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- 2 -
These temporary exclusion* should be distinguished rrom
grants of enforcement discretion, where a State did not remove a
wastR from regulation, but stated only that it would not initiate
an enforcement action aoainst a person treating this waste as non-
hazardous, r.ntorcement discretion, sonet i»o§ called informal
exclusions, ar« not temporary exclusions (nor are they final
exclusions).
Final Exclusions
A final exclusion is an agency determination don* in accordance
with tne issuing authority's regulations, e.g., with notice and
comawnt after which no further review of the petition is* conto«plat*d,
£PA issues final exclusions pursuant to 40 CPR 260.20 and 260.22,
which requires publication of a tentative decision in the Federal
Register, receipt and evaluation of public cosnwnt*, and publication
of a final decision in the Federal Register. States issue Einal
exclusions in accordance with their State legal authorities.
Any final exclusions that were granted by authorised States
betore November 6, 1994, are not affected by HSNA (i.e., no
additional action is required by the* State or by EPA). EPA
encourages the States to r«-*v*lu*te those decision* if all
factor* (including additional constituents) which could cause
th* wast* to b* hazardous w*r* not considered by th* State.
Actions R*qutr*d
On November 8, 1964, all t**jporary exclusion* will cease to
be in effect for purpo*** of KOLA if a final exclusion has not
been granted. State* and Region* should plan to verify that th*
handler* of the*e previously excluded w**t** ar* coax?lying with
applicable requirement* after November 8, 1986. To thi* end, th*
Regions and Stat** should begin to evaluate all Stat* delistlngs
tot
(1) determine th* typo of Stat* exclusion (temporary or final)
that we* graat*d b*for* November 8, 1914)
(2) deteraiM wh*th*r a final *xclu»ion ha* b**n granted or
denied fry EPAj and
(3) tax* appropriat* action to ensure full coxtplianc* with
MCXA (e.g., prior to 11/8/ft, you should send handler*
written notification of their regulatory responsibilities.
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- 3 -
Proa a practical standpoint, the «»piration of a temporary
exclusion will have greatest imamdlate impact on those who
manage their waste in land disposal units. These units nay
oe immediately subject to ground-water monitoring requirements
and, on November *, 1987, may be subject to the "loas ot interim
status" requirements of Section 3005 (e)(3), depending on whether
otnur hazarooua waste manaaement activity is occurring at the
facility.
Currently* there aro no States authorized for the HSWA
•Jeliating authority, tven if a Stat** were to receive the
required authorisation before November 8, 1986, it is highly
unlikely that adequate tine exists to collect and evaluate the
additional information from petitioners so as to avoid termination
of the tafflporary exclusion.
A 'Reference Guide to Delistinq Petitions" is compiled at
£PA Headquarters and distributed weekly to the Regional deiiating
contacts. In turn, the Guide is distributed to the States. This
reference can be used to determine if EPA is reviewing a particular
petition and the status of EPA's review.
Please feel free to contact the delisting staff of the Waste
Identification Branch or the Regional Liaisons of the State
Programs Branch here in the Office of Solid Haste if you have
any questions regarding State dellstlnqa.
cci Matt Straus, ObW
Truett DeGeare, OSW
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9541.1986(10
MAY 1, 1986
Neanonse to Kaoion III Inrlementation and
Oversiqht Issues
".arcia ?. Williams, Director
Office of Solid Waste (Wl-563) •"
Gene Lucero, Director
Office of Kaste Programs Enforcement (WH-527)
TO: f-tenhen R. waaaersuq, Director
Hazardoua Waate Management Division (3HWOO)
Thank you for your memorandum of March 5, 1986, in which
you asked for clarification on several issues relating to
implementation and oversight of the RCRA haiardous waste program
in Pennsylvania. This memo addresses your concerns in the sa^e
order in which you stated then in your memorandum.
1. Is there still a need to maintain a major handlers list?
Although the najor handlers list played a role in the past
to establish insoection frequencies and targets and oerwit over-
siqht priorities, it does not translate to the existing needs of
the Agency. You should amend your States' MOAs to use desiqna-
tions which comtunicate the priorities set in each year's RIP.
For example, facilities presentino immediate threats, government
facilities, and land disposal facilities, would be appropriate
designations for inspections and oversight in FT 86 t PY 97.
Because of the recent policy/guidance set forth in the PIP (e.q.,
insoectiwi targets In PY 86 RIP), PIGs 83-1 and 82-2 have been
superaedsjd and are presently inoperative with regard to inspections
*nd oversight* As you point cue, a major facility designation
does need" to be maintained to quid* the permitting actions of
5*124.7 and 124.8.
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- 2 -
~-j, wiat happen* to EPA's oversight responsibility (especially
direct enforcement autnority) when SPA makes regulatory changes
which narrow the "scope" of the original program?
The example you related with this question refers to EPA
removing a waste trora the lists in Part 261, where an authorized
State program continues to include the waste* In this situation,
the State requirement would increase the size of the regulated
community and would bt» an aspect of the State progran which noes
beyond the scop* of the Federal prograa. Thereiore, LPA would
no longer enforce the haaardous waste activity associated with
the Federally deregulated waste. This aspect of tf\« State program
would not Da subject to EPA oversight*
However/ tPA's oversight and enforcement responsibilities
are different where EPA reduces the stringency of a requirement
(tor example, requiring a biennial report instead of an annual
report). In that caa«j, the State requirement (i.a., annual report)
becomes more stringent than the corresponding Federal requirement.
EPA would enforce and otherwise oversee the more stringent State
provision, since more stringent provisions are still considered
part of th« State's authorised program.
3. You asked Headquarters to make a specific determination
regarding the "«or« strlng«nt" or "broader in scope" nature of
State standards cor managing a material which SPA has determined
to not o« a haaardous waste.
In the situation you described, the lack of the waste
exemption/exclusion in the State's program increases the siae of
the regulated community beyond that of the Federal program. As
you indicated, this part of the Pennsylvania program could be
viewed as "broader in scope", W» agree with this assessment.
Therefore, EPA do«s not hav« an oversight responsibility and
would not enforce th« State's provision.
I hope that th« abova discussion anawars your questions and
concerna regarding major facilities and oversight of approved
State progri
cc: SUMS) SchsMdas, OGC
Virginia Steiner, OWPf
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UNIT o STATES ENVIRONMENTAL PROTECTION AGENCY
9541 . 1986( 13
T' 2 A '295
Kic:iard C. Fortuna
Hazardous waste Treat.-aant Council
1^1^ Pennsylvania Avenue , N.d.
Suite JOU
iiasnington, D.C. 2J006
Jear Mr. Portunai
Tnank you for your letter of May 21, 1986, expressing your
concerns over the uniform apolication and enforcement of land
disposal restriction regulations. I will answer your specific
questions in the order in which they were presented.
• Regard inq uniform application of the Federal require-
ments in States which have established or are estab-
lishing their own pre-treatraent levels t
AS you Know, Congress intended that the KCRA program be ultimately
implemented at the State level, rte have established a very detailed
and comprehensive process for delegation of our Federal authority
to qualified states. Through that process, States are required to
prove tneir eligibility to receive delegation. Part of that proof
involves a showinq by the State that its enabling legislation, the
rules which are promulgated undor that authority, and the orocjrams
wnich are established to implement and enforce those rules are all
equivalent to the Federal program. Only after our determination
of overall program equivalency will we award the State the authority
to operate ita program in lieu of the CPA program. State programs
:nay differ froa the Federal program in only two respects. They
may contain element* which are more rigorous or limiting than the
Federal analog (more stringent programs), or they may contain
elements of control and regulation which have no Federal counterpart
prograra* As you know, we will be promulgating the land disposal
restriction regulations under the authority of the Hazardous and
Solid Waste Aaendnents of 1984 (HSWA). One unique aspect of that
statute is that the agency will be responsible for implementing
and enforcing its rules on their effective dates in all States,
unless and until authority for implementation has been delegated
to the States. Once a State program is authorized, EPA will
guarantee continued consistent application of Federal requirements
through annually negotiated program grants and memoranda of under-
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standing -with authorized States and also through oversight activities
and ov*rfiling wnen necessary. For your review, I have attached a
copy of our Draft State Consolidated RCKA Authorization Manual which
discusses the State authorization process in greater detail. Finally,
tne agency plans to develop guidance manuals for permit writers in
the EPA negional offices and the States and will also be offering
training opportunities to those individuals to guarantee universal
understanding and consistent interpretation of Federal regulations.
' Regarding a State's ability to establish treatment
levels separate and apart from the land disposal
restrictions:
Nothing in the Federal program or the delegation process
descrioed above prevents a State from establishing its own standards.
Indeed, State rulemaking is governed and directed by authorities
bestowed on each state agency by its legislature. However, for the
State to become federally authorized, those standards must be _a_t
least as restrictive as their Federal analogs. Where they are not,
authorization will not be granted and, as noted above, the Federal
standards wi.il take effect immediately in the State, regardless of
any less stringent or absent State requirements and will be imple-
mented by iifA (see 50FR 26129, July 15* 1985).
* *
* Regarding specific steps to be taken to guarantee
that Kansas maintains adequate control over
hazardous wastesi
Neither E*»A Headquarters nor Region VII was aware of Mr*
Murpny's letter prior to its being sent. Since then, our Regional
Ofrice has had conversations with Kansas officials regardinn the
letter, and we will have more in-depth discussions in the near
future. Me will continue to support the State of Kansas in the
implementation of their hazardous waste program since no Federal
requirements have as yet been promulgated. However, when Federal
regulations are effective, either those rules or equivalent rulete
promulgated by the State will govern hazardous waste activities
in Kansas.
• Regarding the criteria which will guide the
process of evaluating the volume of waste
generated by a small generators
First* let ae not* that determinations of what is to be
considered to be the volume (or weight) of hazardous waste are
the same for any generator and small quantity generator requirements
are considered only after the waste cieneration rate is established.
Secondly, let me point out that the final determination of what
exactly constitutes the waste is made by that agency operating the
federal program, either the appropriate EPA Regional office or the
authorized iitate wherein the generator is located. Regarding
the specific question of cartridge weights, EPA has consistently
specified that tne weight of the cartridge as well as the weight
of the filter be included in the weight of the waste.
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n the affect of Federal land disposal
restrictions -.n generators in States with more
stringent or Broader in scope progra-nsi
In those instances where a more restrictive or broader in scone
state program has received Federal authorization those State require-
ments will prevail. (Please note that in those situations where EPA
finds it necessary to take enforcenent actions against generators
located in these States, EPA will enforce the more restrictive State
requirement.) Where State programs have not been authorized, EPA
is required oy HSWA to implement and enforce the Federal standards.
However, in these instances, nothing precludes the State from imposing
its more restrictive requirements as well. Generators should consult
tneir state officials directly to determine if such State standards
are additionally in effect. Finally, in those instances where State
and r'eaeral requirements are in conflict or mutually exclusive,
dicattjs tnat the federal requirements will prevail.
• Kegarding the applicability of the federal land disposal
restrictions to residues from Totally Enclosed Treatment
Facilities (TETFa)i
four interpretation is correct. There is no relationship
between the source of a waste and that waste's acceptaoility for
land disposal. Acceptable disposition of such residues is
determined solely on the basis of that waste's characteristics
and chemical composition. Finally, regarding applications for
Ti:iY determinations which the agency may have received, I am
sorry but we at EPA Headquarters cannot satisfy your request.
Such applications are submitted to the appropriate EPA Regional
Office or authorized State. I reconmend you contact the RCRA
branch Chiefs in our Regional Offices to secure that information
For your convenience, I have included the names, addresses, and
telephone nuinoers of those individuals.
I trust tnis adequately addresses your concerns. Peel
free to contact «r. druce Ueddle, Director, Permits and State
Programs Division at (202)3*2-4746 if you have additional
questions on the State authorization nrocesa or the procedures
in place wnicn guarantee consistent application of the Federal
program.
Sincerely,
Marcla C. Williams
Director
Office of Solid Waste
Enclosures
cc: iiruce weddle
ilicnael Sanderson
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9541.1986(14)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C 20460
July 3, 1986
Ms. Carol C. Amick
Senate Chairman
Special Legislative Commission on
Low-Level Radioactive Waste
The Commonwealth of Massachusetts
Boston, Massachusetts 02133
Dear Ms. Amick:
This is in response to your June 3, 1986, letter requesting
the Environmental Protection Agency's (EPA's) position on the
management of "mixed wastes", i.e., wastes that contain hazardous
as well as source, special nuclear or byproduct material as
those terms are used in the Atomic Energy Act (AEA). In your
letter, you raise concerns about the jurisdictional issues of
mixed waste management.
I first want to note how pleased I am that your Special
Commission is proceeding with identifying the particular low-level
mixed waste streams in Massachusetts. This will, of course,
facilitate resolution of any technical issues that might arise
in the future.
In particular, you asked my views on three areas of concern
to the Special Commission: (1) State jurisdiction over mixed
wastes; (2) regulation of incineration of mixed waste; and (3)
the effect on State compacts if EPA receives sole (federal)
jurisdiction over mixed wastes.
EPA considers the hazardous waste component of all mixed
waste streams to be subject to the Resource Conservation and
Recovery Act (RCRA). However, no States have yet been authorized
under RCRA for these mixed wastes. A notice is to be published
shortly in the Federal Register advising States, such as Massachu-
setts, with RCRA final authorization that they have one year
from the date of the notice (or two years if a statutory amendment
is required) to demonstrate authority to regulate the hazardous
components of mixed wastes. In the interim, States which already
have existing laws which regulate mixed wastes may enforce those
laws under their own authorities.
Incineration of mixed waste must meet applicable requirements
under RCRA for the hazardous constituents as well as applicable
requirements under the Clean Air Act and the AEA for the radioac-
tive constituents. Current requirements under the AEA consist
primarily of NRC licensing requirements? however, EPA's forthcoming
low-level waste regulations will likely address incineration as
a method of handling wastes containing AEA-regulated radionuclides.
-------
In response to your last question, EPA does not foresee
receiving, sole jurisdiction over mixed wastes. RCRA facilities
are not designed to address radioactive hazards. Thus, any
potential for a prohibition on disposal of mixed wastes at NRC
facilities or a lack of sufficient disposal capacity at NRC
facilities (because of closing of existing sites and failure to
identify new sites under State compacts) could affect the safe
disposal of mixed wastes.
It is, therefore, EPA's position that it will authorize
States pursuant to RCRA to regulate the hazardous components of
the mixed waste, while NRC will continue to regulate the low-
level radioactive components. In that case, there should be no
effect on the already existing State compacts' language.
With regard to the AEA's 1993 deadline requiring States to
develop commercial low-level radioactive waste sites, EPA will
provide guidance to clarify hydrogeologic characteristics for
locating sites. To assist the States in site selection, EPA's
location guidance will be available this summer, and final
regulations on location standards will be promulgated in 1988.
In summary, EPA is proceeding to authorize States under RCRA
to regulate the hazardous components of mixed wastes. If we find
the application of the RCRA regulations would increase radiation
hazards or otherwise would be inconsistent with AEA requirements,
we will modify or waive the RCRA requirements under Section 1006
of RCRA.
If you have further questions, please contact Bruce Weddle,
Director, Permits and State Program Division, at (202) 382-4746.
Sincerely,
Lee M. Thomas
cc: Honorable Edward Markey
Michael Deland, EPA, Region 1
Commissioner Silva, Mass. DEQE
Commissioner Walker, Mass. DPH
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9541.1986(19)
October 14, 1986
Mr. C. Alan Boright
Legislative Counsel
Vermont Legislative Council
State House
Montpelier, Vermont 05602
Dear Mr. Boright:
Thank you for your letter of September 17, 1986 in which you
requested advice on the impact and meaning of certain provisions
of the "Low-Level Radioactive Waste Policy Amendments Act of
1985" (LLRWPAA). As you know from earlier discussions with my
staff, the final version of the LLRWPAA did not address
regulation of components of radioactive mixed waste which would
be classified as hazardous under the Resource Conservation and
Recovery Act (RCRA), as amended.
On July 3, 1986, however, EPA published a notice in the
Federal Register (51 FR 24504) (copy enclosed) which stated that
in order for States to obtain and maintain authorization to
administer and enforce the hazardous waste program pursuant to
Subtitle C of RCRA, States must have authority to regulate the
hazardous components of radioactive mixed wastes. As defined by
that notice, radioactive mixed wastes are wastes containing
hazardous waste subject to RCRA and radioactive wastes subject to
the Atomic Energy Act (AEA).
The July 3 notice was prepared with input from both the U.S.
Department of Energy (DOE) and the U.S. Nuclear Regulatory
Commission (NRC). This cooperative effort is continuing as we
move forward in developing guidance for managing radioactive
mixed waste. Joint efforts between EPA, DOE and NRC have been
extremely productive, and it does not appear that additional
legislative intervention will be necessary to effect dual
regulation and management of the hazardous components of low-
level radioactive mixed wastes.
In regard to your concern about disposal of mixed wastes
with differing characteristics, RCRA does not preclude disposal
of mixed wastes at facilities that handle other radioactive
wastes. At the present time, there are three operating low-level
radioactive waste land disposal facilities in the United States.
Discussions with States that have low-level waste disposal
facilities and States with plans to develop such sites have
indicated to us that they do not foresee any problems in meeting
This has been retyped from the original document.
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-2-
both EPA and NRC regulations in managing radioactive mixed
wastes.
Additionally, under the LLRWPAA States may form "compacts",
that is, enter into a cooperative agreement with one or more
States to provide for the disposal of low-level radioactive waste
generated within the State. Compacts and the rules and
regulations governing them are under NRC jurisdiction.
Therefore, questions regarding compacts as well as questions on
liability and/or ownership under the LLRWPAA should be addressed
to Mr. Robert Browning, Director, Division of Waste Management,
NRC on (301) 427-4069.
Questions regarding State authorization for the hazardous
components of radioactive mixed wastes may be addressed to
Betty Shackleford of my staff at (202) 475-9656 while questions
on health and environmental standards for radioactive materials
should be addressed to Mr. Floyd Galpin, Acting Director,
Criteria and Standards Division, Office of Radiation Program,
U.S. EPA.
Sincerely,
Marcia Williams
Director
Office of Solid Waste (WH 582)
Enclosures
cc: Mr. Robert Browning, NRC
Mr. Floyd Galpin, EPA
Ms. Susan Sawtello, EPA
This has been retyped from the original document.
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9541.1936CQ
OCT 20
SULJECTi State Authorization to Regulate Hazardous
Coir.pon*ptt:ft%7Kadioactive Mixed waste*
a '"i •-s-
Aj
T A
FROMi j. Winston Porter
Assistant Administrator
TOi Waste Management Division Directors
Regions I-X
On July 3, 1986, EPA published a notice in the Federal
Register (51 FR 24504 copy attached) announcing that in order to
obtain and maintain authorization, to administer and enforce a RCKA
Subtitle C hazardous waste program, States nust apply for authori-
zation to regular* the hasardous components of radioactive mixed
wastes, i.e., wastes that contain both RCRA waste and radioactive
waate subject to the Atonic Energy Act (AEA). You will aoon
receive a State Programs Advisory (SPA) with more information on
format and procedures for State applications. However, in the
meantime I urge you to encourage your States to apply for final
authorization for radioactive mixed wastes as soon as possible.
This is especially important for States with major Department of
Energy facilities or major Kuclear Regulatory Commission licensees
that manage radioactive mixed wastes.
States which received final authorization prior to the
publication date of the notice must revise their programs by
July 1,.1908 (or July 1, 1969 if a State statutory amendment
is required) to demonstrate authority to regulate the hazardous
components of radioactive mixed wastes (see the "Cluster Rule",
51 FR 33712. September 22, 1986). States initially applying
for final authorization after July 3, 1987, must incorporate
this provision in their application for final authorization.
In addition* States applying for BSWA corrective action must
concurrently seek authority for radioactive mixed wastes.
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- 2 -
Until a State with final authorization is authorized
for radioactive mixed wastes, handlers of such wastes are not
subject to KCKA regulation. However radioactive mixed wastes
are considered "solid waste* for purposes of HSWA corrective
action at solid waste management units. Under f3004(u), EPA
can jointly issue a permit with the State and impose corrective
action requirements on hazardous waste management units and
solid waste management units at facilities that contain units
subject to RCRA.
Attachment
cc: Marcia Williams
Bruce Weddle
State Programs Branch
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9541.1986(24)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
OCTOBER 86
2. Delisting by States
A facility generates a waste that is not hazardous by Federal EPA
standards but is listed as a hazardous waste by the state. The state in
which the generator is located is authorized to implement the RCRA program,
excluding delisting provisions and the Hazardous and Solid Waste Amendments
of 1984. According to 40 CFR 271.9(b) (See the September 22, 1986 Federal
Register, 51 FR 33721), authorized states are not required to have a delisting
mechanism. If the generator wishes to have his state-listed hazardous waste
delisted, does he submit the delisting petition to EPA headquarters if the
state has no delisting program?
Although EPA has the authority to grant delistings, its authority does
not extend to wastes that are listed as hazardous by the state, but not
by Federal EPA. According to 40 CFR 271.1(i)(2) and 271.12K D(2), any
state requirement that is greater in scope than the Federal RCRA require-
ments is not part of the Federally approved program. Program Implementa-
tion Guidance (PIG) 84-1 explains further that EPA may not enforce state
provisions that are broader in scops than the Federal program. State
.listing of a waste that is not Federally listed is an example of a
provision that is broader in scope because it increases the size of the
regulated community. Therefore, EPA would have no authority to grant an
exclusion for a wast* that is listed only by the state. The state would
be responsible for granting any exclusions for a waste not regulated
Federally.
Source: Matxy Madison (202) 382-2229
Research: Jennifer Brock
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. KKOT6CTION AGENCY
9541.1987(01
JAN U 1987
/iLI'.CEAl.'DUM
SUbJECT: The Role of Authorised States in Dispute Resolution
FROM: Bruce R. Weddle, Director
Permits and State Program Division
TO: Marcia E. Williams, Director
Office of Solid Waste
You asked about the role of authorised States in the dispute
resolution procedures described in the attached DOJ ••no. The
DOJ nemo suggests procedures for resolving RCRA disputes between
EPA and Federal agencies. EPA's procedures for Federal facility
dispute resolution and the role of an authorized State in dispute
resolution are explained in th« RCRA Enforcement Response Policy
URF) and in EPA's Federal Facility Coup 1 lance strategy. The draft
DOJ procedures do not appear to affect the role of authorized States
in dispute resolution since they are not bound by EPA's dispute
resolution procedures.
* •
Under either EPA's current dispute resoluton procedures or
DOJ's draft procedures, EPA would encourage the State (whether
authorized or not) to participate in the dispute resolution pro-
cess. It is EPA's policy that an authorized State take the
enforcement lead for violations of RCRA. This policy applies to
violations at private facilities as well as Federal facilities.
Where the State fails to take timely and appropriate action, or
where the State requests EPA to take the lead* EPA will pursue
an enforcement action in an State. Where EPA takes the lead and
pursues a negotiated settlement* it is our policy to encourage
the States to participate in the negotiations and sign the con-
pi iance agreement. Signing the agreement, however, does not
prevent a Stats fro« pursuing an independent enforceaent action
against the Federal facility. Furthermore, the State usually
reserves the) right to take an enforcement action if the Federal
facility doee not comply with the agreement. For example, in
the Rocky Flats agreement and in the Wright-Patterson AFB agree-
ment, the States reserved the right to take an enforcement action
against the Federal facilitiee. The State's role in dispute
resolution is the same under either the draft procedures written
by DOJ or under EPA'e dispute resolution procedures.
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- 2 -
Where EPA takes the enforceaent lead, States are often
hesitant to join EPA'i dispute resolution negotiations because
the States would prefer to pursue an enforceable order in court.
Under the draft DOJ procedures the States say be even more hesitant
to join EPA's dispute resolution negotiations because the draft
procedures do not include tiaefraaes for issuing ZJOV's or for
referring disputes to Headquarters as do EPA's current procedures.
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
3541.1987
JUN 291967
Mr. Steven A. Black
Radiological Services Department
Teledyne Isotopes
SO Van Buren Avenue •
Westwood, New Jersey 07675
Dear Mr. Black:
Thank you for your letter of Hay 29 in which you raised a
number of issues regarding the applicability of Resource Conser-
vation and Recovery Act (RCRA) regulations to your radioactive
mixed waste brokerage in New Jersey.
Let me begin by providing an overview of how the Federal
hazardous waste program would be applicable to your waste manage-
ment operations. RCRA provides that States may obtain authorization
to administer and enforce • hazardous waste program in li«u of
EPA. New Jersey and New York have obtained such authorization.
However, due to earlier uncertainty about the status of radioactive
mixed waste, most States* including New York and New Jersey, have
not yet obtained authorisation to regulate radioactive mixed waste
as part of the authorised State program. This means that radioactive
mixed waste is not a 'hazardous waste" within the meaning of N«w
Jersey or New York's RCRA authorised State program. However, this
does not preclude New Jersey and New York from regulating radioactive
mixed waste as a matter of State law, provided that such regulation
is not inconsistent with the- Federal program.
One of your questions concerned the availability of interim
status for "handlers" of radioactive mixed waste. Since neither
New York nor New Jersey's RCRA authorised program includes radio-
active mixed waste, there is no need yet to obtain interim status
with respect to such wastes in those States. However, once State*
become authorised, facilities handling mixed wastes will need to
obtain permits or interim status. The Agency is currently reviewing
options for providing interim status to owner/operators of mixed
waste treatment* storage and disposal facilities. Once the options
have been considered, the Agency's decision will be announced.
-------
Your second question relates to New York's authority to
regulate radioactive mixed waste under State law. AS I indicated
previously, New York can regulate radioactive mixed waste under
applicable State law although the State cannot administer the
Federal program until it has been authorized to do so by EPA.
Determining which State requirements apply to your radioactive
mixed waste handling operation is a matter of State law. Questions
regarding those requirements should be addressed to appropriate
State authorities. For further information contact:
Paul Counterman
Bureau of Hazardous Waste Technology,
New York State Department of Environmental
Conservation (OEC)
SO Wolf Road
ALbany, New York 12233
Third, we *re not aware of any inconsistencies between the
Nuclear Regulatory Commission (NRC) and EPA storage requirements.
EPA regulations do not prohibit storage beyond 90 days. However,
EPA does require that a permit be obtained for generators that
store hazardous wastes more than 90 days. Of course, a State may
require permits even for a lesser holding period.
Lastly, you asked if EPA could issue regulations exempting
certain segments of the radioactive mixed waste management operations
from RCRA regulations. Any such action on the part of EPA would
be inconsistent with the "cradle to grave* management mandate of
the hazardous waste program. Consequently, it is unlikely that
the Agency will exempt segments of the radioactive mixed waste
operations from RCRA unless the subject requirement is inconsistent
with the Atomic Energy Act as specified in section 1006(a) of
RCRA.
In conclusion, radioactive mixed waste is not yet subject
to Federal hazardous waste requirements in New Jersey or New York.
Questions about compliance with State requirements should be
addressed to those States; questions about the Federal RCRA
program may be addressed to Betty Shackleford, Nixed Waste Project
Manager at (202) 475-9656.
Sincerely yours,
cc: Marcia Williams, OSW
Bruce weddle, OSW
. Barry Tornick, Region XI
Andy Bellina, Region II
Lisa K. Friedman, OGC
J. Winston Porter
Assistant Administrator
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9541.1987(10)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 87
Land Disposal Restrictions
In a particular state authorized to implement pre-HSivA
regulations, the F005 hazardous waste listing also
includes spent solvent ruxtv--?s and blends containing
less than 10^ solvent befo: ; use. Due to the state's
hazardous waste listing, does this mean the waste
(which is not listed under the Federal hazardous waste
regulations) is now restricted from land disposal?
No, authorized state regulations which list
hazardous waste (not within the Federal haz.irdwus
waste universe) are broader in scope than the
Federal regulations. According to the May 21,
1984 Program Implementation Guidance Menorandun
from Lee Thomas entitled, "Determining whether
State Hazardous Waste Management Requirements are
Broader in Scope or More Stringent than the
Federal RCRA Program" (PIG-84-1), EPA cannot
enforce state regulations which are broader in
scope. Therefore, a waste designated by the state
as F005 (which does not meet the Federal criteria
for listing) would not be subject to Federal land
disposal restrictions. However, states are free
to impose their own disposal pror.oitions if such
actions are more stringent or broader in scope
than Federal programs (RCRA $3009 and 40 CFR
5271.KD).
Source: Mitch Kidwell (202) 382-4805
Research: Joe Nixon
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RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
9541.1988(01)
JANUARY 88
4. Federal Authority Over Authorized States
Does the Regional Administrator always retain oversight
authority for State permit issuance or may a State become
completely autonomous if it has final approval for all
phases of its RCRA program?
Section 3006(c)(4) of HSWA provides that in the case of
an authorized State program, until such program is
amended to reflect the amendments made by the Hazardous
and Solid Waste Amendments of 1984 and such program
amendments receive interim or final authorization, the
Administrator shall have the authority in such States
to issue or deny permits or those portions of permits
affected by the requirements and prohibitions
established by the Hazardous and Solid Waste Amendments
of 1984. The Administrator shall coordinate with
States the procedures for issuing such permits.
Even if a State has final authorization of all phases
for its RCRA program, however, the Administrator always
retains a statutory oversight authority for such
programs. Section 3006(e) of RCRA authorizes the
Administrator to withdraw approval of any State program
where, after public hearing, it in determined that the
State is not administering and enforcing its program in
accordance with the requirement* of Section 3006.
After notifying the State, the Administrator may
withdraw authorization for the State program if
corrective action measures are not taken within a
reasonable time, not to exceed 90 days. Further, 40
CFR Section 271.8(a) provides that any State seeking to
administer a program shall submit a Memorandum of
Agreement (MOA) executed by the State Director and the
Regional Administrator. Such Memorandum of Agreement
shall not contain provisions which restrict EPA's
statutory oversight responsibility. The Administrator
may also comment on permits and draft permits pursuant
to 40 CFR Section 271.19 and Section 271.8 and Section
3008(a)(3) permits the Administrator to revoke permits.
Finally, Section 7003 permits the Administrator to take
action in cases of imminent and substantial
endangerment notwithstanding other provisions of the
Act, including State authorization.
Source: Marty Madison (202) 382-2229
Research: Bob Adamson
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9541.1991(01)
MEMORANDUM
SUBJECT: Pilot Delegation of RCRA Subtitle C State Program
Revision Authorizations to the Regions
FROM: Don R. Clay
Assistant Administrator
E. Donald Elliott
General Counsel
TO: Regional Administrators, Regions I-X
In response to a request made by the Regional Waste
Management Division Directors as veil as the recommendation of
the RCRA Implementation Study, we are fully delegating the
responsibility for RCRA Subtitle C State program revision
application review and authorization decisions to the Regions on
a two year pilot basis. We look upon this delegation as an
opportunity to make EPA more responsive in authorizing RCRA State
programs while, at the same time, developing an expanded
cooperative role between the Regions and Headquarters. This
pilot delegation will allow the Regions to review and make
decisions on program revision applications without HQ
consultation or concurrence. However, Headquarters review and
concurrence will still be required for those few States, and in
-the future, Indian Tribes, applying for base RCRA program
authorization. This delegation is effective March 1, 1991.
In setting up the Subtitle C program, Congress envisioned
the Agency would expeditiously authorize qualified States. A
quality authorization program requires a significant commitment
to enhance State capability and actively delegate programs to the
States. In order to support this commitment, we are asking that
each Region submit an annual "State Enhancement and Authorization
Plan" outlining what the Region is doing to build State
capability and encourage authorization. Guidance for developing
this plan will be in the FY 92 RCRA Implementation Plan to be
issued by April 1, 1991, and will indicate when these plans will
be due.
-------
Each Region will be fully responsible for maintaining the
integrity of the authorization decision process, including
explaining those decisions to the public and Agency oversight
bodies such as Congress. In addition, delegation of this
authorization responsibility to the Regions is contingent on
Regional commitment to raise issues of national significance to
Headquarters on a timely basis and to adhere to basic guidance
and policy as well as to the underlying statutory and regulatory
requirements for authorization. To that end, each Regional Waste
Management Division Director must certify prior to the Regional
Administrator approving an application that national issues have
been brought to Headquarters' attention.
As it is critical that the Office of the Regional Counsel be
fully involved, the Regional Counsel must also provide assurances
that all legal issues have been reviewed and satisfactorily
addressed. The Offices of Regional Counsel and the Office of the
General Counsel will share responsibility for any defensive
litigation arising from delegated approvals. The Offices of
Regional Counsel must notify OGC promptly when litigation is
filed. OGC will determine whether the case raises any issues of
national significance and retain responsibility for litigating
such issues. The Offices of Regional Counsel will be responsible
for all other issues.
Headquarters will issue broad national guidance outlining
potential issues of national significance. However, since many
of the issues that arise in a revision application are of first
impression, increased Regional alertness to potential national
issues is critical and Regions should err on the side of prudence
in raising issues to Headquarters.
At the end of the two year delegation pilot, we will decide,
based on our review of each Region's authorization performance,
whether to continue the delegation. In the near future,
Headquarters will establish oversight criteria by which we will
measure Regional success in achieving the national authorization
goals of enhancing State capability and delegating programs to
the States is attached. There will be regular evaluation of
Regional performance, possibly through annual audits and
Headquarters attendance at end-of-year and mid-year State
evaluations. Regions will also be expected to maintain accurate
and timely authorization data.
Each Region undertaking this delegated review and
authorization role must fully recognize the significantly
increased responsibility of Regional authorization program staff
and the need for active ORC involvement. In addition, each
Region is responsible for providing adequate staffing and
training for authorization. Headquarters will provide two
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authorization training workshops beginning in the Spring of 1991
and be available for technical (policy and legal) assistance to
the Regions upon request.
The success of this delegation is dependent upon all of us
taking our responsibilities seriously, in full-realization of the
critical implications of authorization decisions. We know we can
count on you and your staff to give RCRA authorization careful
attention so that we can all be proud of our accomplishments and
maintain a track record that withstands careful public and
Congressional scrutiny.
cc: Hazardous Waste Management Division Directors, Region I-X
Regional Counsels, Regions I-X
Sylvia Lowrance, OSW
Bruce Diamond, OWPE
Lisa Friedman, OGC
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9542 - INTERIM
AUTHORIZATION
Part 271 Subpart B
ATKl/l 104/63 kp
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
9542.1980(01
OC'
PIG-80-3
MEMORANDUM
SUBJECT i
FROM:
TOt
Rsquirsmsnt That Stats-Psrmittsd Hazardous
Wast* Facilities Havs "intarim status*
Stsffsn W. plshn
Dsputy Assistant Aamifclstrator
for Solid wasts (welt 62)
R. Sarah Compten
Daputy Assistant Xdainistrato
for Watsr Cnfore«m«nt (EN-335)
PIGS Addr«ss««s
ISSUE
If a Stats agtncy ia a Stats with Phass I authorization
issuss a facility psrmit aftsr Nov«mb«r 19, 1980 but ths
Stats prograa hits not b««n authorizsd for Phass II
intsria authorizations •
a) Doss ths*facility havs intsria status?
%
• b) If ths facility doss not havs intsrim status,
can it bsgin opsration?
DISCU3SION/DECI3IOH
a) for a f ability to obtain intsrim status it must
fflsst thrss rsqairssisjitj a*^^»|:»d,^^«c^.oa ^OOJWs) of
RCRA. Thss« arsi
• Ths facility must
ths dats of-.-s
or oa ths da-ts
passsd by
• Ths f acility _
tion r so^iir samm. jsjnc^|is4 ±a -Section ,3010 ( a ) ;
bssn. "ift^zistsacs11 on
R^M^jOc^obsr ^, 1976),
and
and
• Ths facility -»»st
undsr Ssctiojn .300 5 (a).
for » j>srmit:»« cj^quirsd
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- 2 -
If & facility meets all three of these requirements, it
has interim status for th« purposes of RCRA until a RCRA
permit has been issued or denied by EPA or a State authorized
for Phase II.
b) Assuming that a facility does not qualify for interim
status and has not been issued a RCRA permit, facility
construction and operation are precluded until a RCRA permit
is issued. Because EPA is not authorizing State permit
programs during phase I interim authorization, a facility
permit issued by a State with Phase I authorization is not a
RCRA permit. For the same reason, Phase I authorization of
a State program does not tuspend the RCRA Section 3005 require-
ment that in order to operate lawfully a facility must have
a RCRA permit or interim status. Because neither EPA nor
any States will be issuing RCRA permits during Phase I, only
facilities with interim status may operate during .that period.
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9542.1980102)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
OCT 3ib
pio-ao-2
MEMORANDUM
SUBJECT t latsrim Authorization of Programs Based oa
Emergency state Regulations
PROMi Stsffen W. Plshn Wj vL \jj fJ&A — *~
Deputy Assistant wmT iistrator
for Solid Waite (WHtf62)
R. Sarah Compton
Deputy Assistant A«ainistraiibr
for Water Enforcement (Q7-33S)
TOt PIGS Addressees
Can States use emergency regulations to obtain interim
authorization?.
DISCUSSION
In order to 'qualify for interim authorization a State
must have a hazardous waste statute and regulations that
meet minimum Federal requirements. In some eases when a
State promulgates final regulations they are subject to
State administrative review. Such a review process may be
time-consuming and delay .the State's receipt of Phase I
interim authorization. -Many States have authority to enact
emergency regulations which postpone this State administrative
review.
•
\
A major drawback of authorizing State programs based
upon emergency regulations is the possibility that the regu-
lation* may expire before final regulations are enacted. A
State hazardous waste program without regulations obviously
would not comply with minimum Federal requirements* and
interim authorization would be subject to withdrawal under
section 123.136. However, EPA could not administer a Federal
program in the State until the State voluntarily returned
the program to EPA or the extensive withdrawal procedures
under section 123.13(b) were completed. Theoretically* this
could result in a void during which no State or Federal
regulations would be in force in the State.
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-2-
ln~ addition to the possibility that the emergency regulations
would expire prior to the effective date of the final regulations,
EPA is also concerned that the state's final regulations might be
inadequate. The withdrawal procedures of 40 CFR 123.15(b) would
apply in either ease. However, the Agency wants to eliminate any
possible gap in regulatory control and address in advance questions
regarding reversion of the program in both of these situations.
Therefore, it is necessary that the Memorandum of Agreement
(MOJO describe the process whereby the State would immediately
and voluntarily return the program to EPA. The Federal regulations
provide for such a reversion process at 40 C7R 123.15(4):
"... or in such other manner as may be agreed upon with the
Administrator." The State mast also agree to submit its final
regulations for review of adequacy at the time it applies for
?has« II authorization.
DECISION
Recognizing both the advantages and disadvantages of allowing
a State to use emergency regulations to qualify for interim
authorization, EPA has decided to allow • State to use emergency
regulations, provided the State meets certain conditions.
SPA will grant Phase I interim authorization to a state
whose program under emergency regulations is substantially
equivalent to the Federal program if, in addition, the following
conditions are, meti
1) The State must show that under its normal administrative
procedures it will be able to enact final regulations
which wft.1 take effect before the emergency regulations
expire;
2) The MOA must provide that the State will submit its
final regulations to EPA for review at the time the
State applies for Phase II interim authorization; and
3) The MOA must describe the process by which the State will
Immediately and voluntarily return the program to EPA in
the event that the emergency regulations expire prior to
the effective date of the final regulations*
Emergency regulations will not be an eligible basis for
issuance of final authorization.
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9542.1980(03)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
IT
OFFICE OF WATER
WASTE MANAGEMENT
PIG-81-1
MEMORANDUM
SUBJECT:
PROMt
T0»
Issuet
The Use of State Permitting Systems During
Phase I Interim Authorization Which are not
Based on Explicit Regulatory Standards
Steffen W. Plehn
Deputy Assistant Admi
for Solid Waste (
J
R. Sarah Compton T)
Deputy Assistant Administrator'
for water Enforcement (EN-335)
PIGS Addressees
Can a State program be considered substantially equivalent
to the Federal Phase I hazardous waste program if the State con-
trols hazardous waste management facilities through a permitting
system which is not based on explicit regulatory standards?
Discussion*
This issue is not concerned with the authorization of
States to issue/revoke RCRA permits* a* is provided in $3005.
Such authorization will not be available to States until the
Phase II regulations are effective. During Phase I of interim
authorization, Federal interim status standards or their
State analogues apply to existing facilities. Some states
with Phase I interim authorization may elect to apply their
version of Federal interim status standards by issuing per-
mits containing conditions analogous to the Federal interim
status standards. This approach is perfectly acceptable.
However, a permit containing those standards is not a RCRA
permit and does not relieve the facility owner/operator
holding it of the obligation to apply for and receive a RCRA
permit after the effective date of Phase II.
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-2-
In those States which deal with hazardous waste only through
a permitting •system, the Agency is concerned with the substance
of the permit conditions. These permit conditions (along with
compliance monitoring) will be the key elements which determine
the success of a State program. The ideal situation exists when
permit conditions are based on explicit regulatory standards which
are substantially equivalent to the Federal interim status standards.
This situation has the advantage of minimizing the potential for
litigation by permittees who disagree with the permit conditions
and provides a sound enforcement position. Some States, however,
base their hazardous waste permit conditions on policy or guidance
rather than on explicit standards established via regulation. Such
a state program may require additional scrutiny by EPA prior to
making a decision on whether to grant interim authorization.
Decisiont
A State program may be issued interim authorization for Phase
I even if it controls hazardous waste facilities through a permit-
ting system which is not based on explicit regulatory standards. In
determining whether the State's facility controls are substantially
equivalent to the Federal program, the considerations discussed
below must be examined.
The State's program description must d«lin«at* th« conditions
that will be used in all permits and must demonstrate that these
conditions are substantially equivalent to the Federal interim
status standards.
The State must have the legal authority to apply these permit
conditions and to enforce compliance with the conditions. The
State Attorney General must indicate in his or her statement
(as part of the application) that such legal authority does exist.
Furthermore, the Memorandum of Agreement (MOA) must provide
that all permit conditions delineated in the program description
will be incorporated into all permits prior to the date of interim
authorization. The MOA must state that permits will not be re-
issued or modified unless as re-issued or modified they are sub-
stantially equivalent with the Federal interim status standards. The
MOA must .cacti fy that the permits will be modified, if necessary,
because of modifications in the Federal regulations, within one year
of the date of promulgation of the new Federal regulation. In cases
where a State) statutory amendment or enactment is required to reflect
changes in the Federal regulations, the MOA must provide that the
permits will be modified within two years, as provided by 40 C.P.R.
U23.13(e) (45 FR 33463). The MOA must also specify that all haz-
ardous waste management activities without a permit are prohibited.
Authority for such prohibition must be indicated in the Attorney
General's Statement.
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9542'1980(04)
- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20440
>*
.. P1G-81-4
MEMORANDUM
SUBJECT t "Deliating.' of Wastes by Authorized States
FROMi Steffen w. Plehn
Deputy Assistant
for Solid Waste (WE
R. Sarah Compton . ... • ••••
Deputy Assistant Administrator
for Water Enforcement (EN-335)
PZGS Addressees
Can a State with an authorized hazardous waste management
program be allowed to exempt ("delist") hazardous waste fron
individual sites?
DISOJSSIOSi
EVA has provided certain standards and procedures for
"delitting" waste from a particular generating facility or storage,
treatment, or disposal facility at which a hazardous waste is
generated (see 40 CFR 260.20 and 260.22, 45 Fit 33076, and preamble
discussion at 43 PR 33116). Persons seeking such a delisting
action may petition the Administrator of EPA for an amendment to
the Federal regulations which would provide the exemption. In the
petition* the person must show that the waste is fundamentally
different than that listed by demonstrating, as appropriate, that the
waste does nets
(1) exhibit the characteristic of ignitability,
corrosivity, reactivity, or toxicity,
(2) meet the criteria for listing the waste as acutely
hazardous (i.e., the oral or dermal L050 or
inhalation LC30 specified in 40 CF* 261.IK a)(2),
45 FR 33121) and also does not meet the toxicity
criterion,
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- 2 -
(3) contain the hazardous constituent of Appendix VTII
of 40 CPR 261 (45 PR 33312) for which it was listed,
or, if the waste does contain those constituents,
show that consideration of other factors argue against
the waste being considered a hazardous waste (see
40 CFR 261.11(a)(3), 43 FR 33121). This decision
is based on consideration of any of approximately ten
factors and is a discretionary one.
When a State program has been found to be substantially
equivalent to the Federal program, it receives interim
authorization to operate in lieu of the federal program; i.e.,
Federal requirements generally no longer apply, and the "requirement!j
of this subtitle' which are enforced under section 3008 of the
Act are those of the State program approved under section 3006.
Therefore, action by EPA to * ist a waste from * particular
generating facility (or storage, treatment, or disposal facility
which generates hazardous waste) in a State with interim authorization
would not affect the State requirements unless the State took a
similar action.
Some concern exists regarding the potential incompatibility
inherent, in allowing one State to delist, whereas another St*t«
may desire not to delist. This problem is not unique to the
issue of deTTsting, since the latter State program may be viewed
as a "more stringent* one (because it regulates more wastes) and
is acceptable under section 3009 of RCRA. (See the preamble to
40 CTR Part 123, Subparts B and F, 45 FR 33385.)
The question here is whether a State program with interim
authorization can provide a deli sting mechanism. If so, what shape
and form must that mechanism take if EPA is to authorize the State
program as "substantially equivalent" to the Federal program?
In the regulations under 40 CFR Part. 123, EPA is silent on
the issue- of State delisting mechanisms. A State without such
a mechanism is not precluded from receiving interim authorization.
The universe of wastes controlled by such a State would be subject
to change only through regulatory or statutory change.
For interim authorization, EPA requires the States to
control a universe of hazardous waste generated, treated,
stored, and disposed of in the State which is nearly identical
to that which would be controlled by the Federal program under
40 CFR Part 261 (see 40 CFR 123.128(a), 45 FR 33481). A State can
demonstrate that its program contains a delisting provision which,
nevertheless, leaves the State universe nearly identical to EPA's.
On the other hand, if the State's delisting mechanism lacked explicit
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- 3 -
standards.and procedures analogous to those included la EPA's
d•lilting mechanism, it would be difficult for SPA to assure
that the State was providing the proper control of wastes.
It is possible- that a State, as a result of its delisting,
may decrease its universe of wastes such that its coverage is no
longer nearly identical to the Federal universe. For example, a
question has arisen as to what would happen if an interim authorized
State abused its discretion in delisting wastes from individual
sites, but EPA, operating the Federal program in one or more
States into which these wastes were imported, refused to deliit
the wastes from those sites. This would clearly be a situation
where the State would be subject to withdrawal of EPA's authorization
for failure to exercise control over activities required, to be
regulated (40 CTR 123.136 and 40 CPR 123.14(a)(2)(i)).
DECISIONi State programs with delisting mechanisms may receive
interim authorization provided those delisting mechanisms are
substantially equivalent to EPA's. In order to be considered
substantially equivalent, the State must demonstrate that the
delisting methodology is consistent with its methodology for
listing. The Memorandum of Agreement must contain a provision
that the State will keep EPA fully informed of any State delisting
actiritise and should osJcs el«ar th« possibility of withdrawal
of authorization in the event that, due to delistings, the State's
universe of wastes is no longer nearly identical to EPA's.
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9542« 1980(05
*t UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
~ WASHINGTON. OC. 204«0
PIG-81- 6
f 4 I3flfl
MEMORANDUM **
SUBJECT: State Regulation of Federal Agencies for
Purposes of Interim Authorization
FROM t Stiffen W. Plehn LLL*-^ I JW —
Deputy Assistant Administrator
for Solid Watte (WH-i62)
R. Sarah compton
Deputy A««i»tant Administrator
for Water Enforcement (EN-335)
TOt PIGS Addreaeeea
ISSUE
Must Statee have independent statutory and regulatory con-
trol over Federal facilities and Federal agencies in order to
qualify for interim authorization?
DISCUSSION
I*- Introduction
Some States appear to exclude Federal agencies from their
regulated community/ thereby not requiring Federal agencies to
comply with State requirements placed on generators and transporters
of hazardous waste and oa owners and operators of hazardous
waste management facilities. Generally, the apparent exclusion is
not explicit. Hather, Federal agencies are* as a group, not
specifically identified in the State's definition of the regulated
community.
Approximately 700 Federal installations have notified EPA that
they are engaged in hazardous waste activities. Ground-water
contamination from two Federal facilities was cited by the
U.S. House of Representatives (House of Respreeentatives Report
494-1491, 1976) as part of the hazardous waste management problem
which required Federal action through the Resource Conservation
and Recovery Act of 1976.
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-2-
The purpose of this Program Implementation Guidance memorandum
is to indicate whether a State must have statutory and regulatory
authority for hazardous waste management over Federal agencies in
order to qualify for Interim Authorization, pursuant to 40 CFR
123 Subpart P.
II. Definition of a Federal agency
Federal agency is defined in RCRA 51004 (4) and in 40 C?R
260.10(a) (22). Federal agency means 'any department, agency, or
other instrumentality of the Federal Government, any independent
agency or establishment of the Federal Government including any
Government Corporation, and the Government Printing office".
As used in this memorandum, "Federal facilities" are any facilities
owned or operated by any "Federal agency".
III. What Federal requirements exist over Federal agencies?
Subtitle F of RCRA establishes Federal responsibilities for
solid and hazardous waste management. RCRA $6001 states that each
Federal agency shall be subject to, and comply with, the same sub-
stantive and procedural requirements for hazardous waste management
that are imposed oa other persons by Federal, State, and local
governments, when that Federal agency is engaged in activities
which result, or which may result, ia the disposal or management
of solid or hazardous waste.
Executive Order 12088 directs Executive agencies to comply
with the Solid Waste Disposal Act, as amended by RCXA (42 O.S.C.
6901 et seq). Section 1-302 directs the EPA Administrator or his
agent to conduct inspections, as necessary, to monitor compliance
by Executive agencies. Section 1-601 establishes that the Admini-
strator or an appropriate State agency can notify an Executive
agency of its violation of an applicable pollution control standard,
and approve a compliance plan and schedule. This procedure is in
addition to the other applicable statutory enforcement procedures
and sanctions.
XV. What control* must States have over Federal agencies to qualify
for Interim Authorization?
\
A. Universe of Wastes
The) Federal regulation at 40 CF* 123.128(a) requires that a
State program control a universe of hazardous waste generated,
treated, stored, and disposed of in the State which is nearly
identical to that which would be controlled by the Federal program
under 40 CT* Part 261. The "nearly identical" test is discussed
in the RCRA State Interim Authorization Guidance Manual (EPA,
1980, pp. 3.1-1,2). The test for substantial equivalence is based
on the generic nature of the waste, not on the nature of ownership
(e.g. Federal) of the generating facility or the waste.
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-3-
B. Generators, Transporters and Facilities
The Federal regulation at 40 CFR 123.128(b)(2) requirei that
a State program regulate all generators located in the State. The
regulations at 40 CPR 123.128(b)(3) through (8) require that the
State regulate generators in a manner substantially equivalent to
the procedural and substantive requirements of 40 CFR 262. Parallel
requirements for State programs concerning transporters of hazardous
waste are established in 40 CFR 123.128(c). The Federal regulation
at 40 C7R 123.128(e) requires that State programs enforce facility
standards which are substantially equivalent to 40 CFR 265, and
that State law prohibit the operation of facilities not in compliance
with such standards. 40 CFR Part 123, Subpert F indicates that
States are to exercise regulatory control over all generators,
transporters, and owners/operators of facilities managing hazardous
wastes.
C. State Controls
There is no provision in 40 CFR Part 123, Subpart F that
States may exempt from their regulated community those wastes or
waste management activities involving Federal agencies. Consequently,
in order to be substantially equivalent to the Federal program, a
State program must exercise authority over Federal agencies involved
in hezardoue w»«t« maa*9«mea«.
DECISION
For purpoeee of interim authorization, a State must
demonstrate, through its Attorney General's Statement and
Program Description* that it controls Federal agencies in
the manner required by 40 CFH f 123.128.
When State law and regulations explicity include Federal
ageneiee in the State's regulated community, the issue is
not in controversy* aad the Attorney General' s demonstration
would oe straightforward. This would be the case where a State's
definition of "person" (i.e.* those who are subject to the
regulatory requirements for hazardous waste management established
ia the State Program) explicitly includes Federal ageneiee.
Fede
from)
era! aoeaeies are not explicitly included ia (or
.' B-1-* \-* if »-d I-jIt* \-f -
When
excluded"
statutes aad regulations are sileat oa
are regulated)-* ths_
(i.e.*state
Federal agencies
rerthesii
'and re^Ulalorv framework. The State Attorney General eaa
"RCRA $6001 and Executive Order 12088 to demonstrate Congressional
aad Executive iateat that Federal agencies comply with State
Program requirements. However* theee citations do not independently
-------
provide the State with jurisdiction over Federal agencies.
In addition. when Federal agencies art not explieity included
in the regulated cenaunity, th«' Stata muit also indicate in
its Prograa Dascriation that it will I'iuuiatl Fiair&lTqlnej.a*
'in th« inannar d««crib
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9542.1981(31)
_ UNfTID STATES ENV! = C' I' "Ai. 3*CT-:T:CN AGSNCV
or WAT**
WAJTC MANAGCMtNT
PIG-81-11
MEMORANDUM
SUBJECT: Involvement of States 'without Phase II
Interim Authorization in RCRA Permitting
** . -^ *
FROM: Steffen W. Plehn
Deputy Assistant Administrator
for Solid Waste (WE-p'62)
R. Sarah Conpton Tk. _._ _
Deputy Assistant Aidmir.istatoV
for Water Enforcement (EH-335)
TOs PIGs Addressees
ISSUE
Bow should States without i--.*rim authorization for
Phase II be involved in RCSA per-itting?
DISCUSSIOH
As you know, the recent prc-ulgations of Phase IX
facility standard* under Part 264 and permitting requirements
under Part 122 enable) States to receive Phase XX interim
authorization for issuing RCBA permits- to the following
categories of facllitiest
* use and management of containers?
• storage and treatment of hazardous wastes in tanks,
surface impoundments, and waste piles; and
* treatment of waste in incinerators.
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-2-
In addition, EPA has published interim final regulations
(Part 267) which, for a period of 13 months, will allow £?«
to issue permits to new land disposal facilities pending
promulgation of the final land disposal regulations. States
may not receive interim authorization for permitting land
disposal facilities at this time, since the Part 267 regulations
only provide temporary standards which will not suffice for
determinations of substantial equivalence.
Although States may now apply for Phase II interim
authorization for permitting certain facilities, some
States may not chocne to do so in 1981. Some States may
postpone their Phase II application until the final Federal
land disposal regulations art promulgated later this ytar or
in 1982. Also, State preparation of Phase II applications
may take longer than Phase I applications, due to the complexity
of the technical facility standards and the financial.responsi-
bility requirements. Some States may need to adopt or amend
legislation and regulations to obtain substantially equivalent
authority in these areas and may need to add additional
personnel to administer the permitting program.
Given this situation* the Federal permit process
must be implemented in a way which maximizes the use of State
resources and technical capabilities and avoids inefficient
and confusing duplication with State programs. Therefore,
EPA must work closely with State permitting programs, especially
those programs which appear to be moving in a timely manner
toward Phase IX interim authorization.
DECISION
RPA. Regional Qffieae muafe seeV the active involvement
of State programs _in_the_eonduct of RCRA permitting during
the period beware a State ree«iv«« Phaae II interim authori-
zation. This policy will provide for the most efficient use
of EPA" and State permitting resources and technical expertise,
reduce confusion and paperwork burdens for the regulated
community and the public* and ease the transition toward
State administration of the RCBA permit program in lieu of
EPA» Whil« K9X p*feaAn* antharltv and raaoenaibilitv for
e,se II authorization.
tee as eloeelv as possible ui
State involvement prior to Phase IX interim authorization
should take several formes
* States should assist Regional Offices in the development
of permitting priorities and in initial contacts with potential
permittees, based on their own priorities and their knowledge of
local conditions.
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-3-
• States should review psrrr.it applications, share
information from their files, assist £?& in obtair.i.-.c
additional information (incluci.-.g site visits) a.-.i help
prepare technical analyses and support documents.
• States should assist in developing permit conditions
and should comment on draft and final*permits.
* Where unauthorized States must issue permits under
Stats law, they should participate with EPA in joint perait
issuance procedures (e.g., joint public notice, public
hearings/ response to comments).
These and other Federal-State working relationships should
be formalized in writing through an amendment to a Cooperative
Arrangement, a Phase I Memorandum of Agreement, or a Subtitle C
grant work program. Through these mechanisms, the State can
agree to perform specified tasks for which it has legal authority
and can be funded by EPA to perform those tasks.
EPA can also support State involvement in the permit
procees through funding of State travel by the Peer Matching
program. State access to EPA contractors, and participation
of State personnel in RCRA training. W« encourage Regional
Offices to be aggressive in securing State involvement as we
move toward the issuance of the first RCRA permits.
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9542.1931(02
SO STATES iNVIRCNME.N-TAL ??!GTi;T;C.N
WASHINGTON. O.C. Z3U60
MEMORANDUM . •>-" - ^ "^l PIG-81-10
SUBJECT: Transfer of Notification and Permit Application
Information tor States
PROMt /2^Stef f eh W. " Plehn
I Deputy Assistant Administrator
for Solid Wast* (WH-562)
R. Sarah Compton $&*M/jr+*J*+^ --
Deputy Assistant Xlniaistrator
for Water Enforcement and Permits (EN-335)
TO: PIGS Addressees
ISSUE i
When should EPA transfer information from both the notification
forms and the Part A's of the RCRA permit application* to th«
States? In what format should EPA transfer this information?
Row can the Statee aaeiat EPA to review and process this
information?
9
DECISION t
(1 ) Until EPA authorizes a State for Phase II Interim Authori-
zation to carry out a permit program in lieu of the Federal
permit program (or. authorizes a component of Phase II), ESA
esonible fog revl.ewing__and— acJsnowledoing RCRA
«
• *l.. q».^ 4 ~~*..A4- »^«..4.. .w
to meet the statutory requirement* for interim status and
acknowledging the) processes they may use and the wastes they
may handle during interim status*. EPA is also responsible
for these activities for those facilities not covered in a
State's authorisation for a Phase II component. However,
EPA encourages States to assist the Agency in reviewing
permit applications until such time as the State receives
its Phaee IZ authorization and will be receiving its own
permit applications*
•note that this acknowledgment of the processes a facility may
use and the wastes they may handle is based only on the owner/
operator's Part A application. SPA merely copies on to the
acknowledgment the wastss and processes the owner/operator
included on the application: the acknowledgment is not a
determination by EPA that a facility is an environmentally
acceptable facility for particular wastes.
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(2) EPA. Headquarters is providing stafr* solid and hazardous
waste management agencies with copies of the Agenev'a no*^-
cation report which presents a compilation of information that
'was received and processed between May 19, 1980 and November 19,
1980. The report includes the names and addresses of notifiers
in each State and a listing of the hazardous waste(s) they handle.
EPA will provide supplements of this report to State agencies
as new notification information is received and processed.
(3) Subject to confidentiality constraints, EPA will aiao ahar«
all Part A permit appl*^**tQ" Information wifeh the states.
Because there is a large volume of information, EPA Regional
Offices and States should work together to sort out exactly
which information items each State needs and when the State
needs it. The Regional Offices and States should set mutually
agreeable time frames for transferring the information. The
following items should be considered when transferring infor-
mation: (a) Transfer of information to States should not impede
or delay issuance of the first round interim status acknowledg-
ments (except in cases of special information needs, issuing
these acknowledgments is the higher priority), (b) If infor-
mation is transferred prior to completion of the verification
of all items on the Part A application, the Regional Office
should carefully identify the unverified information.
(4) EPA Regional Offices should initially use computer printouts
for transferring data to the states before copying notification
aad Part A permit application forms. This may satisfy a State's
initial information needs aad will save EPA a considerable amount
of time in copying forms.
Discussion*
Status of EPA review aad processing of notification and
PartT" permit application information
EPA has received approximately 60,000 notifications and
14,000 Part A permit applications. Except for recent submittals,
the Agency has reviewed aad proceeded all of the information from
the notification forms aad has the information available on the
Agency's APP computer files. EPA Regional Offices are presently
reviewing aad processing the Part A permit applications.
The Part A applications will be processed initially in two
rooads. Rouad oae of the review process consists only of deter-
mining that: (1) the applicant filed the correct permit applica-
tion forms on time; (2) the application indicates the facility
was in existence on November 19, I960; aad (3) a notification
was filed for the facility on or before August 18, 1980. EPA
-2-
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will s_end an initial acknowledgment to applicants when they
meet all of these three conditions. The purpose of thi»
acknowledgment is to inform the applicant that a preliminary
review of the information he provided indicates that he
appears to satisfy the statutory requirements for interim
status. EPA will not load any data into the computer data
base during this initial review except to "flag" the data
base to indicate those facilities for which EPA has sent an
acknowledgment.
During round two of the review process EPA will conduct
a more detailed review of the permit application. The purposes
of this round are (1) to attempt to verify that the facility
needs a RCRA permit; (2) to acknowledge the processes which
the facility is allowed to use and the wastes which the
facility is allowed to handle during interim status; and (3)
to check that the remainder of the information items required
in Part A of the application, such as the map, photographs,
and sketch have been provided. In the round two review, EPA
(using State assistance wherever possible) will resolve
errors and inconsistencies in information items by communicating
with the applicant. When EPA hat verified that certain key
items are correct, the data on the application will be loaded
into the computer data base, and a second acknowledgment
will be- sent to the applicant. This acknowledgment will
include a list of the wastes which may be handled during
interim status aad the processes to which the interim status
applies (based on the owner/operator's Part A application).
EPA and State responsibilities
There has be«n some) confusion as to what role the States
can play in reviewing and acknowledging permit applications.
Until a State r«e«ivee Phaee II T**»rim i.,*^,*.^ ton to e>grv
out a permit program in lieu of the Federal permit program""""
lor part uf I program, 1.4., 4 component of Phase II)*,^fi£A
is responsible for reviewing
ucin
or nter
applications, in
.
determining who appe
n §• 'T-»i-j.'ti-.-*TT-riyvr-
all permit
s to quaiiry
tne
handle durIn
rocesses tneay
•Ui* and the wastes th<
only Fnase I interim Authorization are
authorized to carry out a RCRA permit program and cannot
assume) responsibility for these functions (although they
can assist EPA in this area). EPA is also responsible for
these activities for those facilities not covered in a State's
authorization for a component of Phase II**.
•Do not confuse Phase I and Phase II of Interim Authorization
with the two rounds of Part A permit application processing.
**When a State receives interim authorization for one or more
components of Phase II, the issue of whether a facility (covered
by a component handled by the State) qualifies for interim status
is moot because State, rather than Federal requirements, then apply
-3-
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Therefore./ SPA is responsible for completing the review of
Part A of th.e permit agg^jj-Mi.gjia^ and gar sending QH^. ^eVn^w-
ledqTnents_1^ysPA must therefore retain the originals of. all
•notification forms and Part A's of the permit applications
which the Agency has received*.
—""" SPA encourages and welcomes States to assist the Agency in
reviewing and acknowledging applications, particularly for the
round two reviews. This State involvement has a number of
advantages: (1) it will give the States an opportunity to
become familiar with the information which applicants have
submitted; (2) the extra resources will help EPA expedite the
review and acknowledgment of applications; and (3) the States can
provide useful, and sometimes crucial information about certain
facilities of which EPA may not be aware.
State information needs and specific provisions for SPA to
provide States with information
The information EPA received in the notification forms
and in the Part A's of the applications can be useful to the
States in various ways. Some examples arei
(1) to evaluate the scope of State regulatory coverage .
and to determine if State control of hazardous waste is
"substantially equivalent* to Federal control,
(2) to calculate resource needs for conducting a State
hazardous waste permit program, for conducting surveillance
and enforcement activities, and for providing technical
assistance,
(3) as a potential source of data for revisions to grant
regulations,
(4) to assist States with interim authorization in preparing
reports to EPX,
(5) ae input for developing a strategy for siting hazardous
waste facilitiee,
(6) to aseist States with hazardous waste permit programs
to identify facilities which may need a State permit but have
not applied for one. (Likewise, state permit filee will also
be useful to EPA).
•Mote that this continuee to be important even after a State
receives interim authorization for one or more components of
Phase II, because if a State program reverts to EPA during
Phase II or at the end of the interim authorization period,
facilities without RCRA permits will again need interim status
in order to be able to operate lawfully.
-4-
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(7) to assist States with notification requirements to
identify non-notifiers.
(3) to assist State inspectors in conducting facility
inspections.
Both the "RCRA State Interim Authorization Guidance Manual",
issued June 25, 1980, and the "Additional Guidance for Cooperative
Arrangement* under Subtitle C of RCRA", issued August 5, 1980,
provide, that States may obtain notification and permit application
information. Specifically, the guidance for interim authorization
indicates that EPA will furnish to States with interim authoriza-
tion copies of notification forma and permit applications within
30 days after the Memorandum of Agreement is signed. The guidance
for cooperative arrangements does not specify that EPA will
furnish notification and permit application information to the
States. However, under cooperative arrangements, the states
are encouraged to assist EPA in identifying and contacting non-
notifiers and to make recommendations to EPA concerning the
review of applications. In order to make this process work,
the Agency will have to provide the States with some notification
and Part A information, consistent, of course, with th« confident-
iality provisions in 40 CFR Part 2.
Assessing individual State information needs and formats
for transferring information
.EPA Headquarters will send each State solid and hazardous
waste management office copiee of EPA's summary report contain-
ing notification information received during the period of
May 19, 1980, to November 19, 1980 i The report contain* the
following items of information oa hazardous waste facilities:
the name and location of the facility; the type of activity(ies)
(i.e., generate, transport, treat, store, or dispose of hazardous
waste); a listing of the hazardous wasts(s) which the facility
handles; the name of the owner of the facility; whether or not
the facility is Federally or privately owned; and whether or
not there is^aa underground injection well located at the
facility. The report has tea volumes; one volume for each of
EPA's tea regions. Each volume contains a State-by-State list-
ing of notlfiers. The Agency will routinely send State Agencies
supplements to this report as new notification information is
received and processed.
While EPA intends to share fully with the States all permit
application information, transferring this information requires
a significant resource commitment, and if not done carefully
can result in the States being inundated with information which
has not been verified and therefore may be of little use to the
State. We recommend that Regional Offices and States verk
together and carefully assess what specific pieces of Part A
-3-
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application data the individual States need to run their program
and to assist EPA, and when that data is needed. For example,
a State with Phase I interim authorization may need to know
early on who has applied for a Federal permit and who has received
a round one acknowledgement. The State may have no immediate use
for information about the processes or wastes described in the
application, except on a case by case basis. In this example,
it would make little sense for EPA to spend time copying Part A
forma in order to provide the State with the information.
instead, as EPA completes the round one reviews for facilities
in the State, it would be better for the Agency to provide the
State with computer printouts containing the names and addresses
of all facilities EPA considers to have interim status. This
approach would provide the State with much of the information
it needs, save EPA a considerable amount of time in copying forms,
and eliminate the possibility of the State clogging its files
with superfluous information which may be inaccurate since it
has not been reviewed by the Agency.
A number of notifiers and applicants have submitted claims
of confidentiality for their information. EPA will transfer
to the States information covered by these claims only in
accordance with the provisions of 40 C7R Part 2.
-6-
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20410
25, 1982
OP
MSMORA5DUM
SUBJECT:
?ROM:
TO:
SOUO WAST1 AND IMIMQIMCV
PIG-82-4
State and SPA Interaction Regarding Exclusion
of Wastes Generated at Individual Facilities
("Delisting")
Rita M. Lavelle
Assistant Administrator (WB-562-A)
Program. Implementation Guidance Addressees
ISSTTE;
What are the roles of SPA and the State vith respect •
to exclusions granted to individual facilities ("delisting")
in States vith Interim Authorization?
DISCUSSION; -
%
-Previously issued Program Implementation Guidance (number
81-4) indicated that Stata programs which provide for the
delisting of vaste from individual facilities could receive
Interim Authorization (IA) vhere the States' procedures vtre
substantially equivalent to the Federal program. That Guidance
also indicated that tht Memorandum of Agreement (MOA) betveen
the Regional Office and the authorized State must provide
that the State viH keep SPA-fully informed of any State
delisting activities. ,The MOA is also to clearly indicate
that if delisting action causes the State program to no
longer be substantially equivalent to SPA's, the Agency may
begin proceedings to vithdrav the State's authorization
(40 C?R 123.136
The purpose of this memorandum is to provide guidance
regarding State/Federal delisting activities in States vith
Interim Authorization. More specifically, this Guidance vill
describe delisting assistance vhich SPA vill provide, define
the roles and responsibilities of the various State and SPA
offices in delisting, and discuss coordination among these
offices.
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- 2 -
A. Authorized State's Role in Conducting D•listing
Activities
Except as provided below, IA States which have the
(State) legal authority to delist are solely responsible for
the delisting of wastes in their States for purposes of State
regulation. As resources allow, EPA will provide assistance
to th« States on request.
Federal delisting in an IA State would have no effect
on the State's own regulatory control program and, therefore,
could be a duplication of effort without any benefit. Thus,
if the Office of Solid Waste (OSW) receives a delisting
petition pertaining to a facility in a State with Interim
Authorization, OSW will contact the petitioner and inform
him that the State, rather than SPA, manages the hazardous
waste program in the State and that Federal delisting may be
unnecessary. It should be noted that, while, the effect of
Federal delisting is to exclude the facility's waste from
Federal regulatory control, the State's regulatory control
is not affected by the Federal delisting. (Thus, a waste
d«ii«t«d by EPA could still be a hazardous waste for State
purposes when managed within the State.),
However, EPA delisting in IA States will be conducted
if: (1) the facility's waste may be managed in a way which
would bring the waste under Federal jurisdiction (e.g., the
waste is transported across State boundaries) or (2) if the
facility owner/operator specifically requests EPA to process
his petition (e.g,, the facility may want the option of
shipping the wastes out-of-state in the future). Before •
OSW initiates processing of the petition/ the appropriate
Regional Office will be informed of the upcoming action?
the Regional Office will be expected to then inform the
State. The appropriate Regional Office will also be informed
of OSW's decision on whether to grant or deny the petition
before OSW informs the petitioner; the Regional Office should
then inform the State.
\
B. EPA Hole in IA States' Delisting Programs
Genarally, EPA's role is one of oversight to provide that
the State's program continues to be substantially equivalent
to the Federal program. In some States an expanded EPA role
may exist by virtue of special provisions in the MO A.
As discussed in previous Guidance (number 81-4), the
MOA is to provide that the State will keep EPA fully informed
of any State delisting activities. This will provide EPA
with the opportunity to review State delistings. SPA's
review function is especially relevant where categorization
of a waste is not clearly defined. In order to facilitate
this review function, this Guidance clearly defines
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- 3 -
responsibilities of the various offices, where appropriate,
the Regions should consider amending existing MOA's to define
specific responsibilities.
C. State and EPA Responsibilities
State Responsibilities
1. Authorized States should promptly notify the Regional
Office of all "delisting" petitions received.
2. Authorized States must submit copies of all petitions,
supplements to these petitions and decisions made (e.g.,
memoranda and letters imparting the State's position to the
petitioner) to the Regional Office on a semi-annual (or more
frequent, if desired) basis.
Regional Office Responsibilities
3. When the Regional Office receives notice from OSW of
receipt of a Federal delisting petition (see item 6 below)
it is expected to immediately inform the State and clearly
offer and make arrangement* for the State to comment on tft«
petition before the Office of Solid Waste makes a determination
to grant (temporarily or finally) or deny the petition. In
particular, the State should be offered the opportunity to
comment early oa any deficiency of information in the petition
to assist the Office of Solid Waste ia requesting additional
information from the petitioner which is necessary in many cases.
Because EPA's delisting process is a rulemaking procedure
(resulting ia aa amendment to 40 CFR Part 261, if a delisting
petition is granted), we cannot offer a State a participatory
role ia delisting determinations. However, because a State
has a genuine interest ia assuring that EPA's delisting
determinations are made on accurate aad complete information
and because a State may have or know about information relevant
to a petition, OSW, through the Regioaal Office, should assure
that the State* (berth ZA aad other States) have a timely
opportunity to comment on petitions received a:
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- 4 -
substantially equivalent to the Federal program.
Office of Solid waste Responsibilities
6. On receipt of a delisting package from a petitioner, OSW
will notify the appropriate Regional Office, which in turn, will
be expected to notify and solicit State input and relay it to
OSW (see item 3, above).
7. On receipt of a State delisting package (e.g.* petitions,
supplements to petitions and a State's decisions on petitions)
froo the Region (see item 4, above), OSW will review the
package and notify the Regional Office by memorandum of its
agreement or disagreement (including pertinent reasons) with
the State's decisions.
In their MOA's, some IA States have provided for prior
EPA concurrence with the State delisting decision. In these
instances, OSW will continue to evaluate petitions submitted
to EPA but will work closely with the Region and State in order
to reach a joint decision on whether or not to grant the delist-
ing. Thus, if OSW receives a petition from a facility in a
State which requires Federal concurrence with the State's
delisting decision, OSW will contact the petitioner and inform
him that the State manages the hazardous waste., program in
that State and that Federal delisting is unnecessary, except
as noted above. OSW will then proceed to evaluate the petition,
since the State will ultimately be seeking EPA concurrence
on the State delisting decision. However, this evaluation will
not culminate in the usual Federal Register rulemaking.
DECISIONt
Where the State has IA and operates a delisting program,
the State is the) agency responsible for conducting the delisting
of waste within the State for purposes of the State program.
Where petitioners may manage wastes so as to bring the wastes
under Feoeral jurisdiction, or if petitioners specifically
request EPA to act on their petitions, OSW will continue to
evaluate and reach decisions on the petitions. In such
ease* OfW will keep the Region informed; the Region, in
turn, will ke«p the State informed and offer the State the
opportunity to comment on the petition to EPA. In addition,
in those States which require prior EPA concurrence with the
State's delisting decision before a particular facility's
waste is delisted, OSW will work with the Region and State
in order to reach a decision on whether or not to grant the
delisting.
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9542.1982(02)
Federal Deliatlng and RCRA Persisting
in Interim Authorized Statsa
Dan Derkics, Coordinator
Northern States PATs
Richard C. Boynton, Chief
Permits Development Section - Region i
This is in response to your April 28 nemo (postmarked
Kay 26 and received on June 3) in which oeso you requested
Headquarters' clarification of the following:
"In a Phase I authorized state, oust EPA isaiw
a penult to a facility handling a waste which was •
included in both the state's and EPA'a universe of
regulated wastes at the tine of authorization, but
was subsequently excluded by EPA?"
Tour question has been reviewed by several Headquarters
officials, including representatives on the Stable* PAT. The
reviewers are in general agreement that 2PA does not have to
iaoue a permit to a facility managing a federally-excluded
or delisted waste. Reviewers from the Offlet of General
Counsel were careful to emphasize that the federal regulations
also do not allow writing a federal permit for such a waste
which is no longer a hazardous waste under the Federal system.
The regulatory prohibition of 40.CFR 123.121(1)(2) applies
for purposes of RCRA permitting, even la an authorized state
which decides not to exclude or delist the waste:
"Where an approved program ha* a greater scope
of coverage than required by federal law the
additional coverage is not part of the federally
approved program*.
Program Implementation Guidances (PZGs) 82-1 and 3
provide further explanatory guidance which can bt read to
address an important underlying issue raised by your question:
what effect (if any) does a federal delisting .or exclusion]
have in aft authorized s«:att? Both PIOs reaffirm the principle
of the state's Phase I- approved hazardous waste universe apply-
ing (in lieu of the Federal system) for purposes of federal
permitting. PX9-A2-1 defines "the universe of hazardous waste
considered part of a state's Phase I authorized program art
thost waatts idtntlfitd or liattd by both 2PA and the state".
PIG 82-3 further dtscribts that a state program, for purposes
of federal enforcement, is broader in scopt if it includes
wastes that art in addition to thost listtd in the federal
universe. Following the above-stated logic of this guidance,
the federal delisting [or exclusion] can bt sttn to do two
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- 2 -
things: Cl) it reduces the federal hazardous vaste universe
against which the state univerrs is eatched to determine
what part of the state's program is authorized, and (2) it
leaves the state program with a univeree that is broader in
scope than the Federal system (unless the state also delists
or excludes wastes).
Accordingly, the federal delisting [or exclusion] oust
Automatically place the waste outside the coverage of the
RCPA program: both the federal prograa and the previously-
authorized portion of the state program!The coeplete answer
to the question in your nemo la therefore as follova:
If a state program is approved and SPA (but not the
state) subsequently delists [or excludes] a vaste in
the state, that vaste is automatically no longer a
part of the federally-authorized state program and a
RCRA hazardous vaste permit eaanot be issued to a
facility managing that vaste. x
cc: John Skinner
Tru«tt D«G«*r«
Susan Absher
Denise Havkins
Dots Darrah
Stablez PAT
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
9542.1982(03)
AUG «.»82. PIG.82.5
SOLID WASTI AND CMf NOINCY MCSFCNSt
MEMORANDUM
SUBJECT: Status of State Permits Issued Before a State
Receives RCRA Phase II Authorization
FROM: Rita M. Lavelle • •>. S?~
Assistant Administrator for
Solid Waste and Emergency Response (WH-562-A)
TO: Program Implementation Guidance Addressees
ISSUE
Once a state is authorized for a component of Phase II,
what is the status of hazardous waste facility permits which
the state issued prior to being authorized for the component?
.'an they 'be considered RCRA permits? What is the status of
an EPA-issued federal permit in a state authorized for a
component of Phase II?
DISCUSSION
Prior to being authorized for a component of Phase II a
state may require facilities that treat, store, or dispose of
hazardous waste to obtain a state permit. There are no pro-
visions withi ru RCRA or the federal hazardous waste regulations
for- • desi gnating these pre-authorization state permits as RCRA
permits. RCRA permits can be issued only by EPA- or an autho-
rized state. Authorization requirements ensure .that an autho-
rized state will be using procedures substantially equivalent
:o the federal permitting procedures (state procedures must,
of course, meet the requirements of Section 7004(b) of RCRA)
and will be requiring compliance with standards providing
substantially the same degree of protection as the federal
technical standards (See 40 CFR 123.129).
Before a state is* granted Phase II authorization, five
situations are possible for a hazardous waste management facility
operating in a particular state. In all of these situations
-------
RCRA Secilon 3005(a) applies. That is, owners and operators of
facilities tha; treat, store, or dispose of hazardous waste can
legally do so only when they have a RCRA permit. Also, RCRA
jection 3005(e) applies, allowing qualified facilities to continue
;o operate under federal "interim status". When the state receives
interim authorization different results occur in each of the five
situations as described below.
1) A facility has neither a sta.te permit nor a federal
•»«••»« ,. _. *» / b • i •.. *«.*••.• •• >
It W<\< • ^tal III I • \VMV •«••«• IIM.to I te W to ' •• ..••«.. •>•• * • M « M * J
•
This situation i$ very straightforward. The state :nust
eventually Issue the facility a state RCRA permit. Of
course, before the stile could have obtained Phase I
interim authorization, it must have had some mechanism
in place to apply standards substantially equivalent
to federal Interim status standards to all of the hazard-
ous waste management facilities within its borders.
2) A facility has a state-issued permit but no federal
RCRA permit (but does have federal interim status)
This situation is also fairly straightforward; the state
must eventually issue a RCRA permit to the facility.
The facility can continue to operate lawfully until that
time, provided the facility will be subject to state
standards substantially equivalent to the federal
interim status standards. The timetable for re1ssu»nce
can be negotiated between the Regional Administrator and
the State Director and is to be delineated in the Memorandum
of Agreement and discussed in the Program Description.
Legally, the state permit cannot- be considered a RCRA
permit even if the state permit was Issued using standards
and. procedures that were eventually authorized. However,
under these circumstances there would be very little reason
:o reissue trie permit in the near future, and the state
could plan to reissue the permit at the end of the current
permit term or at some other convenient time.
3) A facility has a federal RCP.A permit but does
not have a state permit
In this situation the state can assume responsibility
for the administration of the RCRA.permit if 1t has
explicit authority allowing it to directly administer
and enforce permits Issued by the federal government.
As an alternative, the state can Issue a RCRA permit to
the facility. Where the state issues a RCRA permit, EPA
should suggest to the federal permittee that the permittee
should agree to the termination of the federal permit.
The EPA-issued RCRA permit cannot be terminated with-
out the agreement of%the permittee unless one of the
causes for teminatian in 40 CFR 122.16 is present.
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4) A facility has both a federal RCRA
permit and a state permit
This situation is a combination of cases (2) and (3),
above. The state must eventually issue a state RCRA
permit to the facility or can assume responsibility to
administer the federal permit if it has ther authority
to do so. The schedule for reissuance of the state
nAPTlHt ic fn ho en«<"S^i«H in tK* M*««>»*»mAtmf *£ A »•» A **»«» •»*
* •••*t* • • ••••»
Since the facility has a federal RCRA permit, the urgency
for state reissuence of a stst* P.CRA permit diminishes.
This would be 'especially true if the previous state
permit was issued using standards and procedures that
were eve-ntaTly authorized.
5). A facility has identical federal RCRA and
state permits that were issued jointly
In those situations where both permits are Identical and
were issued jointly, EPA can propose its intent to con-
sider as RCRA permits the jointly-issued or identical
state permits when the Agency announces receipt of the
state's complete Phase II application. In this last
situation, the RCRA permit can be terminated with the
agreement of the permittee (or for one of the causes
for termination 1n 40 CFR 122.16). If the RCRA permit
1s not terminated, then the facility will operate under
two identical permits*
The' assumption underlying all of the above scenarios 1s-that
any EPA-issued permit continues in full force and effect after
Phase II authorization. EPA-issued permits continue 1n
force until terminated either ur.Jer 40 CFR 122.lo [see 40
CFR 123.6 (b)(l), 123.126 (c)(l) and 124.5(d)3 or by the
agreement of EPA and the permittee. Permittees with EPA-issued
permits thus would be subject to the requirements of 40 CFR
Pa^ts 122 and 124 until their EPA-issued permits are terminated.
The permit terms and conditions, as well as the applicable
requirements of Part 122, would be the "requirement of
this subtitle" (Subtitle C) which EPA could enforce under
Section 3008 of RCRA.
EPA would prefer not to be administering and enforcing federal
permits in authorized states. Thus, it 1s extremely desirable that
EPA and a non-authorized state coordinate their permitting activities
so that whenever possible they hold joint hearings and issue identi-
cal or nearly identical permits. Then, upon authorization, those
state permits can be considered RCRA permits. Alternatively, i:
would be extremely desirable .for those states that are currently
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making legislative or regulatory changes to incorporate in their
legislation (o'r in their regulations, if their legislative author-
ity is already broad enough to allow it) a provision allowing them
to summarily transform federal RCRA permits into state RCRA permits.
That is, the stat« would want-to be able, through some very simple
procedure, to issue state RCRA permits incorporating all the terms
and conditions of the federal permits.
k/ L V 4 «<
All facilities ihat treat, store, or dispose cf hazardeus
waste can do so legally only under a state or federal RCRA permit,
federal interim status, or a state analogue to Interim status.
The only instance where a state permit that was Issued prior to
Phase II authorization can constitute a RCRA.permit 1s where the
state permit was Issued jointly with and 1s Identical to a federal
RCRA permit. In such a case, when EPA receives the state's appli-
cation for Phase II, EPA should announce (as part of the Federal
Register notice of receipt of a complete Phase II application) its
intent to consider the identical, jointly-Issued state permits to
be RCRA permits and .take comment on that intention. At the time of
joint permit processing, EPA should also announce such an Intent
1f the state is one that may seek Phase II Interim authorization.
Except for the above situation where joint Identical state and
federal permits occurred, all state permits will need to be modified
or reissued by the state as RCRA permits once the state 1s author-
ized. The schedule for relssuance can be negotiated between the
state and the Region and must be delineated in the Memorandum of
Agreement and described 1n the Program Description. In those cases
where there are previously-Issued federal RCRA permits, the state
may possess the authority to assume the administration of those
permits, thereby negating the need for. Issuance of a state RCRA
permit. EPA-issued RCRA permits cannot actually be terminated
without the agreement of the permittee unless one of the causes
for termination in 40 CFR 122.16 is present.
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9542.1983(01)
August 2, 1983
MEMORANDUM
SUBJECT: Changes During Interim Status in Phase II
Authorized States
FROM: John H. Skinner
Director, Office of Solid Waste (WH-562)
TO: Merrill Hohman
Director, Air and Hazardous Materials Division
Region I
In your June 13 memo to me, several issues were raised
concerning interim status changes in authorized States- and the
Region's role in quality control of changes to the RCRA facility
data base. Our response to these issues is outlined below.
• Do Phase II interim authorized States make
determinations on interim status changes and
termination of interim status in lieu of EPA?
Yes, once a State has Phase II or final authorization, the
State may make determinations relating to changes and termination
of interim status. EPA may not make such determinations for
facilities covered by components for which the State is
authorized. Additional guidance on this issue can be found in
the attached copies of PIG 81-10 and John Skinner's July 20, 1981
memorandum to Region IX.
• Do Phase II interim authorized States have to agree to
utilize procedures substantially equivalent to EPA's
procedures with respect to changes during interim
status or termination of interim status? Must these
procedures be in regulation in order for the State to
qualify for Final Authorization?
State programs are not required to have an analogue to
Federal interim status in order to qualify for interim or final
authorization. A State may instead require existing facilities
to comply with such standards through permit terms and
conditions. If a State does allow continued facility operation
through an interim status analogue, the State's requirements and
This document has Jbeen retyped from the original.
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-2-
procedures must be substantially equivalent to the Federal
regulations for Phase II interim authorization. For final
authorization they must be at least as stringent as the Federal
requirements. These procedures need not be in regulation for
interim authorization, but for final authorization they must be
of a regulatory nature.
The RCRA regulations allow States to provide for continued
facility operation without a RCRA permit only if the facility
would qualify for Federal interim status. (See §§271.13(a) and
27i.i29(b)(2).) In order to qualify for Federal interim status,
facilities must meet the requirements of §270.70 which requires
compliance with §270.10 regarding general permit application
requirements, including grounds for termination of interim status
(§270.10(e)(5)). Section 270.10(g)(1)(iii) incorporates §270.72
or the authorized State's analogue to §270.72, obligating
facilities to conform to specific provisions regarding changes
during interim status.
For a State with an interim status analogue, the Model
Attorney General's Statement on page 2.3-8 of the Final
Authorization Guidance Manual requires the following
certification: "State Law and regulations assure that any
facility qualifying for State interim status continues to qualify
for Federal interim status." As provided in §§271.13(a) and
27i.l29(b)(2), this certification ensures that facility changes
allowed by the State will conform with §§270.71 and 270.72;
otherwise, the facility would not continue to qualify for Federal
interim status. Likewise, States should terminate interim status
when a facility meets conditions under §270.73. Checklist V of
the Final Authorization Guidance Manual provides for citations to
State interim status analogues (page A-70).
The Headquarters' comment on Maine's Phase II application is
consistent with the Final Authorization Guidance Manual and the
above discussion. Since Maine has an interim status analogue,
for final authorization the State provisions for changes to
existing facilities must be no less stringent than §270.72.
Does EPA Washington expect the regions to quality
control the additions, deletions, or changes made to
the RCRA facility Data Base fVer. IV) bv authorized
States?
Yes, in order for HWDMS users to have full confidence in the
data, systems must be in place to ensure that the information is
correct. The Regional Offices should monitor the quality of
additions, deletions, or changes to the data base made by
This document has been retyped from the original.
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•3-
authorized States. Regional quality control can be accomplished
through the following activities. The Regions should assure that
State deletions of Part A data are supported by on-site
inspections of the facility. The reports of these inspections
should be verified by the Regions during the quarterly file
audits or mid-year reviews. If the inspection data is of
questionable value, joint inspections should be conducted.
Routine additions or changes to Part A information by the State
should also be verified through random file audits during the
Region's scheduled reviews of the state.
Thank you for relaying your concerns on these important
issues. If you have any further questions, please contact Bruce
Weddle at 382-4746.
Attachment
cc: Division Directors, Regions II-X
Pam Hill
This document has been retyped from the original.
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SS STATES IVVIPONMENTAL'"'OTECTION AGENCY -1985(01)
January '11, 1935
MEMORANDUM
SUBJECT: RCRA Reauthorization Statutory Interpretation 12 :
EVtensions of Interim Authorization of state
Hazardous.vwste programs
WW 'I?*'
FROM: JStTw. McGraw
Acting Assistant Administrator
TO: Regional Administrators
Regions I-X
The Hazardous and Solid Waste Amendments of 1984 extend
the interim authorization period to January 31, 1986. Each
Regional Administrator has extended the previous deadline
(January 26, 1985) for some States for good cause (see 40 CFR
271.122(c)). In the absence of a further extension, interim
authorization for these States' hazardous waste programs will
expire on the previously published deadlines. At that point,
reversion of the States' programs to Federal control would
be automatic.
Extensions for "good cause" were typically granted to
States which encountered unforeseen difficulty in developing
RCRA equivalent programs or encountered difficulty in sub-
mitting their applications for authorization. Any further
extensions should be granted on that basis also.
Should you decide to extend the authorization deadline
for certain States, w« have attached for your reference a
sample Federal Register notice for announcing their extensions.
Where youTvTiE to grant extensions, the notices must be
published by January 26, 1985, in order to avoid terminiation
of interim authorization on that date.
Attachment
cc: Hazardous waste Division Directors, Regions I-X
Hazardous waste Branch Chiefs, Regions I-X
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(SAMPLE NOTICE)
U. S. ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
Hazardous Waste Management Program; Extensions Of
Application Deadline For Final Autnorization
AGENCY: Environmental Protection Agency (EPA)
ACTION: Notice of Extension of Phase I and II Interim Authorization
for California, Guam, and Nevada.
SUMMARY: EPA previously granted an extension of interim
authorization to January 26, 1985, for the States of California
and Nevada, and the Territory of Guam. These States and Guam
recently requested a further extension of interim authorization
beyond the January 26, 1985 deadline. This extension would
allow for continuation of their interim authorization under the
Resource Conservation and Recovery Act (RCRA), as amended. EPA
is granting the requested extension to avoid the reversion, on
January 26, 1985, of their interim authorization. This notice
extends California's Phase I and IIB, Nevada's Phase I, IIA
and B, and Guam's Phase I interim authorization until January 31,
1986, or until the date these States and Guam receive final
authorisation* whichever is earlier.
EFFECTIVE DATBs [Date of publication]
FOR FURTHER INFORMATION: Chuck Flippo, RCRA Programs Branch,
Environmental Protection Agency Region IX,
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2
(SAMPLE NOTICE)
215 Fremont Street, San Francisco, CA 94105, telephone
(415) 974-8128.
SUPPLEMENTARY INFORMATION:
Background
Section 3006 of the Resource Conservation and Recovery
Act (RCRA) allows EPA to authorize State hazardous waste
programs to operate in the State in'lieu of the Federal hazardous
waste program. Two types of authorization may be granted.
The first type, known as "interim authorization" is a temporary
authorization which is granted if EPA determines that the
State program is "substantially equivalent" to the Federal
program (Section 3006(c), 42 U.S.C. 6226{cM. EPA's implementing
regulations at 40 CFR 271.121-271.137 established a phased
approach to interim authorization: Phase I, covering the EPA
regulations in 40 CFR Parts 260, 263, and 265 (universe of
hazardous wastes, generator standards, transporter standards
and standards for interim status facilities) and Phase II,
covering the EPA regulations in 40 CFR Parts 124, 264 and 270
(procedures and standards for permitting hazardous waste
management facilities).
Phase II* in turn, has three components. Phase II A
covers general permitting procedures and technical standards
for containers and tanks, and, in certain instances (see
California section below for discussion), for surface impound-
ments and waste piles as well. Phase II B covers incinerator
facilities, and Phase II C addresses landfills and land treatment
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3
[SAMPLE NOTICE
facilities.
The second type of authorization is a "final" (permanent)
authorization that is granted by EPA if the Agency finds that
the State program (1) is "equivalent" to the Federal program,
(2) is "consistent" with the Federal program and other state
programs, and (3) provides for adequate enforcement (section
3006(b), 42 U.S.C. 622Mb)). States need not have obtained
interim authorization in order to qualify for final authori-
zation. EPA regulations for final authorization appear at 40
CFR 271.1-271.23.
40 CFR 271.122(c)(4) requires States which have received .
any, but not all, phases/components of interim authorization
to have amended their original submissions by July 26, 1983, to
include all components of Phase II. (See 47 FR 32377, July 26,
1982.) Further, 40 CFR 271.137(a) provides that interim authori-
zation automatically terminated (reverted) on July 26, 1983,
unless the State had submitted an application for all phases/
components of interim authorization by that date. (See 47 FR
32178, July 26, 1982.) Where the authorization (approval) of the
State program reverts, EPA is to administer and enforce the
Federal program in the State.
However, 40 CFR 271.137(a) also allowed the Regional
Administrator to extend the July 26, 1983, deadline for good
cause so that the State program would not revert to CPA. A
Regional Administrator could not, however, extend the deadline
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4
(SAMPLE NOTICE)
past January 26, 1985, as 40 CFR 271.122(b) provides that
interim authorization of a State's hazardous waste program
ends 24 months from the effective date of the last component
of Phase II. The last component of the Phase II regulations
was published on July 26, 1982. It became effective on
January 26, 1983; thus, interim authorization was to end on
January 26, 1985. (See 47 FR 32365, July 26, 1982.)
The Hazardous and Solid Waste Amendments of 1984
(PL-98-616, Nov. 8, 1984), amended Section 3006(c) to allow
interim authorization to extend to January 31, 1986. Therefore,
the Regional Administrator has authority to extend a State's
interim authorization to January 31, 1986, in appropriate
cases.
California
California received Phase I interim authorization on
June 4, 1981, and Phase II A interim authorization on January 11,
1983. The State's phase II authorization includes only
responsibility for permitting storage and treatment in tanks and
containers. It do«s not include responsibility Cor permitting:
1) treatment in surface impoundments, waste piles, land treat-
ment facilities, or incinerators; 2) storage in surface impound-
ments or wast* piles; or, 3) disposal facilities.
The state chose to apply for final authorization in
lieu of additional increments of interim authorization.
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5
(SAMPLE NOTICE)
EPA granted California's request for an extension of interim
authorization until January 26, 1985, because the State had
made a good faith effort to pursue regulatory and statutory
amendments necessary to secure final authorization. This effort
constituted "good cause" for extending the State's deadline
for submission of their application for final authorization.
(See 49 FR 33018, August 20, 1984.) The State then expected
to submit its application in September 1984; however, the
State subsequently encountered significant delays in adopting
the necessary three sets of regulations under two different
statutes due to a lengthy public hearing process and extensive
public interest in the regulations. California now intends
to submit its official application by July 198S after sub-
mitting a draft application in March 1985. California expects
to receive receive final authorization by January 31, 1986.
Guam
The Territory of Guam received Phase I interim
authorization on May 16, 1983. Guam chose to apply for final
authorization rather than apply for Phase II interim authoriza-
tion. Before submitting a final authorization application, the
Territory needed to adopt both statutory and regulatory
amendments. Guam requested and was granted an extension to
submit their complete application and gain final authorization
by January 26, 1985. Because the Territory had encountered
significant delays in developing and adopting the necessary
regulatory and statutory amendments, but had made a good faith
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6
(SAMPLE NOTICE)
effort to pursue those amendments, good cause was shown to
allow extension of the deadline for obtaining final authori-
zation to January 26, 1985. (See 49 FR 33018, August 20,
1984.) The'Territory expects to receive final authorization
by July 1985.
Nevada
Nevada received interim authorization for Phases I, II A
and XI B on July 19, 1983. The State chose to apply for final
authorization rather than apply for Phase II C interim
authorization. Revisions to the State's regulations, needed to
meet the requirements for final authorization, were completed in
June 1984. The State then planned to submit an official final
authorization application in July 1984. The State requested
and was granted an extension to this deadline because the
State encountered significant delays in completing the statutory
amendment necessary to secure final authorization. The
State's biennial legislature and limited (60 day) legislative
term added to the State's difficulty in gaining approval of
the necessary statutory amendments. The State's good faith
effort to pursue the necessary statutory amendment constituted
good cause for extension of the State's deadline for gaining
final authorization to January 26, 1985. (See 49 FR 33018,
August 20, 1984.) The State now intends to submit its official
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7
(SAMPLE NOTICE)
application for final authorization by December 1984 and
receive final authorization by July 1985.
DECISION;
In consideration of the above schedules and the States' continued
good faith efforts to adopt hazardous waste programs necessary
to obtain final authorization, the immediate reversion of these
State programs because of their failure to meet the January 26,
1985, deadline is not in the best interest of California, Guam, or
Nevada, this Agency, the regulated community, or the citizens of
California, Guam, or Nevada. I have found good cause to extend
the deadline for the final determination on the final authoriza-
tion applications for California, Guam, and Nevada, until
[insert appropriate date for each state and Guam]; after
that, responsibility for implementing RCRA reverts to Federal
control if they have not received final authorization.
EXECUTIVE ORDER 12291: The Office of Management and Budget
(OMB) has exempted this rule from the requirements of Section
3, Executive Order 12291.
CERTIFICATION UNDER THE REGULATORY FLEXIBILITY ACT: Pursuant
to the provision* of 5 U.S.C. 605(b), I hereby certify that
this extension will not have a significant economic impact
on a substantial number of small entities. The extension
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8
(SAMPLE NOTICE)
effectively suspends the applicability of certain Federal
regulations in favor of these States' programs, thereby
eliminating duplicative requirements for handlers of
hazardous waste in California, Guam, and Nevada. It does
not impose any new burdens on small entities. This rule,
therefore, does not require a regulatory flexibility
analysis.
LIST OF SUBJECTS IN 40 CFR PART 271: Hazardous materials,
Indian-lands, Reporting and recordkeeping requirements, Waste
treatment and disposal, Water pollution control, Water supply,
Intergovernmental relations, Penalties, Confidential business
information.
AUTHORITY: This notice is issued under the authority of Sections
2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976,
as amended, 42 U.S.C. 6912(a), 6926, and.6974.
DATED:
Judith E. Ay res
Regional Administrator
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9542.1988(01)
July 12, 1988
MEMORANDUM
SUBJECT: Notice Clarifying the Availability of Interim Status
for Facilities in Unauthorized States Handling
Radioactive Mixed Waste — Transmittal Memo
FROM: Sylvia Lowrance, Director
Office of Solid Waste
TO: J. Winston Porter
Assistant Administrator
PURPOSE
This memorandum transmits a Federal Register notice for the
Administrator's signature which extends the deadline for
facilities that treat, store or dispose of radioactive mixed
waste in unauthorized States to submit a Part A permit
application in order to qualify for interim status. The notice
also reiterates that qualification for interim status in
authorized States is a matter of authorized State law.
BACKGROUND
EPA published a Federal Register notice clarifying the
Agency's position that radioactive mixed waste is subject to
Subtitle C regulations. That notice informed authorized States
that they were required to amend their existing programs and
obtain authority to regulate the hazardous component of
radioactive mixed waste in order to maintain existing
authorizations. The notice further announced that States seeking
initial authorization after July 3, 1987 must include authority
to regulate radioactive mixed waste in their initial application.
The July 3 notice did not, however, delineate the
responsibilities of handlers of radioactive mixed waste in
unauthorized States. Because of the omission from the notice,
owners and operators of facilities that treat, store or dispose
of radioactive mixed waste in unauthorized States have been
confused about their obligations under RCRA and about the
availability of interim status for this hazardous waste activity.
This document has been retyped from the original.
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-2-
For this reason, we are extending the deadline for facilities
handling mixed waste in unauthorized States to obtain interim
status.
SCOPE OF THE NOTICE
The attached FR notice clarifies the availability of interim
status for treatment, storage and disposal facilities (TSDF's)
located in unauthorized States and extends the deadline for
owners/operators of such facilities to submit a Part A permit
application in order to qualify for interim status. The
availability of interim status for TSDF's in authorized States
has not been an issue. However, the notice does point out that
facilities in authorized States must comply with authorized State
law in order to obtain interim status. Additionally, the notice
highlights the Agency's commitment to work with the regulated
community on those aspects of the hazardous waste program which
may pose unique implementation challenges because of the nature
of the radioactive constituent of some mixed wastes.
EXPECTED REACTIONS
RCRA's applicability to mixed waste has been controversial
and challenged by many segments of the regulated community.
However, EPA clarified its position that these wastes were indeed
subject to hazardous waste regulations as previously indicated,
by notice in the FR of July 3, 1986. Likewise, the Department of
Energy (DOE) embraced the EPA position in its final definition of
byproduct material which was published in the FR on May 1, 1987.
As a result, DOE and other Federal facilities have been working
aggressively to comply with RCRA regulations and no adverse
reaction is anticipated from them following issuance of the
notice.
Unlike Federal facilities, the nuclear power industry has
been confused about the implications of the attached notice.
They believe its issuance will now subject them to hazardous
waste regulations. However, this notice extends the date for
submittal of the Part A permit application whereby TSDF's may
continue handling mixed waste in compliance with the law. This
confusion by the utilities may stem from their belief that the
EPA/NRC approach to dual regulation of mixed waste is not in
accordance with Congressional intent. Moreover, the utilities
contend dual regulation is duplicative and burdensome while
affording no greater level of environmental protection than that
accomplished by sole NRC regulation. It is anticipated that the
utilities may challenge the interim status clarification notice.
This document has been retyped from the original.
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Because we anticipate this adverse response from the utilities, a
communication strategy targeting utility trade associations and
related groups has been developed and is also attached.
RECOMMENDATION
The attached notice apprises owners and operators of TSDF's
in unauthorized States of their obligations under RCRA and
extends the date for submission of a Part A permit application in
order to qualify for interim status. In the absence of this
initiative, TSDF's in unauthorized States may be required to
discontinue mixed waste management until a final RCRA permit is
issued. The attached notice has received OGC concurrence and
reflects the clarifications they requested. OWPE has also
reviewed and concurred on the interim status clarification
notice. Therefore, I recommend you transmit the notice to the
Administrator for signature.
Attachments
This document has Jbeen retyped from the original.
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9543 - ASSESSMENT
OF STATE
CAPABILITIES
Part 271
ATKl/l 104/64 Icp
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9543.00-1
October 3, 1985
MEMORANDUM
SUBJECT: Applicability of PIG-82-5 and RSI #5 on Joint
Permitting in Phase I Authorized States
FROM: Bruce R. Weddle, Director
Permits and State Programs Division (WH-563-B)
TO: Robert L. Allen, Chief
Waste Management Branch (3HW30)
Thank you for your memorandum of July 15, 1985, in which you
asked for clarification on several issues relating to permits
jointly-issued by EPA and a State with Phase I interim
authorization. This memo addresses your concerns in the same
order in which you stated them on page 2 of your memorandum.
1. You asked; What is Headquarters' definition of "nearly
identical" permits as used in PIG-82-5?
A nearly identical State permit issued by a State with Phase
I authorization would contain, at a minimum, no less stringent
State analogues to all of the provisions that the jointly-issued
Federal permit would incorporate. A State permit could contain
provisions which are more stringent than corresponding Federal
provisions and still be considered "nearly identical". State
permit provisions that are broader-in-scope than the Federal
program are not relevant in determining whether State permits are
"identical" or "nearly identical". (See PIG 84-1 for a
discussion of how to determine whether State provisions are
broader-in-scope or more stringent.)
2. You asked: Under what circumstances can Jointly—issued.
nearly identical permits be issued by a Phase I authorized State
yet be considered RCRA permits after Final Authorization?
Contrary to the approach described in #5 of PIG-82-5, we
concluded that the EPA RCRA permit should not be terminated.
While recognizing the State and Federal permits may have been
issued jointly, receipt of Phase II or final authorization does
not automatically convert the State permit into a RCRA permit.
This document has been retyped from the original.
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-2-
Rather, the State must have RCRA permitting authority at the time
of permit issuance. Thus, were the EPA permit to be terminated
prematurely, the facility would lose RCRA authority to operate.
Nevertheless, EPA can use its discretion to avoid duplicate
State and Federal efforts to enforce identical permit provisions.
That is, if the State were adequately enforcing its identical
permit, EPA would not plan to devote enforcement resources to
that facility.
Subsequent to being granted final authorization, the State
could reissue its permit as a RCRA permit or wait until the EPA
RCRA permit expires. When the State decides to issue a RCRA
permit and the State is not authorized for HSWA provisions, the
Region must determine whether and how the facility is affected by
the HSWA requirements and either issue a permit for the HSWA
provisions or a notice of its restitutional final decision that
the facility is not affected by HSWA. At the time of permit
reissuance, the HSWA provisions must be considered even though
they were not applicable when EPA issued the first permit.
3. You asked; What effect will HSWA have on the provisions of
PIG-82-5?
HSWA mandates incorporation of certain requirements and
prohibitions in all RCRA permits as of November 8, 1984. Simply,
a permit cannot be considered a RCRA permit unless it complies
with all the applicable new requirements of HSWA. A State must
be specifically authorized for provisions of HSWA to issue a RCRA
permit. Thus the policy on joint permitting stated in RSI #5
supersedes the policy of PIG 82-5. (See RCRA Reauthorization
Statutory Interpretation #5, July 1, 1985.) In relation to PIG
82-5, you will likely be issuing permits as described by
situation #4, rather than situation #5. That is, a facility will
be jointly issued a State permit and a Federal RCRA permit.
Since the facility has a Federal RCRA permit, the urgency for
State reissuance of a State RCRA permit diminishes. Unless there
are extenuating circumstances, there is no compelling reason for
a State to reissue a State permit to a facility which also has a
Federal RCRA permit prior to the expiration of that Federal
permit. This would be especially true if the previous State
permit was issued using standards and procedures equivalent to
EPA's.
This document has been retyped from the original.
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I trust that the above discussion answers your questions and
concerns relating to jointly-issued permits prior to a Phase I
State receiving final authorization.
cc: Permits Branch
State Programs Branch
RCRA Branch Chief, Region I, II, IV - X
This document has been retyped from the original.
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9543.1984(01)
December 27, 1984
MEMORANDUM
SUBJECT: Additional Guidance on RCRA State Capability
Assessments
FROM: Lee M. Thomas
Assistant Administrator (WH-562-A)
TO: Regional Administrators
Regions I - X
Your assessment of the State's capability to implement a
quality RCRA program is an important part of the process of
making a Tentative Determination to grant RCRA final
authorization. (Guidance on conducting the capability
assessments was issued on June 26.) To help ensure timely
Headquarters' concurrence on both tentative and final
determination decision packages, this memorandum provides
additional guidance on capability assessments.
Our review of the assessments indicates the need for a more
formalized process to collect the information needed to assess
the State capability. This process will ensure that program
quality/capability can be readily discerned from the decision
packages and that the packages can be processed well within the
10-day concurrence period.
Please make sure that your tentative and final determination
decision packages include the following:
1. A chart outlining specific grant commitments and State
accomplishments in the areas of permitting, compliance
monitoring and enforcement for FY 84 (suggested format
attached). A similar chart should also be updated upon
submittal of the Final Decision (and for Notices of
Tentative Decisions submitted later this year) with
respect to State commitments and accomplishments to
date in FY 85.
This document has been retyped from the original.
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2. As you know, the assessments must include an agreement
in the form of a Letter of Intent or Memorandum of
Agreement that outlines specific State and EPA actions
necessary to strengthen State program capability and
sustain a quality RCRA program over time. The Letter
of Intent or Memorandum of Agreement must include
specific schedules and/or dates for implementing both
EPA and State activities identified as necessary for
enhancing the State's RCRA program. Letters or
Memoranda which are vague or generalized are more
likely to lead to unachieved expectations and
misunderstandings. It is imperative that both we and
the State clearly understand and agree to these
specific milestones so that each program knows what is
expected. For example, if the State has not met its
inspection commitments for ground-water monitoring
facilities, the agreement should reference a schedule
identifying specific facilities to be inspected and a
timetable for completion of those inspections in the
coming year. The agreement would also specify a
timetable for the State to hire additional inspectors,
and an EPA inspection schedule that would temporarily
augment the State program and enable the State to meet
its inspection commitments.
3. Where weaknesses are found in State program areas not
identified in the grant accomplishment chart, include
specific documentation to support the findings. For
example, a State capability assessment may conclude
that the State attorney general has been slow in
processing cases referred by the program office. The
assessment would identify the specific number of cases
referred in FY 84, and the current status of those
cases at the time of the assessment (pending, filed
etc.). Corrective measures for this situation would be
addressed in the Letter of Intent or in the Memorandum
of Agreement.
I encourage you to submit drafts of your capability
assessments to Headquarters (OSW's State Programs Branch) prior
to transmitting your tentative or final determinations. By
reviewing drafts in advance, the Office of Solid Waste and the
Office of Waste Program Enforcement are able to identify and
This document has been retyped from the original.
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-3-
assist in resolving potential problem areas in the document
without being constrained by the 10-day concurrence period.
Attachment
cc: Waste Management Division Directors,
Regions I - X
This document has been retyped from the original.
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*
| UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON, D.C. 204«0
21
SOUO WASTt AND IMtRGINCv
MEMORANDUM
SUBJECT: Review of State Capability in RCRA Final
•Authorization
FROM: — *\Lee M. Thomas
Assistant Administrator (WH-562-A)
TO: Regional Administrators
Region I - X
At the? heart of the- Federal and: State- implementation of- the-
hazardous waste management program- under RCRA must be a commitment
to quality in the permits we issue, the enforcement actions we
initiate, the corrective steps we undertake, and the information
we provide to the public on program accomplishments. The States
are pivotal to the success of this effort. Our joint commitment
to quality under final authorization is critical to meeting our
mandate under the statute. Capable managers at all levels working
together toward common objectives is a prerequisite to an effective,
high quality program-
It is appropriate, therefore, to re-affirm the importance of
jointly completing with the States a detailed review of program
capability as a key component of the- final authorization process.
The enactment of State statutory authority and promulgation of
regulations, although critical steps, must be coupled with a firm
commitment to enhance- program capability to effectively implement
the- authorized State* program.
It- i« imperative* that you reach agreement with each State,
before- the> final authorization decision is made, on the steps
necessary to strengthen program capability and sustain a quality
State RCRA program over time. I am optimistic that the States will
have achieved adequate program capability to implement the RCRA
program. However, if your joint review with the State leads
you to conclude that the State does not have this capability,
you should b» prepared to recommend that the State's application
for final authorization be denied..
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The Review of State Capability
The. Region and. State- should jointly conduct a detailed
review of State- capability to identify areas that, require
strengthening. This> review should use information, gathered
in. previous reviews, or analyses, particularly the; mid-year
and. end-of-year evaluations and other activities related? to>
the> annual program* grant. The. review should address those
portions ofi. the Federal program * State has been conducting
for EPA (if under a cooperative arrangement) or in lieu of,
EPA (if they have interim authorization). In the latter
instance, more stringent State requirements may be included
if they are- part of the program- authorized by EPA- Areas of
a State-1 s program broader in scope- than the Federal program
are- not part of the- authorized program and need not be included
in the review.
The? review- must be- broad enough to isolate the issues and
need* of: both:. EPA and: the- State? to- manage* the- program: under
f inatL Stater authorizations It must: provide^ for:
0 An Assessment of the Quality of The- State's Past
Performance Under* Interim Authorization or- Cooperative
Arrangements. Areas to consider include:
- The compliance monitoring and enforcement program
under interim authorization or cooperative arrange-
ments, including an analysis of the number and
thoroughness of inspections, the number, type and
timeliness- ot enforcement actions, and the- improve-
ment shown- by the- State in bringing violators
into compliance.
- The permitting program under interim authorization
or cooperative arrangements, including the number
and types of permit actions handled, conformance
to. technical and. procedural requirements, and
future? permitting, strategy.
— State? program- management, including resources, skill
mix, State organization, institutional constraints
(organization, salary rate, etc.), training needs,
legal support, and timeliness for filling vacancies.
Even when such areas cannot be directly influenced
by EPA. or the State program (e.g., salaries) they
should be noted.
* The- Identification of State and EPA Actions Which Will
Be> Taken To Ensure? State Capabilities*. The* action*
should& ;
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Define resource levels, skill mix, training needs
an<± other factors necessary to address management
issues- raised in- the assessment, of. past performance.
— Address* tirer level, of Regional involvement in: direct
.. activities: after final; authorization, and the fora
andr content off oversight and assistance over time.
- Recognize the value of flexible State management
approaches and* where appropriate, account for State
institutional constraints or other unique features
that determine the font of. the authorized program.
Use of• The Review- In Final Authorization Process.
The joint review of State capability should take place as
early in the final authorization process as. possible, most
appropriately; before* the* draft, application* i& submitted, to EPA..
The? Memorandum: ofr Agreement (MOA) or* art equivalent document
(e.g., joint letter ofr intent) should, reflect, agreement on the
responsibilities of both- EPA. andr the State in sustaining program-
quality over time* Through the- MOA, the Regions and States
should agree to use the program grant process to annually (or
more frequently) identify and commit to specific actions required
to strengthen the State program. The specific commitments and
associated resource impact should be incorporated into the State's
grant work, program-
To. facilitate? the> final authorization- decision, your Action.
Memorandum, transmitting the Federal Register Notice of Tentative
Decision (or Final Decision- if State is later in the authorization
process) must: (a) describe- the major aspects of past State perform-
ance relevant to State capability under final authorization, (b)
outline the steps, agreed to by the Region and State to enhance
program; capability, and. (c) include- a statement that affirms that
these actions; will result in. the implementation of a quality RCRA
programs. A* stated* before?*, if: you conclude front your- review* that
a State* doe* not: have? the capability ta implement the RCRA program,
then you. should recommend that the State's application be denied.
Timely completion of the review is critical to demonstrate
that proper consideration has been given to identifying and
resolving State capability questions prior to the decision on
final authorization. Because we have already received several
draft and. official applications*, the following schedule should
be followed::
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For States which have not yet submitted an official
application*, the capability assessment should be>
addressed: in the» Action Memorandum £oc tentative
decision-
EOJC States wnicix hav.e> submitted. an. official, applica-
tion the: assessment should? also b« addressed (where- •
possible?} ia the* Action. Memorandum foe tentative* )
decision* ffowever,. if it is too late in the review
process to permit this, the assessment should be
addressed: in. the* Action Memorandum- for final
determination- °
In no case? is the review of State capability to be completed later
than the final Action Memorandum and Federal Register Notice of
Final Decision-
know,, r nave* e&tabrlishedr a* joint: Region/State? task, force-
to- consider- thes- question? off RCRft program* quality.. The* outputs from-
this* task-, fore* will provide* more* specifier guidance- and policy on
criteria* tec be* used: ire evaluating: program- performance- under final
State* authorization- We? do- not expect, to issue- the- final policy on
RCSA program- quality until April, 1984. However, to the extent
feasible you may wish to use the- criteria developed by the task
force- to assist you in performing the State capability reviews
outlined above. The criteria you use- should be based on the
circumstances appropriate? to. your* situation and your experience
with; each: State*.
Support and: assistance* in completing the. reviews during the
final authorization- process; will be- provided by the Permits and
State? Programs. Division, Office- of Solid Waste. The State Programs
Branch will be developing recommended MOA language, a model Action
Memorandum- and a sampler review- of State capability to implement
the net* requirements*. This, will ber completed in spring, 1984.
ccc Regional. Sazardou* w«ste> Management. Division Directors
OSWBn Office* Director*
KirJr Sniff1,- Office of Enforcement and Compliance Monitoring
Lisa Friedman, Office of General Counsel
Bruce Weddle, Acting Director, Permits and State
Programs Division
Donald LazarchiK, President, Association of State 6
Territorial Solid Waste Management Officials
State Hazardous Waste Management Directors
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JUN 26-384
I ^
^ 3
MEMORANDUM £ .'
a z
SUBJECTS State Capability Assessment Guidance * -)
/signed/ Lee M. Thomas
PROMi Lee M, Thomas '-*£
Assistant Administrator a
••
»»
TOi Regional Administrators, Regions I - x ^
\
30
On February 21, I wrote to you explaining the importance ^
of assessing State progran capability as a key component of '-f
the final authorisation process. I asked that before you to
recowirend authorisation of a State program you work with the ^
State to evaluate its capabilities and come to an agreement
on whether action is required to strengthen those capabilities.
Several Regions requested guidance on conducting these assessments.
The attached guidance was developed after reviewing several
capability assessments and receiving comments from the Regions
on a draft guidance document.
In conducting these assessments, you should work closely
with the States to identify areas of program inadequacy and
weakness and to devise remedial measures. The basic criteria
to be used in this evaluation are the Criteria for a Quality
RCRA Program, developed jointly by EPA and the States. These
are the same criteria which will be used AS a component of
the Headquarters review of Regional activities where EPA
operates the RCRA progratr.
It should be clearly understood that this review allows
the Region and the State to take a prospective view of the
PCRA program and mutually establish capability objectives and
supporting strategies for their accomplishment. Its purpose
is not to be an impediment to final authorization unless the
Regional Adrinistrator feels the weaknesses in the State
progran are so severe that, additional tim» is needed to
a state's ability to implement rercdial measures. Through
this exercise we hop* to avoid granting final authorization
to a State only to be faced soon after with concern about
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-2-
inadequate p«rforaance and uncertainty about the criteria used
to s»easure it. Your Action Menorandur should affirm that the
remedial action* delineated in the capability assessment are
mutually agreed upon strategies which will result in a quality
PCRA program.
Support and assistance in completing the reviews will be
provided by the Ptate Programs Branch, Permits and State Programs
Division, office of Solid Waste. I recomnend that a draft of
your capability assessments be submitted to that Branch before
you seek State concurrence on corrective measures. Comments
will be provided at quickly as possible*
Attachment
cct Regional Rasardous Waste Management
Division Directors
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C. 20460
13NOV 1984
;«« CE
SOLiO WASTE AND
MEMORANDUM
SUBJECT: Placement of Capability Assessments in Authorization
File
FROM: Bruce R. weddle
Director, Permits and Sta'te
Programs Division (WH-563)
TO: Hazardous Waste Division Directors
Regions I-X
The Capability Assessments which you develop when making
tentative and final decisions on authorizing a State's hazard-
ous waste management program are an integral part of our
decision-making process. This being the case, the Office of
General Counsel has informed us that the Capability Assessment
and Letter of Intent must be included in the public record.
Therefore, when notice of the Region's decision is published
in the Federal Register, copies of these doc-ments should
be placed in your State Authorization File :>r access by the
public.
Several decisions have already been published. If the
Capability Assessment was not part of the Authorization File
at the time of publication, consult with your Office of
Regional Counsel before adding them to the F.le now.
cc: John Skinner
Truett DeGeare
Gail Cooper
ORC Team Leaders
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9545 - STATE
AUTHORIZATION
RESERVED
Part 271
ATKl/l 104/10 kp
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Land Disposal Restrictions (Part 268)
ATKl/1112/33sm
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9551 - LAND DISPOSAL
RESTRICTIONS
Subpart A
ATKl/l 104/65 kp
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9551-1986(03)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
FEBRUARY 86
1. Land Disposal Ban of Solvents
Section 3004(e) of PCRA as amended by the Hazardous and Solid Waste Amendments
of 1984 (HSWA) prohibited the land disposal of certain hazardous wastes oy
specific dates unless the Alministrator determines that the prohibition is
not required in order to protect human health and the environment for as
long as the waste remains hazardous. The first group of wastes to be affected
include "those hazardous wastes numbered F001, F002, F003, F004, and F005
in regulations promulgated by the Administrator under Section 3001 (40 CFR
261.31 (July 1, 1983)), as those regulations are in effect on July 1983."
EPA proposed regulations on January 14, 1986 (51 FJR 1602), foe the implemen-
tation of HSKA Section 3004(e). Proposed 40 CFR 268.30 addresses the prohi-
bition on land disposal of solvent wastes and lists as prohibited, with
certain exceptions, the wastes numbered F001, F002, F003, F004, and F005 as
those listings were amended and expanded to include mixtures oe blends on
December 31, 1985, (50 FR 53315). How does EPA have the authority to use
the expanded solvent listings for the prohibition when the statute specifies
that the prohibition applies to the solvent listings as the solvent listings
as they were in effect on July 1, 1983?
Section 3004(e) of RCRA as amended by HSWA specifies that tn* earliest land
disposal prohibition applies to the solvent listings as they were in effec-
on July 1, 1983. The universe of solvent wastes covered by those listings in
1983 is pirivused to be restricted from land disposal under the autno-icy of"
that section. Section 3004(g)(4) of RCRA as amended requires the Administratar
to maxe a determination concerning the prohioition on land disposal of "any
new waste identified or listed under Section 3001 after the date of enacownt"
of HSWA within six months after the date of such identification or listing.
Since the expanded solvent listings promulgated on Decemoer 31, 1985, (50 FR
53315) list new solvent blends or mixtures as hazardous wastes after the date
of enactment of HSWA (November 8, 1984), EPA is required to make a determination
concerning the prohibition on land disposal of these newly listed wastes witrur.
six months of listing. The universe of solvent wastes not covered Dy F001-5
listings on July 1, 1983, Out included in the proposed $268.30 land disposal
restrictions is proposed under the authority of S3004(g)(4) of RCRA as amended
by HSWA.
Source: Susan Bromm (202) 382-4770
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yt>
/ /* \
(m
9551.1986(07)
UNITED STATES EN'/IKu
WASHINf
.£•<• \L :-i-.TECTION AGENCY
iN, O.C. at ^oO
OFFICE OF
• QUO WASTE AND EMERGENCY RESPONSE
Mr. Klaus L. Mai
Vice President
Health, Safety & Environment
Shell Oil Company
One Shell Plaza
P.O. Box 2463
Houston, Texas 77252
Dear Mr. Mai:
Thank you for your June 19, 1986, letter supporting the
Environmental Protection Agency's (EPA's) proposed approach
to implementing the land disposal restrictions.
You expressed support for the use of risk-based methodo-
logies to implement the Congressional directives prohibiting
land disposal of hazardous waste. Specifically, you state
that EPA should incorporate risk assessment principles into
the development of technology-based regulations. Although
the Agency agrees that risk-based methodologies are an effective
tool in developing regulations to implement the hazardous
waste management program, Congressional leaders argued stronaly
that the risk-based approach, proposed by EPA, did not fulfill
the intent of the law. Rather, they argued that the statute
contains a statutory presumption against land disposal of
untreated wastes. Further, the statutory presumption places
a burden on facilities to demonstrate that continued land
disposal will not allow any untreated hazardous constituents
to migrate from the disposal site. The Agency has not yet
reached a final decision on how to interpret its statutory
authority on this issue.
The debate surrounding the land disposal ban program
has prompted a careful consideration within the Agency of
when we might best use risk-assessment for the Resource
Recovery and Conservation Act (RCRA). For example, we
concluded that risk-based methodologies are essential to
identify wastes as "hazardous" and, therefore, subject to
the RCRA Subtitle C program.
If you have questions or reguire additional information,
please contact Stephen Weil of my staff at (202) 382-4770.
Sincerely,
J. Winston Porter
Assistant Administrator
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RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
JULY 86
5. Land Disposal Prohibition
Will the EPA prohibit the land disposal of all hazardous waste?
.Section 3004(d), (e) and (g) of RCRA prohibit the land disposal of
untreated hazardous waste beyond specified dates. For the purposes
of the land disposal restrictions program, Section 3004(k)
specifically defines land disposal to include, but not be Limited
to any placement of hazardous waste in a landfill, surface impound-rent,
waste pile, injection well, land treatment facility, salt dome -"
salt bed formation, or underground rnine or cave.
Paragraphs (d), (e) and (g) do not impose an abosulte ban on the
land disposal of hazardous waste. A waste may be excluded from
the ban under the following circumstances:
(1) Vfrien wastes residues meet treatment standards established by
EPA under Section 3004(m). On January 14, 1986, EPA proposed
regulations to implement this provision at 40 CFR 268.40
(51 FR 17262).
(2) When EPA grants a site-specific variance that demonstrates
that there will be no migration of hazardous constituents
from the disposal unit for as long as the waste remains
hazardous, under Section 3004(d)(l), (e)(l) or (g)(l). On
January 14, 1986, the EPA proposed regulations to implement
this provision at 40 CFR 268.5 (51 FR 1762); and
(3) Untreated waste may be treated in a surface impoundment
under Section 3005(j)(ll) if the impoundment complies with
minimum technological requirements and if the treatment
residues which are hazardous are removed within a year of
entry. The EPA proposed regulations implementing this
provision on January 14, 1986 at 40 CFR 268.l(e) (51 FR
1760).
Sections 3004(d)(3) and (e)(3) create an exemption lasting
until November 8, 1988 for soil or debris resulting from
response actions taken under Sections 104 or 106 of CERCLA or
corrective action taken under Subtitle C of RCRA. (see
proposed 40 CFR 268.1(f)(2)).
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RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
JULY 86
Lard disposal prohibitions are effective umediately upon
prorrulgation unless EPA sets another effective date (no more
than two years beyond the statutory deadline) based on the
earliest date on which alternative protective treatment, recover/,
or disposal capacity would be available under Sections 3004(h)(2)
and (h)(4); (see proposed 40 CFR 268.4). EPA may grant up to
two, one-year, case-by-case extensions under Sections 3004(h)(3)
and (h)(4) when an applicant demonstrates that there is a
binding contractual oumutment to construct or otherwise provide
alternative capacity, but due to circumstances beyond the
control of the applicant, such alternative capacity cannot
reasonably be made available by the effective date. The procedures
for these extensions were proposed on January 14, 1986 at 40
CFR 268.4 (51 FR 17611) (see also June 24, 1986, 51 F* 22948).
Treatment standards established under Section 3004(m) can
take the form of prescribed methods of treatment, or they
can be performance standards based on concentration levels
of Appendix VIII constituents in the waste itself or in extracts
fron the wastes. EPA proposed to use technology-based levels in
conjunction with risk-based standards (screening levels) (see
51 FR 1602, January 14, 1986). Screening levels would be
based on a conprehensive modeling approach to assess potential
adverse effects to human health and the environment through
release of contaminants frcn land disposal units to ground
water, surface water, and air. However, after evaluating
comnents received on the proposed rule, EPA may consider not
using a risk-based methodology but rather to implement Section
3004(m) by solely relying on technology-based standards.
Treatment standards may be established by identifying all available
and demonstrated technologies for a waste group and evaluating
the performance of these technologies in order to identify
the best demonstrated available technology (BDAT). According to
the January proposal, BDAT are technologies that achieve the lowest
concentration of constituents in either the treatment effluent or
in the extracts from treatment residual. BOAT will only consider
treatment technologies that are found through comparative risk
assessments to not pose a greater risk than land disposal. The
EPA prefers achieving BOAT by setting performance standards
based on a concentration level associated with a technology or a
series of technologies because the resulting regulation does not
inhibit innovation or least cost compliance efforts.
If EPA fails to promulgate treatment standards for solvents
and hazardous dioxin waste addressed in Section 3004(f) by
November 8, 1986, the statute would ban the placement of all
solvent and hazardous dioxin wastes addressed in Section
3004(f) in a land disposal unit.
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UNIT£D ST.4-e$ ENVIRONMENTAL PROTECTION AGENCY .... -Q3,,
95al. i98o(
I I 1986
Mr. Ray D. Mclntosh
IDM General Products Division
Department 04C
Tucson, Arizona 85744
Dear Mr. Mclntoshi
we received your request on July 11, 1986 for an extension
of the effective date of the land disposal restrictions under the
Hazardous and Solid Waste Amendments of 19C4 (RSWA). While I
have not had the chance to review your request yet, I will
reiterate what was said both over the phone and in our meeting of
June 10th.
The request for an extension should include, at a minimum,
the following information:
* a demonstration that alternative capacity is not.
available - including a description of good faith
efforts to locate or supply treatment caoacity.
• a demonstration that the lack of capacity is beyond the
control of the applicant.
* a demonstration of a binding contractual committment to
provide sufficient permanent capacity by the end of
the extension period.
* a schedule showing when capacity will be available.
* a demonstration that waste management capacity during
the extension will be adequate and that the land disposal
facility used during the extension meets the minimum
technological requirements of suppart F section 265 and
section 265.301 or subpart F of section 264 and section
264.301 as applicable.
* certification that the information provided is accurate.
As discussed* the following information will also be helpful:
• documentation of the site
* documentation of the proposed tank system
* documentation of the current lagoons and their leak
detection and monitoring systems.
* a description of the processes and the wastes being
granted the exemption.
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At the meeting we discussed the possibility of using the
statutory exemption of section 3005(j)(ll) for treatment surface
impoundments in lieu of seeking an extension under §3004(h)(3).
You stated that this was possible but not desirable, as you did
not want to risk rupturing the liners by dredging. If you do
use section 3005(j)(ll), even for a short time, you will b«
required to dredge by the end of one year after first utilising
this exemption in order to be in compliance.
The minimum technology requirements of §3004(Q) for surface
impoundments appear to have been met at your site based on your
verbal description of the iite to Kenneth Shuster during the
July 10th meeting. We will be examining this as part of the
petition request, and will notify you immediately if this is not
the case.
From a procedural stand point, we will be notifying you of our
initial determination within a few weeks. At the same time, we
will be cotifyinq the affected states (Arizona) and publishing a
Notice in the FEDERAL REGISTER noting this initial determination,
the availability of further information, and requesting public
comment on your request. After review of the comments, the
Administrator will notify you in writing of the Agency's final
determination on your request. You will need to retain a copy of
this notice during the period of the extension and for three
years after the extension expires.
Finally, we will attempt to get all of this done by
November 8,1986.
Sincerely yours.
Stephen R. Weil
Chief
Land Disposal Restrictions Branch
ccs Eileen Claussen, EPA
Kenneth Shuster, EPA
Gregory Bone, IBM
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9551.1986(15)
September 15, 1986
MEMORANDUM
SUBJECT: Effect of Land Disposal Restrictions on Permits
FROM: Marcia E. Williams, Director
Office of Solid Waste
TO: Hazardous Waste Division Directors
Regions I-X
On or before November 8, 1986, the Agency will promulgate
regulations that will restrict the disposal of certain solvents
and dioxins that are hazardous wastes. (Note that in the absence
of such regulations a ban on the land disposal of these wastes
would automatically take effect on November 8 pursuant to the
self-implementing RCRA provision at §3004(e).) The land disposal
restrictions will apply to all land disposal facilities
regardless of any existing permit conditions.
The HSWA land disposal restrictions supersede the §270.4
provision which currently provides that compliance with a RCRA
permit constitutes compliance with Subtitle C. Therefore, the
permit does not shield the facility from the new land disposal
requirements. The Agency is in the process of amending §270.4 to
make it consistent with the self-implementing requirements of
RCRA. (See 51 FR 10715, March 28, 1986.) However, these
provisions automatically apply to permitted facilities even
without the regulatory change. In addition, there is no need to
reopen or modify the existing permits to incorporate those
provisions. The land disposal restrictions are fully enforceable
notwithstanding contrary or absent permit provisions concerning
land disposal.
Similarly, for those land disposal permits that are now
being processed it is not necessary to provide permit conditions
regarding the applicability of the land disposal restrictions
since they apply automatically. However, the Fact Sheet should
briefly describe the effect of the new requirements for the
benefit of the public and the facility owner/operator. The
following language is recommended for inclusion in the Fact
Sheet:
This document has been retyped from the original.
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"SELF-IMPLEMENTING HSWA PROVISIONS
In several instances HSWA imposes self-implementing
requirements that apply to all facilities regardless of
their current permit conditions. RCRA provisions that
supersede permit conditions include: 1) requirements that
go into effect by statute and 2) regulations promulgated
under 40 CFR Part 268 restricting the placement of hazardous
wastes in or on the land. Pursuant to this RCRA authority,
certain dioxins and solvents have been restricted from land
disposal unless treated according to specified standards.
Although the permit does not contain conditions regarding
the management of the restricted dioxin and solvent wastes,
the facility is required to comply with the standards in 40
CFR Part 268."
Once the land disposal restriction program is established,
it will be preferable to incorporate the applicable standards and
practices into the permit. This will clarify specific activities
at the facility and will provide a stronger basis for enforcing
the land disposal requirements at permitted facilities.
Please feel free to contact Frank McAlister of the Permits
Branch (FTS 382-2223) if you have any questions regarding this
matter.
cc: Hazardous Waste Branch Chiefs, Regions I-X
Bruce Weddle, OSW
Lloyd Guerci, OWPE
Carrie Wehling, OGC
This document has been retyped from the original.
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9551.1936(19
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
OCTOBER 86
1. Land Disposal Restriction Variances
A manufacturer generates a waste which will be subject to land disposal
restrictions and for which no treatment technologies have been developed
that are capable of achieving the treatment standards. The only manage-
ment method available is landfilling. Can the generator obtain a variance
fron or an extension to the effective date of the land disposal restrictions
that will be finalized November 8, 1986?
The generator has three options:
1) He may demonstrate that there will be no migration of
hazardous constituents from the disposal unit for as long
as the waste remains hazardous, per S3004(e).
•r
2) He may apply for a I year extension of the effective date
of the prohibition, per §3004(h)(3), if he meets the criteria in
§268.4(a). Essentially these criteria require that the generator
has entered into a contractual agreement either with someone to
ouild treatment capacity for him or with someone who can eventually
provide alternative capacity for the waste, but that the capacity
will not be available until some time after the effective date of
the ban. The Administrator's decision to grant an extension will
be made on a case-by-case basis. An extension may be renewed once
for an additional year.
3) He may apply for a treatibility variance, wherein the
generator proves that no treatment method for the particular
waste will achieve the §3004(m) standards specified in the
rule. The generator essentially applies for a different
performance standard for the particular waste, although it
would still be based on the performance achievable by the
application of BOAT to the particular waste. This new
option is discussed in the September 5, 1986 Federal Register
(51 FR 31787).
Source: Steve Weil (202) 382-4770
Research: Kim B. Gotwals
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9551.1936(22:
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 86
9. Variances to Ban
What are the effective dates for solvents and dioxins under the land
disposal restrictions?
IMe land disposal restrictions become effective on November 3,
1986, for all F001-FOC5 solvent wastes, with the exception of
the following wastes wnich will receive a 2-year variance that
extends the effective date for the land dispose. I restrictions
to ^vember 8, 1988:
(1) The generator of the solvent waste is a sue.1.! quantity
generator of 100-1000 Idlograms of hazardous wsste per rrcnth;
or
(2) The solvent waste is generatad from any response action
taken under sections 104 or 106 of CERGLA or any RC3A corrective
action, except where the waste is contaminated soil or debris
not subject to the provisions of this chapter uuuil jfovember 8,
198S; or
(3) The solvent waste is a solvent-vater mixture a
solvent-containing sludge, or a solvent-contaminated soil
(nen-CZRCLA or RCRA correction action) containing less than '
•™ ' '
Purtherrore, until November 3, 1988, contaninated soil or
106 r section
106 of CERCLA or a corrective action required under RCRA iav
continue to be land disposed (§268.1(c)(3)).
Finally, effective .Mavenber 3, 1988, the dioxin^ontaining
ssr,«s? fe^? a
rron land disposal (§268. 31 (a)).
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RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY 9551 . 1936 C 3)
DECEMBER 86
LAND DISPOSAL RESTRICTIONS
4. Land Disposal Definition
Hew is land disposal defined regarding the Sect-ion 2004(d! RCRA land
disposal restrictions?
Land disposal is defined to include, but not be limited to, any
placement of hazardous -waste Li a landfill, surface Impoundment,
•waste pile, injection well, land treatment facility, salt dome
formation, or underground mine or cave [Section 3004 (!<) P.CPA].
EPA also considers placement of hazardous wastes in concrete
vaults or bunkers intended for disposal purposes as methods of
waste :tenagement subject to the land disposal rasvjrictions .
riowever, EPA does not consider open detonation, which would
include open burning, as rrethods constituting land disposal and
has concluded that the land disposal restriction's program is
not applicable to open detonation and open burning
[51 FR 40580].
5. Lab Packs
Are lab packs containing wastes restricted from land disyosal included in the
land disposal restrictions?
the legislative history nor the statute indicates that
lab packs can be excluded from the land disposal restrictions
if they contain restricted wastes. If a lab pack contains
these restricted wastes, the entire lab pack is subject to the
land i_sposal restrictions [51 HI 40585].
6. Conditionally Exempt SQG Waste
Are conditionally exempt small quantity generator wastes subiect to the
"Ban"?
In the land disposal restrictions rule [51 HI 40572], the
Agency has amended §261.5 to exclude conditionally exenpt small
quantity generators from the requirements of oart 263, so long
as the generator has compiled with all acolicable provisions of
§261.5 [51 FR 40637].
Containers
Is an "empty container" which held SCRA hazardous wastes F001-F005
subject to the land disposal restrictions?
So: according to 40 CFR 261.7(a)(l) as amended [51 FR 40637],
"Any hazardous waste remaining in either (i) an empty container
(ii) an inner liner removed from an empty container, as defined
in paragraph (b) of this section, is not subject to regulation
under Parts 261 through 265, 268 (added in this role), and
Parts 270 and 124 of this chapter or to the notification
requirements of Section 3010 of RCFA. Thus, if the container
has been emptied in accordance with the applicable provisions
of §261.7(b), it is not subject to land disposal restrictions."
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9551.1986(24:
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 86
8. Storage of Restricted Wastes
When is the storage of rastricted wastes not prohibited?
In section 3004(j) of RCRA, Congress expressly prohibited the storage
of any hazardous waste restricted from land disposal "unless such
storage is solely for the purpose of the accumulation of such quantities
of hazardous 'waste as are necessary to facilitate proper recovery,
iraatment or disposal."
In the final rule (51 FR 40572, §268.5), EPA has incorporated
this language directly~Into provisions for generator accunulation
and storage by owners or operators of treatment, storage, or
disposal facilities. "The Agency believes that a storage li.-nit
of up to one year should generally provide sufficient time for
an owner/operator to accumulate sufficient quanitities to facilitate
proper recovery, treatment, or disposal of restricted hazardous
wastes while meeting the intent of Congress to prohibit long-term
storage as a means of avoiding the land disposal restrictions.
The burden is on the Agency to demonstrate that storage of
restricted waste for periods less than or equal to one year is
not in compliance with the storage provisions. The Agency also
recognizes that there may be instances where one year does not
provide sufficient time to accululate such quantities.
Therefore, the Agency will allow an owner/operator to store
restricted wastes beyond one year. Although, the owner/operator
is not required to submit any data or application to EPA, in
the event of an enforcement action, the burden of proving
compliance with §268.50(b) is on the owner/operator. The
Agency believes that this is reasonable because the record for
this rulemaking indicates that less than one year should be
sufficient. This provision does not apply to situations where
back-ups at treatment or recovery facilities, operational
difficulties, and repairs and maintenance result in additional
delays" (51 |* 40583).
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9551.1987(01)
January 20, 1987
Michael Edwards, Training Officer
GSX Chemical Services, Inc.
Post Office Box 216799
121 Executive Center Drive
Congaree Building, Suite 100
Columbia, SC 29221
Dear Mr. Edwards:
Thank you for your letter of November 25, 1986, requesting
confirmation of EPA's interpretation on several issues pertaining
to the land disposal restrictions final rule (51 FR 40572,
November 7, 1986). With a few exceptions, your interpretations
of the regulation are correct. I have addressed each issue
raised in your letter and provided the responses below:
1. "Only the RCRA and CERCLA contaminated soils are exempted
for disposal at landfills."
Congress provided a statutory exemption from the land
disposal restrictions for contaminated soil and debris
resulting from a response action taken under Section
104 or 106 of CERCLA or a corrective action under RCRA.
The exemption is in effect until November 8, 1988,
(48-months after the date of the Hazardous and Solid
Waste Amendments enactment). This exemption does not
apply solely to landfills; rather, it applies to all
units defined as land disposal in 40 CFR 268.2.
On November 7, 1986, the Agency promulgated a two-year
delay of the effective date (ending November 1988) of
the land disposal restrictions for solvent wastes from
generators of 100-1000 kilograms of hazardous waste per
month, CERCLA and RCRA corrective action solvent wastes
(except solvent-contaminated soils), and solvent wastes
containing less than 1 percent total F001-F005
solvents. In addition, the Agency granted a two-year
exemption (ending November 1988) for certain dioxin-
containing wastes, including dioxin-contaminated soils.
This document has been retyped from the original.
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-2-
2. "Federally ordered cleanups are the only ones that have the
extension for soils, State ordered cleanups are not exempt."
This is correct. Only Federally ordered cleanups under
CERCLA or RCRA are covered under the statutory
exemption.
3. "Waste collected from small quantity generators can be
collected at a TSDF and be remanifested by the TSDF and
still go to the landfill for disposal under the small
quantity generator extension."
The Agency granted a two-year exemption for spent
solvent wastes generated by small quantity generators
of 100-1000 kilograms of hazardous waste per month.
These wastes are exempt from the restrictions until
November 1988. Wastes from these generators may go to
land disposal even if collected and remanifested by a
TSDF. However, each generator of the waste must
forward a notice to the land disposal facility stating
that his waste is exempt from the restrictions (see 40
CFR 268.7 (a)(3)).
4. "The ash from the incineration of F003 waste does not
exhibit the characteristic of ignitability; so the ash is
nonhazardous. This waste can be landfilled without meeting
the CCWE standards."
— This is incorrect. According to the "derived-from"
rule in 40 CFR 261.3(c)(2)(i), any waste generated from
the treatment, storage, or disposal of hazardous waste
is a hazardous waste. Therefore, although incineration
of an F003 waste may render the waste nonignitable, the
waste remains a hazardous waste and as such the
residual is subject to the land disposal restrictions
and cannot be landfilled without meeting the treatment
standards in Table CCWE.
5. "F003 materials once changed from the ignitable state can be
landfilled. (i.e., mixing the waste with an absorbent is an
acceptable means of treatment.)"
According to the mixture rule in 40 CFR
261.3(a)(2)(iii) a mixture of a solid waste and a
hazardous waste that is listed in Subpart D solely
because it exhibits one or more of the characteristics
of hazardous waste is excluded from regulation provided
that the mixture no longer exhibits any of the
This document has been retyped from the original.
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-3-
characteristics of hazardous waste. Thus, mixing of an
F003 waste with a solid waste is an acceptable means of
treatment.
6&7. "F001-F005 waste may be stored at a TSDF for a period of one
year for the sole purpose of accumulation of such quantities
of waste to facilitate proper disposal, recovery, or
treatment."
"It will be acceptable to use the tank inventory as means of
showing disposal of F-listed material in the one year time
frame."
These two statements reflect a misconception about the
storage provision. The statute prohibits storage of
restricted wastes unless such storage is solely for the
purpose of accumulating sufficient quantities to
facilitate proper recovery, treatment, or disposal.
Therefore, according to the provisions in 40 CFR
261.50, an owner/operator may store prohibited wastes
if such storage is for the purpose defined above.
Storage is not limited to 1-year. Rather, the 1-year
period serves as a benchmark to determine who bears the
responsibility of demonstrating whether or not the
waste is being stored to accumulate sufficient
quantities to facilitate proper recovery, treatment, or
disposal. 40 CFR 268.50 (b) places the burden on the
Agency to show that wastes being stored for up to 1-
year are not being stored for reasons allowed under the
statute. Under 40 CFR 268.50(c) the owner/operator
bears the burden of showing that storage beyond 1-year
is for the reasons allowed under the statute. It
should be noted that the owner/operator is not required
to notify the Agency that wastes are being stored for
longer than 1-year.
8. "Solvent waste which is a solvent-inorganic sludge mixture
or solvent-contaminated soil (non-CERCLA or RCRA corrective
action) containing less than one percent total F001-F005
solvent constituents may be landfilled."
— This statement is correct. These wastes are subject to
the two-year extension of the effective date due to the
lack of alternative treatment capacity. After November
8, 1988, these wastes are restricted from land
disposal.
This document has been retyped from the original.
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-4-
9. "F001-F005 contaminated soils may not be removed from the
ground and be stock piled."
This is correct. F001-F005 contaminated soils (i.e.,
non-CERCLA and non-RCRA corrective action) containing
greater than 1% total F001-F005 solvents, are subject
to the November 8, 1986, effective date. Once removed
from the ground, these wastes only may be stored for
the purpose of accumulating sufficient quantities to
facilitate proper treatment, recovery, or disposal.
Such storage must be in tanks or containers. F001-F005
contaminated soils containing less than 1% total F001-
F005 solvents are subject to the two-year extension of
the effective date may be stored or disposed in or on
the land until November 8, 1988.
10. "When working with RCRA and CERCLA cleanups, it is
acceptable to assume the best scenario when determining
whether the waste is F-listed or not (i.e., do not assume a
solvent is spent)."
— The Agency recognizes that situations occur in cleanup
operations where the origin and type of waste is not
known. When such cleanups involve F001-F005
constituents, it is the Agency's policy, when
conducting Superfund cleanup operations, to consider
such wastes as listed hazardous wastes.
I trust that this letter clarifies the issues raised in your
letter. If you have additional questions, please contact me or
Jacqueline Sales of my staff at (202) 382-4770.
Sincerely,
Stephen R. Weil, Chief
Land Disposal Restrictions Branch
This document has been retyped from the original.
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i»w no ii. A fit nwn.Ln.Lii
9551.1937(04)
JANUARY 87
2. Land Disposal Restriction, Dioxins, and 90-Day Accumulation
The land .disposal restriction rule, published in the November 7,
1986 Federal Register (51 FR 40572) allows generators to store their
restricted wastes on-site beyond the 90-day limit set forth in 40
CFR 262.34 provided that the waste is being accumulated to "facilitate
proper recovery, treatment, or disposal" (40 CFR 268.50(a)(1)).
Generators of the restricted wastes are eligible for interim status
provided that they are in existence on the effective date of the new
regulations (40 CFR 270.70(a)) and the new requirements will subject
them to storage periods longer than 90 days. A generator who stores
the waste for more than 90 days must submit a Part A application no
later than 30 days after the generator becomes subject to the new
regulations (40 CFR 270.10(e)). Are generators of the restricted
dioxin wastes, which received a two year extension for ccnpliance
with land disposal restrictions, eligible for interim status and,
therefore, able to store their wastes on-site for more than 90 days
between November 8, 1986 and November 8, 1988?
No, the provision in 40 CFR 268.50(a) and under section 30C5(e),
that rnakes generators eligible to apply for interim status and
subsequently able to store their restricted waste on-sita for
longer than 90 days applies only to those generators -whose
waste is currently subject to land disposal restrictions and
who are accumulating to recover, treat, or dispose of the waste.
The dioxin generator would not yet be eligible for interim
status since he was not in existence on the date of regulatory
changes which affect his operation (RCRA (§3005(e)(1)(ii))
since the effective date of the land disposal restrictions that
applies to the dioxin waste was deferred until November 3, 1988
(40 CFR 268.31). The dioxin generator would have been eligible
for interim status for the storage of his dioxin wastes on
July 15, 1985, the effective date of the listing of the dioxin-
containing wastes. Interim Status would have to have been
applied for within 30 days after the generator became subject
to the new regulations (40 CFR 270.10(e)(1)).
If a dioxin generator did not apply for interim status pursuant
to the July 15, 1985 Dioxin Rule the generator of dioxin wastes
would not currently be eligible for interim status. The dioxin
generator could however, apply through the state or region for
a full permit as a new facility. The generator may also be
able to obtain an informal ccnpliance agreement with the state
or. region. This agreement could only be obtained if the generator
has not previously applied for interim status. It could include
enforcement orders and may grant the generator some immunities.
The specifics would have to be determined by the Regional
Administrator or the state. The dioxin generator should be
physically in compliance with applicable regulations under
40 CFR 265. He should also notify the state or region of his
activities and submit a Part A Permit Application. Although he
could not technically obtain interim status, the proper steps
should be taken to show a "good faith effort" on his part. The
compliance agreement with EPA, or other authority, could include
promises not to enforce against the facility as long as all applicable
regulations were complied with.
Source: Tony Baney (202) 382-4460
Jacqueline Moya (202) 382-3122
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9551.193^(05)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
FEBRUARY 8?
4. Land Disposal Restrictions
The November 7, 1986 Federal Register (51 FR 40572), land disposal
restrictions final rule, states that the storage of hazardous*waste
which is restricted from land disposal is prohibited unless conditi-j.-.s
are met under §268.50.
A generator has interim status to store waste on-site. The generator
•wants to store his waste for up to one year to accumulate the waste
as necessary to facilitate proper recovery, treatment and disposal
in accordance with §268.50(b) (51 FR 40572). When does the one year
'tie-gin?
Storage of restricted wastes by permitted or interim status
facilities is allowed solely for the purpose of accumulating
sufficient quantities to facilitate proper treatment, recovery
or disposal. The one-year period acts as a bench-mark to determine
which party (EPA or the storage facility) bears the burden of
proof to demonstrate that storage is for the allowable reasons.
For storage of one year or less, the burden is on EPA to demonstrate
non-compliance. For storage more than one-year, the burden
is on the facility owner or operator to demonstrate that such
storage time is necessary. The owner/operator does not have to
notify the agency of storage for more than one year. The
burden of proof only applies in the event of an EPA inspection
or for enforcement purposes.
For a generator with interim status or a permit to store
hazardous wastes/ the one year begins on the date the waste is
first placed in the tank or container. If the generator
accumulated the waste prior to the effective date of the land
disposal restrictions final rule (51 FR 40572), the waste is
not subject to the rule. Therefore, tKe generator can store
his waste indefinitely since he has interim status to store a
hazardous waste.
The ^fovember 7, 1986 land disposal restrictions final rule
(51 FR 40572) allows generators to gain interim status if
compliance with the land disposal restrictions requires storage
for more than 90 days.
Source: Mitch Kidwell (202) 382-4805
Research: Carla Rellergert (202) 382-3112
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 95 51.1987 (06 )
\0
Lauren rf. 3rown, ?n.D.
President
JSL Scientific, Inc.
3*5 Ca-Jitolia day
San Luis Ooisco, California 93401
Dear Dr. Brown:
This letter responds to your inquiry of December 9, 1985,
to rtooert Scarberry requesting tnat the Agency grant either an
exemption fro-, the land dis*»s^l restrictions or an extension of
tne effective date of the restrictions for solvent-containim
waste qeneratsd at your facility and solidified with verniculite.
I apologize for the delay in responding to your inquiry, After
tn« new regulations *ere published the Aoency received numerous
for guidance on implementing the restrictions.
The Hazardous and Solid Waste Amendment* of 1994 do not
provide tne Agency with the flexibility to grant an extension of
tne effective date of the land disposal restrictions to qen?r-3tor5
tnat need- ti. vie to find treatment caoacity for restricted wastes.
However, if adequate treatment capacity does not exist a venerator
;r,a/ apoly for a "case-by-case extension of the effective date
iz ne nas entered into a binding contractual commitment to construct
or otherwise crovids adequate capacity. Likewise, the statute
aoes not provide a mechanise for .^rantinn *n exemption fro* the
restrictions in cases where the generator finds the cost of
treatment to be prohioitive.
I suggest that you evaluate availaole treatment alternatives,
and then cnoose the most suitable method for treating your waste.
For example, Diolo^ical treatment is an efficient method for
treating ,^any solvent-containing -.wastes. You should contact
eitner your State or EPA Regional off ice. for issistince. Jam«s
Berlow, of the EPA ^aste Treatment Brancn, can provide information
ou alternative treatment methods. He can be reached at (202)
362-7917.
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If /ou nave additional questions, you .-nay call me at (202)'
770.
Sincerely,
Jacqueline w. Sales, Chief
Regulation Development Section
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1937(0?)
MAR I ° locr7
.••!r. ii-art Jrews
N .it 10 nil Institute of Hedltn
.•idcionnl Institute or Environmental
iiealtM Services
Post Office Sox 12233
Triangle Par*, north Carolina 27709
Dre.vs:
This is in resoonse to yo'.ir January 30, 1997, letter
•'.nere you rejj?st clarification of GSX's leqal authority tn
retire qanirstoro to clarify that wastes shijo«?-J to its
s-inewooa facility do not contain restricted wastes.
According to tne land disposal restrictions fin*l rule,
ouolisnej Movenoer 1, 1986 (Sl'pR 40572), generators are
reu-iirea to detcr'nine if their wastes ^re restricted frorr>
disposal. \s you correctly state in your letter, generator*?
'••axt ssni a notice witn each snit>-ient of rer^tricto^ wastes.
;.ne notice iust include the ?.?\ hazardous wa«?te number, the
corresoondina treatment standard, the manifest number associated
witn t.ie snipment of the :vaste, and tne waste analysis data,
wner-2 avail^ole. >vhon it is determined that the restricted
waste can oe land cispose-j without further trestnent, generators
.T.U.SC send a certification, (signet by an authorized reoresenta*: we)
to tne land disposal facility according to the orovisinns in
*>^63. 7(a ) (2 ) (ii ). \s you ooint out, tne Isnd disposal restriction?
•Jo not require generators to certify to either treatrant or
disoos^l facilities that their wastes do not contain restricted
nazardoas wastes. However, it must be noted that>^ disposal
facilities have tho ultimate resoonsiblity to verifv chit
only restricted -wastes wnich reet the applicable treatment
standards are land disposed. There is nbthina in the lan^
disposal restrictions which pronibits a treator or disposer
sucn as GSX from imposing more strinaent reaui renents.
I nope this letter adequately addresses your concerns. If
you have Questions, you «nay contact me or Jacqueline Sales
of ,.iy staff (202) 382-4770.
Sinceroly,
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9551.1937(09)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MARCH 87
Land Disposal Restrict-ions-Califomia Wfrste
A generator produces two separate liquid hazardous waste streams;
one 'waste stream contains 8,000 ppm nalogenated organic compounds,
and the other waste stream contains 25,000 ppm halogenated organic
ccrpounds. After the effective date of the Und disposal restrictions,
(July 1, 1987), may these waste streams be land disposed?
According to the Agency's proposed rule, the waste stream
containing 8,000 ppm halogenated organic conpounda will be
prohibited from land disposal effective July 8, 1987. The
waste stream containing 25,000 ppm halogenated organic compounds
will be prohibited from land disposal effective July 8, 1989.
Section 3004 (d) of the Hazardous and Solid Waste Amendments
(HSWA) requires the EPA Administrator to determine whether to
prohibit hazardous waste containing greater than 1000 mgAg
(1000 ppm) halogenated organic compounds from land disposal by
July 8, 1987.
section 3004(h)(2) allows the EPA Administrator to grant a
variance from the prohibition for up to two years if adequate
treatment capacity does not exist for the waste.
The proposed rule published in the December 11, 1986 Federal
Register states that ".he best demonstrated available technology
(BDAT) for solids containing greater than 1000 mgAg (1000 ppm)
halogenated organic compounds is incineration; however, the
incinerator capacity is insufficient. Therefore, a two-year
nation-wide variance from the prohibition is granted (51 FR 44725)
Liquid hazardous waste containing greater than 1% (10,000 ppm)
halogenated organic compounds has a BEAT of incineration and is
also granted a two year nationwide variance due to a lack of
treatment capacity (51 FR 44725).
EPA has not determined a BDAT for HOC liquids containing
butweun 1000 mgAg (1000 ppm) and II (10,000 ppm) halogenated
organic compounds. The statute requires that a lack of capacity
be demonstrated in order to grant a variance. The Agency
indicated that lack of capacity cannot be demonstrated if no
3DAT is specified. As a result, the Agency proposed that the
effective date of the ban for liquid hazardous wastes containing
between 1000 mgAg (1000 ppm) and It (10,000 ppm) halogenated
organic compounds is July 8, 1987, since no variance can be
granted.
Source: Steve Weil 382-4770
Research: Randy Eicher
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UNITED STATES EMVIROHMEMTAL PROTECTION _c_ -oo-,^^
9531.i987(iO )
JUN I 2 1987
^Ln.licn Pi rages, Director
inatitut* of Chemical toasts Management
.7 JO Rhode Island Ave , ^W
ouatto 1000
Washington, D.L. ,40036
Lear wuwilen*
Your recent Letter of May 21, 198? concerning wait* analysis
requirement* raised a question about the lave! of detail required
in analyse* of incasing waste shipments. 17* is is an old problem
wnich hae surfaced again because of the original language in
j26j.7(c) of- the Land disposal restrict lone role published on
November 7, 1966. I believe that your specific concerns over
the testing required under the land disposal restrictions rale
will be addressed by correction* ia the regulations soon to 'be
in the federal Register.
The correction notice foe the land disposal restrictions
rui-i modifies) the language in the rule dueling with waete analysis
requirement* for disposal fkciliti.ee receiving wastes subject to
restrictions under $268. The originel rule (|268.7(c)) required
th« owner/operator to "obtain waste analysis data through testing
or the waste to de-tenaine the* the wastes are in- compliance with
tne applicable treatment standards in 5268. 41." As the preamble
to the correction notion explain** the original rule incorrectly
irati-ad thaft Land disposal facilitie*- have an obligation to teat
:«tcn incominf ship*»ne>. ev*n if tasr generator or treatment facility
a«xs provided th* rl1*gn*>L facility with da«» indicating that the
incominy wae>s* m***, mnm, ausatment standard*.
I'he cJM*BJH*JMd mia> require* that testing to assure wastes
vXtlr tcea^ment standard* must be performed
frequency specified in th* facility's waste
ee7ttired by 1264.13 or $2»3.13.w Therefore,
testing o*? *m*m> sttlpment 1* not neceeearily required, enclosed
you will Mm*" a copy of th* correction notice as it will appear
in me federal Usejistsr.
to -ntsring into un agreement to accept hazardous
•..astnb Erom a gsnsrstor or treatnsnt facility, the owner/operator
o: an off-site disposal facility must obtain a detailed listing
of waste constituents. While the frequency of comprehensive
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- 2 -
t;ng will depend upon the variability of the vast* stream,
*h* Agency recommem-s that a detailed analysis for the waste
constituents regulated under the land disposal restrictions rule
•^e corTl-tod at least annually ty the generator or treater (see
51 iR 4059C, November 7, 1966). If the owner/operator cf the
disposal -acility docs not Deceive such information in writing,
.\e luust perform the analysis to determine whether the wastes meet
treatoieut stanuarcs according to the waste analysis plan.
The Agency has issued guidance that discusses the general
vabt ' analysis requirements 01 §264.13 (see Waste Analysis Flan
guidance hanual, September, 1984? available from GPO. "rfrcs 5-000-
OU^44-T), As §2t>4.13(a) (3) states, tha preacceptance analysis
must be repeated if the jenerating process changes, or if inspection
of incoming shipments reveals a discrepancy with the manifest.
Off-site disposal facilities are also required under $264. 13(a) (4)
tc inspect and, if necessary, analyze .ach snipment of hazardous
waste to ensure that the waste matches the specifications in the
rcaOt fust. When necessary, shipments are sampled and analyzed
for a few key parameters, i.e., a "fingerprint" analysis.
Wn*ie screening of each incoming shipment will usually
be limited to relatively simple and rapid teats, such as visual
inspection, tests for pH, density, weight, etc., the disposal
facility has a responsibility to identify any restricted wastes
that oxce-ed treatment stancards. Some flexibility is allowed
und&r }264.13(c) as to the extent of analysis necessary for «ach
br.i^ment. The netd for aacpling and analysis depends on a variety
of site-specific factors which the permit writer should consider.
Such factors includo ; the variability cf the waste; the prior
history of the waste generator's performance and reliability; the
impact of improperly trnateu waste en the vaste management process;
and frequency and extent of testing performed by the generator
or tr eater. The permit writer may require further analysis ty the
owner /operator , for example, if shipments of a highly variable
wastestrea* (e.g., iron occasional batch processes) are sent without
sufficient analysis by the generator/treater to determine if
waste constituents exceed the treatment standards.
One) strategy used by some disposal facilities to verify
data supplied by generators is a random sampling program f--r
incominf vaste shipments. In this program, the disposal facility
tox.es a "representative sample from a small percentage of incoming
waste shipments and performs a comprehensive chemical analysis.
Such a ^rogram may encourage generators ana tr eaters to prop-rly
test and treat restricted wattes.
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- 3 -
, H
rule and
regulations in
ir' *°Ur.omina letter
InUthe Regies pL
help in this matter.
that the corrections to the land restrictions
ty inherent in the general waste analysis
adequately address the concerns you raisec
. have forvarded copies of this memo and
the Hazardous Waste Division Directors
let me Xnow if I can be of any further
Sincerely,
Marcia Williams. Director
Office of Solid Waste
Enclosure
cc: Regional Division Directors
bcc. Bruce V
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UNITED STATES CT^pNMEKTAL. PROTECTION AGENCY 9551.1987(12!
M 26 1987
Mr. Robert H. Campbell
Sun Refining and Marketing
f/^m^ ^ mitt
Company
Ten Penn Center
* *• t I 1.W1111 S_ W I 1 W *•• *.
1801 Market Street
Philadelphia, Pennsylvania 19103-1699
Dear Mr. Campbell:
Thank you for your June 8, 1987, expressing your concern
regarding the Environmental Protection Agency's (EPA) regulatory
approach to land treatment, and in particular, the classification
of land treatment as land disposal.
Under the Resoruce Conservation and Recovery Act (RCRA), as
amended by the Hazardous and Solid Waste Amendments (HSWA) of
1984, land disposal is defined as including, among other things,
land treatment. Given the explicit statutory language found in
HSWA, the intent of Congress to include land treatment as land
disposal is clear. If a variance has not been granted extending
the effective date for the waste due to insufficient treatment
capacity, restricted waste may not be land treated (i.e., land
disposed) unless it meets the applicable treatment standard in 40
CFR 268 Subpart D, or has been granted a "no migration" exemption
under § 268.6.
The "no migration" exemption is based on a petition
demonstrating, to a reasonable degree of certainty, that there
will be no migration of hazardous constituents from the disposal
unit of injection zone for as long as the waste remains hazardous.
The Agency is currently developing guidance on the S 268.6 "no
migration" petition. Until EPA develops this guidance, the Agency
will evaluate such petitions on a case-by-case basis.
Thank you for your interest in this matter, and for expressing
your concerns.
Sincerely,
J. Winston Porter
Assistant Administrator
WH-562/PERLA/T.MCMANUS - 475-86\/sld/6-19-87/Control
No: AX701033/Due Date: 6-26-87/CONTROLLED CORRESPONDENCE 113
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1987(13)
: ;ss7
Mr. Donald E. Stone
Safety, P*>alth and
Environmental Manaaer
GSX Services of South Carolina, Inc.
Route 1, Dox 255
Pinewood, South Carolina 29125
Dear Mr. Stone:
This is written in resnonse to your letter o* Anril ?d, l°f>7,
requesting confirmation of an earlier nhone conversation with a
r.er.ber of my staff concemina the regulatory status of a sludne
containing 1,1,1-Trichloroethane (TCF).
As described in your letter and phone conversation, a
generator operates a surface impoundment for separatino i.r-etals
from an electroplating waste stream prior to discharging the water
to a POTW. The sludge is removed from the impoundment, dewatere'3,
and then shipped to your facility for discosal. Cher-leal anslvei*
of the Toxicity Characteristic Leaching Procedure (TCLP) extract
from Che sludge showed the presence of TCF in concentrations above
the applicable treatment standard, hut less than on*, percent. How-
ever, the generator has not used TCE for two years tuic you «ssur«»
that the TCE is a spent solvent residual from, wastes olacert in
the impoundment at least two years prior to the effective date.
The question is whether the TCE must meet the treatment standard
or whether the extension to the effective date for wastes containing
<1% total Fr>01-F005 solvent constituents would apnly.
The Agency stated in the November 7,19P6, final rule f?l rP
40572) and in the June 11, 1987, Notice of Availability of nata
(52 FP 22956), that wastes placed in storaae or land disposed
prior to th« effective date become subject to the land disposal
restriction* when removed from storage or taken out of the land.
It is at this point, (i.e., prior to treatment) that a determination
is made as to whether the waste is subject to a variance or must
be treated, to meet the applicable treatment standard. Therefore,
if the total concentration of F001-P005 solvent constituents is
less than 1% as the sludge is removed from the inooundment, the
waste is subject to the variance.
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I trust that this letter arfeouatelv addresses your concerns.
If you have any further Questions please call Mitch
ry staff, at (202) 382-4P05.
Sincerely,
Stephen K. Weil, Chief
Land Disposal Pestrictions Branch
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551.19 87( 14
JUL 16067
Mr. D. L. Erucker, Plant Manager
Taft Plant
Union Carbide Corporation
Pest Office Box 50
Kahnville, Louisiana 70057
Dear Mr. Bruckert
We have completed a preliminary review of your application
for an extension of the effective date of the California list
land disposal restrictions for corrosive wastewaters generated
at your facility. However, more information is needed before a
determination can be made to grant or deny your petition. ^is
information is necessary to demonstrate that the procedures for
a case-by-case extension to an effective date have been "met,
as specified in 5 268.5 of the November 7, 1986 final rule.
The applicant is required under $ 268.5(a)(l) to make a
good-faith effort to locate and contract with treatment, recovery,
or disposal facilities to manage his waste. Your petition indicates
that you are aware of alternative capacity for your waste. More
specific information is needed, however, to properly evaluate
this showing. Please submit the names and addresses of all
off-site facilities that have been contacted in an effort to
provide alternative capacity for your wastewater.
Paragraph (a) (2) requires a showing that the applicant has
entered into a binding contractual commitment to construct or
otherwise provide alternative treatment or disposal capacity
that meets the treatment standards specified in Subpart D. In
your application you include copies of contracts with Jacobs
Engineering and Daniel Construction Company; however, the contract
with Daniel Construction Company does not include a signature
page. We are requesting this information so that we can further
process your application.
Paragraph (a) (3) specifies that due to circumstances beyond
the applicant's control, alternative capacity cannot reasonably
be made available by the effective date. Although your aoplication
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emphasizes that due to technical and practical difficulties
alternative capacity will not be available for your waste by the
July 8, 1987, effective date, it is unclear why the project to
provide alternative capacity or to provide a neans of transporting
these wastes off-site for treatment was not initiated at an
earlier date (the regulated community has been on notice since
December 11, 1986). We are requestino that you provide an explanation
or data indicating why such Measures were not initiated in a
more timely fashion.
Your application indicates that there are interim measures
that could be implemented in the event that EPA fails to resoond
to your request for a case-by-case extension in a timely fashion.
It is necessary for FPA to evaluate these interim measures to
determine that a case-by-case extension and continued use of the
existing Regenerant Neutralization Basin (RNB) is a viabl* option
in light of existing alternatives. Please submit a technical
description of the interim measures and, if necessary, a complete
explanation of why these interim measures are not reasonably
available as a source of alternative capacity.
* *
Paragraph (a)(7) specifies that any waste manaqed in a
surface impoundment or landfill during the extension period nay
be disposed of at a facility only if each new landfill or surface
impoundment unit, each replacement of an existina landfill or
surface impoundment unit, and each lateral expansion of an existina
landfill or surface impoundment unit at the facility is in corcliance
with the minimum technological requirements of Part 265, Suhnart F
and § 265.301(a), (c), and (d) for interim status facilities. Tins
requirement applies not only to the RFB, but also to any such units
at your facility. Your application states that "COhere will be
no new surface impoundment installed, no replacement in kind
of the existing unit, nor will there be any lateral expansion
of the existing unit during the extension." To determine if
the facility itself is presently in compliance with the minimum
technological requirements for interim status facilities, we are
requesting that you submit data indicating the current status of
all other units at the facility with respect to this requirement.
We are Baking every effort to respond to your request for
an extension of the effective date as quickly as possible. The
case-by-case extension of the effective date is a rulemakino
procedure; although this process takes time, we will continue to
work with you to arrive at a suitable solution to your problem.
However, to expedite this effort, please submit your response to
the following address:
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Rhonda Craiq
U.S. Environmental Protection Aoency
Mail Code: WH-562B
401 M Street, SW
Washington, D.C. 20460
Should you have any questions reoardino this request, please
call Rhonda Craig at (202) 382-4800.
Sincerelv,
Marcia Williams
Director
Office of Solid Waste
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,Alci L-miKUNMt* fAL PROTECT ION AGENCY
9551.1937(16)
s. Patricia M. Trainer
14? South Park Street
Port ^'ashiroton, Wisconsin 53074
Dear Vs. Trainer:
In vour letter of August 12, 19^7, vou reauest**^ Aoency
guidance in clarifying the interoretation of "restricted waste"
as defined under 40 CFP Part 2f9, entitled Lard Disoosal »«»stric-
tions.
A restricted waste is a waste which is prohibited fror land
disposal by regulation, even if such prohibitions are accemranied
by a delayed effective date, or which, absent any regulatory
action by the Agency, would be orohibited frorr land disposal
by the statute.
The examole given in your letter is a California list Hm»:M
waste containing 100 mg/1 arsenic. Under Section ?fi«?.7, waste
analysis and recordkeeoing is the resconsibil ity of the "initial
Generator" to test the waste utilizing the Paint Filter tinuid
Test (PFLT) or use knowledoe of the waste to determine if the
waste is restricted from land disposal.
In your example, it is not specified whether the waste con-
taining ioo mg/1 arsenic has been treated to reach that level.
If so, certification under Section 26».7(a)(2) is reauired.
If the waste in your example contains 100 mo/1 arsenic unon
generation, prior to any treatment, Section 2*R.7(a)(2) do*>s
not apply. As a practical matter, th« Generator in your exa»"nJe
iray have to prepare a certification, even thouch it is not leoollv
reouired, in order to satisfy the land discosal facility accenting
the waste.
You should also he aware that the Aoency solicited cor»r»*»ntr
on the possibility of lowering levels of toxic metals in liouid
wastes. Were we to take this action, your waste wou?d then be
restricted and subject to all of the reouirements of Section ?fP.7
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9551.1937(19)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
SEPTEMBER 87
8. Land Disposal Restrictions - Corrosive Waste
A manufacturer generates an acidic aqueous hazardous
waste stream (D002, per 40 CFR 26.122(a)> with a pH of
1.8 in his production process. The waste is piped fron
the production area to an acid neutralization tank,
where the pH is raised to an average of 3.0. After
reatment, the waste stream is shipped off-site to a
commercial wastewater treatment plant where it LS
neutralized further and then discharged under a NPDES
permit. Must the manufacturer comply with the
requirement of 40 CFR 268.7(a)<2) to certify that the
restricted waste may be land disposed without further
treatment when he ships the waste off-s.vl*?
No. If the waste stream was hazardous solely for
the characteristic of corroi-:-.vity (40 CFR
26l.22(a)> and after treatment it do«s not exhibit
any characteristic of a hazardous waste, as
described in Subpart C of Part 261, the waste is no
longer a hazardous waste (40 CFR 261.3(d)(1)).
According to the applicability provisions set forth
in 40 CFR 268.1(a), "This part identifies hazardous
wastes that are restricted from land disposal and
defines those limited circumstances under which an
otherwise prohibited waste may continue to be land
disposed." Consequently, if the waste cannot be
identified as a hazardous waste under RCRA, then
the regulations of Part 268 do not apply, including
the certification requirement of 40 CFR
268.7(a)(2) .
Source: Mitch Kidwell (202) 382-4805
Research: Kris Andersen
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551 1987(20)
OCT 2 8 1987
Mr. James T. Bell
Manager Environmental Control
Advanced Environmental Technology Corporation
Gold Mine Road
Flander, New Jersey 07836
Dear Mr. Bell:
In your letter of October 14, 1987, you requested confirmation
in writing of the application of the land disposal restrictions
notification requirements to Advanced Environmental Technology
Corporation (AETC) as a interim status treatment, storage, and
disposal (TSD) facility. It is our understanding that your
facility stores waste generated at off-site sources and packages
that waste for treatment or disposal elsewhere.
The generator is required to determine that he is managing a
restricted waste at the point of generation through analysis or
knowledge of the waste. The Environmental Protection Agency (EPA)
has imposed certain waste analysis, notice, and recordkeeping
requirements on generators, treatment facilities and disposal
facilities. In the preamble to the final rule (51 FR 40597), the
Agency stated that testing and recordkeeping is essential to
implementation of the land disposal restrictions.
Although storage facilities were not directly referenced in 40
CFR 268.7 or the preamble, the intent reflects that these
requirements are applicable. In other words, a notification is
required when restricted waste is shipped to an off-site storage
facility.
I hope this information adequately addresses your concerns. If
you have additional questions, you may contact me at (202)
382-4770.
Sincerely,
Jim Thompson
Environmental Specialist
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551.1987(21
OCT 2 8 i987
Mr. Steven H. White
Regulatory Affairs Manager
Tricil Environmental Services Inc.
Talbott Tower, Suite 510
131 North Ludlow
Dayton, Ohio 45402
Dear Mr. White:
This letter repsonds to your request for information
regarding compliance with the California list final rule (52 FR
25760, July 8, 1987). I apologize for the delay in responding
to your correspondence.
Each of the issues raised in your letter is restated below
and followed by the appropriate response.
1. Tricil is a treatment facility and not a disposal
facility. Must generators of restricted waste notify
Tricil that their wastes are restricted?
Yes, section 268.7(a)(l) requires generators managing
restricted waste to notify the treatment facility
that the waste does not comply with treatment standards
specified in 40 CFR 268, Subpart D and all applicable
prohibitions set forth in 40 CFR 268.32 or RCRA Section
3004(d).
2. When notified that a waste is restricted, must the
generator identify the appropriate treatment method or
standard?
Yes, the generator must identify equivalent treatment
standards and all applicable prohibitions set forth in
section 268.32 or RCRA section 3004(d).
3. Can notification information be placed on the
Uniform Hazardous Waste Manifest under the section
entitled Special Handling Instructions?
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"es, the federal regulations do not prohibit it, but
review your state regulations as they may.
I hope this information adequately addresses your concerns
Please-feel free to contact Jim Thompson at (202) 382-7438 if you
have any additional questions.
Sincerely,
James A. Thompson
Environmental Specialist
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9551.1987(23
.,-, 12 1397
C-'-'iCE Cf
Mr. Richard C. Fortuna
Executive Director
Hazardous Waste Treatment Council
1440 Hew York Avenue, N.W.
Suite 310
Washington, DC 20005
Dear Mr. Fortuna:
Thank- you for your letter of October 21, 1987 regarding the
applicability of the California list land disposal prohibitions
to the practice of adding certain materials to restricted liquid
hazardous wastes solely for the purpose of rendering the wastes
nonliquid. Specifically, you requested guidance on whether the
mixing of fly ash or cement kiln dust to California list
metal-bearing or cyanide-containing wastes constitutes dilution
or an allowable method of treatment. In addition, you.inquired
about tno scneduie for promulgating requirements relating to
containerized wastes, including the regulatory status for
incorporating the use of the Liquids Release Test.
In order for a metal-bearing or cyanide-containing hazardous
waste to be subject to the Resource Conservation and Recovery
Act (RCRA) Section 3004(d) provisions, the waste must oxict in
liquid form. As indicated in the July 8, 1987 final rule, ibe
Environmental Protection Agency (EPA) believes that congress'
primary intent behind the California list prohibitions was to
eliminate the land disposal of highly toxic liquid hazardous-
wastes as a starting point (emphasis added). Ai; you are aware,
California list metal and cyanide wastes are currently subject
to the statutory prohibition levels and thus are restricted irom
land disposal unless treated to concentrations below the
prohibition levels or rendered nonliquid.
Under the land disposal restrictions program, the regulated
community is prohibited from diluting restricted wastes (a) as a
substitute for adequate treatment standards, (b) to avoid a
prohibition level for the California list wastes, and (c) to
circumvent the effective date of a prohibition on land
disposal. The Agency has noted that in many cases solidifi-
cation techniques may be considered treatment rather than
dilution. As you cited in your correspondence, solidification
techniques that produce physical or chemical changes, or
otherwise immobilize the hazardous constituents, would be
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considered appropriate treatment. in other words, the addition
of reagents (i.e., substances that take part in reactions or
processes) must aid in treatment of the nazardous waste in order
to be considered legitimate treatment. See generally 52 FR at
25778 (July 8, 1987) .
With these considerations, the addition of fly ash or cement
kiln dust to metal-bearing or cyanide-containing wastes must
contribute to immobilization of the hazardous constituents
contained in the liquid hazardous waste (through chemical
fixation.or some other reaction or process). If this
solidification technique results only in the absorption or
mixing of the hazardous constituents with these materials, the
praci. •': would constitute impermissible dilution. Where UK.-
addi: *' fly ash or cement kiln dust generates a nonliqa;d
wast* -opriauely iiiunobi lizes the hazardous constituent.!;,
the w^_ ._ be rendered nonliquid legitimately and no longer
be prohibite^ rrom land disposal (even if the constituent
concentration exceeds the prohibition levels). Ar, stated in the
July 8, 1987 final rule, however, should treatment sumUurUs bo
established tor Calitornia list metal and cyanide wastes, those
wastes will have to meet the treatment levels or be treated by
the specified technology designated as the treatment standard.
You also inquired about the time frajue for promulgating
restrictions on the disposal of containers holding liquid
hazardous wastes and free liquids. At present, the Agency is
intending to publish the final containerized liquids rule in
June 1988. An initial evaluation of the public comments on the
December 24, 1986 proposed rule and the June 24, 1987, notice of
supplemental information has been conducted. The Agency is
currently in the workgroup phase of developing a final
rulemaking. The Agency intends to include the Liquids Release-
Test to determine whether a containerized liquid treated with
absorbents would release liquids under pressure experienced in
landiills.
If I can be of any further assistance, please let me know.
Sincerely,
J. Winston Porter
Assistant Administrator
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9551.1987(24)
RCRA/SUPERFUND HOTLINE SUMMARY
NOVEMBER 87
Land Disposal Restrictions
An F001 F002 waste subject to the November 7, 1986 FR land
disposal restrictions meets the criteria for the 1% National
Variance specified in Section 268.30. In the July 8, 1987 FR.
treatment standards were set for most HOCs. F001 and F002 wastes
are also HOCs. Would the F001 F002 wastestream be subject to the
newly-promulgated HOC treatment standards even though it has been
granted a two-year variance for F001-F005 solvent wastes?
The solvent would only be subject to the treatment standards
and effective date in the November 7, 1986 rule. In 52 FR
25762, it says that "where treatment standards and
prohibition effective dates are promulgated for California
list waste constituents that are also covered under the
November 7, 1986 rule, the treatment standards and effective
dates from the prior rule apply." The general rule is that
where a constituent is subject to more than one treatment
standard, the treatment standard (and effective date) for
the more specific constituent applies. Example: the FOOl-
F005 treatment standard effective date presides because, as
a subset of the HOCs, it is more specific.
Also, for a waste where two or more treatment standards
apply because of different constituents (e.g., F001 and
lead), both would apply with respective effective dates. In
the case above mixed with lead, the F001 F002 treatment
standard and effective date would apply for the solvent
constituents (rather that the HOC standard) and would get a
variance until 11/8/88. However, the lead would be subject
to the reguirements effective 7/8/87.
Source: Mitch Kidwell (202) 382-4805
Research: Mark Janaskie
This document has been retyped from the original.
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9551.1933(0
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
APR -5
—'CE
MEMORANDUM
SUBJECT: Facility Testing Requirements and Solidification
Issues Under the Land Disposal Restrictions Rules
FROM: Sylvia K. Lowrance, DirectoryN l\ f( , ""^r^— '
Office of Solid Waste -^-""0
TO: Robert L. Duprey, Director
Hazardous Waste Management Division, 8 HWM -
Region VIII
This memo is in response to your memorandum of February 4,
1988 to Marcia Williams requesting clarification of two key
provisions of the Land Disposal Restrictions Rules. The issues
are related to the testing requirements under 40 CFR 268.7 and
the use of solidification/stabilization prior to landfill ing.
Issue 1 What are the exact testing requirements (appropriate
sampling conditions, analytical methods, frequency and
data comparisons) under 40 CFR 268.7(c) for off-site
commercial disposal facilities receiving land disposal
restricted wastes.
As you note, section 268.7 itself does not specify the
frequency of testing required for disposal facilities receiving
wastes from off-site (nor does it specify the frequency of
testing required for treatment facilities or on-site disposal
facilities). In particular, the requirements in section 268.7
only specify the frequency of testing required by generators,
treatment facilities or land disposal facilities by reference to
the facility waste analysis plan. Specifically, section 268.7(c)
requires that the owner or operator of the treatment or land
disposal facility must test the waste according to the frequency
specified in their waste analysis plan. Those plans may allow
the data to be supplied by the generator or treatment facility,
such determinations being the subject of negotiations between
the permit writer and the owner/operator during the development
of the permit.
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I would note that the December 1, 1987 Codification rule (52
FR 45788) does allow the permits to be reopened to incorporate
HSWA provisions, and this could be used to reopen and modify the
Waste Analysis Plans to require testing at a specified
frequency.
We are aware of the potential cost of testing for not on.y
the disposal facility, but also for the treatment facility and
the generator. We are also aware of the need for adequate data
for compliance monitoring and enforcement purposes. Unfor-
tunately, these factors work in opposite directions, one
indicating the need for more testing and the other the need to
minimize the testing burden. At the time the rules were
written, we felt that the individual permit writer would be in
the best situation to determine on a case by case basis the
appropriate frequency of testing that would best balance those
opposing factors while remaining in compliance with the general
parameters outlined under section 264.13 and secton 265.13.
This point is also addressed at 52 FR 21012, Col 2 (Jane 4,
1987).
Issue 2 Which wastes restricted under 40 CFR Part 268. Subpart C
may be treated at an off-site commercial facility
utilizing stabilization/solidification prior to
landfilling.
The Agency has not specified methods of treatment for
restricted wastes with the exception of PCS and most HOC wastes
under the California List (which must be incinerated). For
spent solvent and dioxin containing wastes covered by the
November 7, 1986 rule (51 FR 40572), the Agency has specified
performance standards based on a concentration of a hazardous
constituent in an extract generated using the Toxicity
Characteristic Leaching Procedure (Appendix I to 40 CFR Part
268). While the treatment standards were based on incineration
of the wastes, the rules do not prohibit stabilization/solidifi-
cation in order to meet the treatment standard. On the other
hand, we do not encourage the solidification of wastes
containing high levels of organic constituents.
California List wastes may not be placed in land disposal
facilities as liquids with concentrations exceeding the
statutory levels. With the exception of PCBs and HOCs,
stabilization/solidification may be used to treat the wastes,
converting them to a non-liquid form, after which they may be
placed in land disposal units. However, I would call your
attention to the preamble language in the final California List
rule (July 8, 1987, 51 FR 25760) on page 25778 dealing with
dilution, where we note that:
"Where such physical or chemical changes do not occur,
or where hazardous constituents (e.g., metals) are not
otherwise immobilized, "solidification" techniques may
possibly be considered dilution as a substitute for
adequate treatment within the meaning of the section
268.3 prohibition."
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While this language is not definitive, it does indicate tha-
solidification by simple absorption is not what was ir.ter.ciec.
Further, the preamble goes on to note that even where
solidification techniques are not considered dilution, the
liquids in landfills prohibitions remain applicable, and that
these provisions prohibit certain types of absorbency. The
specific document referred to is the "Statutory Interpretative
Guidance on the Placement of Bulk Liquid Hazardous Wastes in
Landfills," OSWER Policy Directive #9487.00-2A, June 11, 1986.
Your memorandum raises several other issues with respect to
the use of solidification that we have tried to address below.
On page 9 of the attachment to your letter, you state
"Apparently, solidification may be an appropriate treatment
methodology for F001-F005 solvent/solid/sludge mixtures and
dilute wastewater HOCs (and F020-F028 dioxin wastes?)." We do
not specify the methods that are used to meet the treatment
standards. The Part 268 regulations do not prohibit solidifi-
cation for either solvents or dioxins. As noted above, we are
not advocating the solidification of wastes containing high
concentrations of organic constituents. With respect to the
dioxin containing wastes, sections 264.317, 264.343 and 265.352
all deal with special requirements for handling the F020-F023
and F026-F028 dioxin containing wastes, and to our knowledge,
there are no commercial facilities treating or disposing of
these wastes in the United States.
Dilute HOC wastewaters, on the other hand, may not be
solidified to take advantage of the two year extension of the
effective date. If at the point of initial generation (i.e.
when the waste first meets the Part 261 listing description or
first exhibits a Part 261 characteristic of a hazardous waste),
the wastewaters are greater than 1,000 mg/kg HOCs, solidifi-
cation cannot be used to make the waste a non-liquid subject to
the two year extension of the effective date. In such a case,
the July 8, 1987 effective date attaches at the point of initial
generation, and solidification can only be used if it is
"treatment" and such treatment succeeds in lowering the
concentration below the 1,000 mg/kg statutory prohibition level
(which is applicable in the case of HOCs to both liquid and
non-liquid hazardous wastes.
Section 268.41 does not require the use of the TCLP and
GC/MS. In some cases, a total waste analysis could be used for
the F001-F005 solvent to show compliance with the requirements
of section 268.41. If the results of the total waste analysis
are less than 20 times the applicable Table CCWE concentration,
then the concentration in the waste extract cannot be greater
than the Table CCWE concentration. We agree that the require-
ment in the TCLP that the waste be ground or crushed does limit
the usefulness of stabilization for organics since no physical
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or chemical reaction is likely to be occurring. This is not, IT.
our view, an unfortunate result.
If the treatment standards or statutory levels are set as
total waste concentrations, then the total waste must be
analyzed, and not just an extract developed using the TCLP.
Finally, we are not aware of any easy surrogate tests that
provide any realistic information about Table CCWE or California
List HOC constituents. TOC and TOX tests do provide an upper
limit in that if the TOC or TOX concentrations are below the
relevant standard, then the waste must pass that standard, since
the standards are based on a subset of the constituents measured
by the TOC or TOX test. However, we realize that if the results
of the tests are greater than the regulatory levels (e.g. 1,000
mg/kg HOCs), we still know nothing about the actual levels of
the constituents of concern, which may in fact be below the
concentration of concern.
If you have further questions, please contact Stephen Weil,
Chief of the Land Disposal Restrictions Branch, on FTS 382-4770.
cc. Regional Waste Management Division Directors
Steven Silverman, OGC
Bruce Potoka, OWPE
Gary Jonesi, OECM
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9551.1933(02;
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
APRIL 88
6. Dilution of Land Disposal Restricted Waste
A generator of a spent solvent, which contained one hundred percent (100%) acetone
before use, identified the waste as F003. She/he regenerates the spent solvent by
distillation, and then treats the stillbottoms in an accumulation tank by mixing them with
nonhazardous solid waste. The resulting mixture no longer exhibits the characteristic of
ignitability. According to 40 CFR Section 261.3(a)(2)(iii), the material is no longer a
hazardous waste. However, the enforcement agency considers the mixing with nonhaz-
ardous waste to be dilution, which is prohibited by Section 268.3. Would the dilution
prohibition prevent the generator from being able to mix the F003 waste with nonhaz-
ardous solid waste?
The preamble to the November 7,1986 Federal Register (51 FR4Q592) specifies that the
prohibition on dilution of wastes restricted from land disposal, found at Section 268.3,
"does not affect provisions in other EPA regulations which may allow dilution for other
purposes." Thus, if the generator's purpose in mixing the stillbottoms with nonhaz-
ardous waste is to render the mixture nonhazardous she/he is not precluded from
doing so by Section 2683. However, if the generator's purpose in mixing the waste is
to dilute the F003 waste as a substitute for adequate treatment to achieve compliance
with Part 268, Subpart D, the action is prohibited.
Source: MikePetruska (202)475-9888
Mitch Kidwell (202) 382-4805
Research: Becky Cuthbertson
Deborah McKie
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9551.1988(03;
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAY 1 3 1988 '
Dr. Paul Palmer, Ph.D.
Onscreen Directories Inc.
7345 Healdsburg Avenue
Suite 524
Sebastopol, California 95472.
Dear Dr. Palmer:
This letter is in response to your March 1, 1988 and
April 19, 1988, letters requesting an interpretation- of
40 CFR 268.7 requirements. Your letter of April 19, 1988
expresses a general frustration with EPA's seemingly meaningless
recordkeeping and certification requirements. EPA believes that
these requirements are necessary, and I will try to -explain the
rationale behind the rules.
EPA is responsible for enforcing the prohibitions on land
disposal of untreated hazardous wastes imposed by Congress. A
determination that a waste is a listed hazardous waste
(40 CFR 261.31, and 261.32) is, in general, based on how the
material is used or the process by which it was generated, not
on the .constituents in the wastes. Thus, only the original
generator can determine what the applicable waste codes are.
This information is frequently, but not always, on the
manifest. Waste codes have also been subdivided for the purpose
of setting treatment standards. The treatment, storage, or
disposal facility must be informed of the applicable standard.
In cases where no land disposal is anticipated, the notice is
still required to insure that the waste is not disposed of by a
facility not realizing that such disposal for that particular
waste is prohibited.
All restricted wastes, whether treated and disposed on
site, or sent off-site to a RCRA treatment or disposal facility
or to a non RCRA recycling facility, are subject to testing and
recordkeeping requirements. Please note that although recycling
facilities may be exempt from RCRA regulation, the wastes they
receive and the resulting residues are regulated by RCRA and are
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i it;
subject to the land disposal restrictions. vie believe that
notifications are necessary to assure that the information for
insuring compliance with the statute is available to both the
handlers of the hazardous waste and to EPA.
Certification is a necessary tool for tracking restricted
wastes from generation to final disposal. This law clearly puts
the burden on the generator to see that the waste is properly
managed and disposed of. Thus, the certification operates to
protect the generator in addition to providing EPA information
needed to efficiently enforce these regulations.
In response to the specific questions in your March 1
letter, I hope the following discussion will be helpful.
After a generator makes a determination that he is managing
a restricted waste which does not meet the appropriate
treatment standards, or where the waste does not comply with
the applicable prohibitions in section 268.32 or RCRA Section
3Q04(d), the generator must notify the treatment or storage
facility in writing of the appropriate treatment standards and
applicable prohibitions in section 268.32 or RCRA section
3004(d). This notification must accompany each shipment of the
waste.
As a treatment and storage facility that ships restricted
wastes off-site for further management, you must comply with the
notice requirements applicable to generators in section
268.7(a)(l). You must also comply with the manifest
requirements of section 264.71(c) or section 265.7l(c).
In the case of the operator of a cement kiln receiving
restricted wastes for further management (for use as a fuel
supplement), the treatment residues from these restricted wastes
are subject to all requirements under section 268.7(b)(2), (i)
and (ii) prior to land disposal.
Your interpretation of 40 CFR 268.7 certification
requirement is correct. A certification,is required that the
waste meets the applicable treatment standards before the
restricted waste may be land disposed. When the restricted
waste is not destined for land disposal a certification is not
required. However, a written notification must accompany each
shipment of restricted waste where further management is
appropriate before land disposal.
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I hope this information adequately addrenses your coi'.ce: ::s.
If you have further questions, please feel free to contact .iin
Thompson, at (202) 382-7438.
Sincerely,
~ <^\~- "*x« j—v- -•
Sylvia K. Lowrance, Director
Office of Solid Waste
cc: Region IX
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RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY 9551.1933(04,
MAY 88
3. Land Disposal Restrictions - Manifest Requirements
The EPA regulations that prohibit land disposal of spent solvent hazardous
waste, specified in 40 CFR Section 261.31 (F001-F005), became effective on
November 8, 1986. These restricted wastes must meet applicable treatment
standards in 40 CFR Section 268.41 prior to land disposal. A two-year nationwide
variance from the effective date of the prohibition was provided to small
quantity generators of 100-1,000 kilograms of hazardous waste per month, as per
40 CFR Section 268.30(a)(l).
These small quantity generators are still required, however, to determine if their
spent solvent hazardous wastes are restricted using waste analysis test methods
described in 40 CFR Section 268.7(a). If the wastes are restricted, & notice stating
that the waste is exempt from the land disposal restrictions must be sent with the
shipment of waste to the receiving land disposal facility as per 40 CFR Section
268.7(a)(3).
At the end of the two-year nationwide variance period, (November 8, 1988) the
small quantity generator's restricted spent solvent wastes will be required to
meet the appropriate treatment standards prior to land disposal. As well, when
the restricted waste is now sent to a treatment facility prior to land disposal, the
applicable notification requirements are detailed in 40 CFR Section 268 ?(a)(l)
(i-iv).
As required by 40 CFR Section 268.7(a)(l)(iii) the notice must include the
manifest number associated with the shipment of the waste. Under certain
conditions; (in example, 40 CFR Section 262.20(e)) small quantity generators of
100-1,000 kilograms of hazardous waste are not subject to the manifest
requirements in 40 CFR Part 262, Subpart B. Specifically when the generator's
wastes are being reclaimed under a contractual agreement with ». recycling
facility. When these conditions apply and the waste shipment is a restricted
waste being sent to a treatment facility, will a manifest be required to comply
with 40 CFR Section 268.7?
When a manifest is not required to be sent with a shipment of hazardous
waste (e.g., 100-1,000 small quantity generators having their wastes reclaimed
under contractual agreement with a recycling facility as per Section 262.20(e)),
a manifest number will not be associated with those shipments of hazardous
waste. Therefore, the manifest number information that is required in the
notification requirements in 40 CFR Section 268.7(a)(l)(iii), is not applicable to
shipments of restricted hazardous waste that do not require a manifest.
Shipments of hazardous waste previously not required to have a manifest
will not become subject to manifesting solely due to information required by
the land disposal restriction regulations.
Source: Mitch Kidwell (202)382-4805
Research: George Kleevic
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9551.1933(05)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MAY 88
4. Land Disposal Restrictions - Disposal of Wastes Granted a Variance
On November 8, 1986, all spent solvent wastes (F001-F005) were prohibited from
land disposal unless those wastes met treatment standards set forth in Section
268.41. However, based on a shortage of incineration capacity, EPA granted a
two-year variance for spent solvent wastes that meet the criteria set forth in
Section 26830(a)(l-3).
According to Section 268.30(b), these wastes granted a variance may be land
disposed in a landfill or surface impoundment only if the facility is in
compliance with Section 268.5(h)(2) (minimum technological requirements).
Does this preclude land disposal of these wastes in other types of land disposal
units, such as a land treatment facility?
No, land disposal of these wastes in other types of land disposal units is not
precluded.
RCRA Section 3004(h) is the statutory authority that EPA uses to implement
Section 268.30(b). It applies only to land disposal in landfills and
impoundments, not to any other type of land disposal. The language in
RCRA Section 3004(h) is similar to that in Section 268.30(b) and states,
"Whenever another effective date (herein after referred to as a "variance") is
established..., with respect to any hazardous waste during the period for
which such variance or extension is in effect such hazardous waste may be
disposed in a landfill or surface impoundment only if such a facility is in
compliance with the requirements of subsection (o)."
Section 3004(k) defines the term "land disposal" to include land treatment
facilities. Neither the RCRA statute nor the land disposal prohibition
regulations specifically prohibit the placement of these wastes in other types
of land disposal units such as land treatment facilities with the exception of
RCRA Section 3004(b). This section prohibits the placement of
noncontainerized or bulk liquids in any salt dome formation, salt bed
formation, underground mine or cave. Furthermore, RCRA Section 3004(h)
which requires all new, replacement or lateral expansion landfill or surface
impoundment units to have minimum technological standards in place,
does not require the minimum technology standards for otHer types of land
disposal units. Thus, wastes granted a variance under Section 268.30(a) may
be disposed in a land treatment facility that is not in compliance with the
minimum technology standards.
Source: Mitch Kidwell (202) 382-4805
Research: Susan Brugler
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9551.1988(07)
Mr. Kerry Bennert
Coordinator Special Projects
E.I. du Pont de Nemours & Co. (Inc.)
Medical Products Department :
331 Treble Cove Road
No. Billerica, MA. 01862
Dear Mr. Bennert:
I received your letter of April 18, 1988 in which you commented
that regulatory events limiting mixed waste disposal have impacted
your radioactive materials manufacturing operations. Specifically,
you cited as examples, the absence of disposal capacity for
"small-volume mixed waste laboratory generated (organic solvents)
materials" and lead.
As you know, EPA promulgated regulations which appeared in the
Federal Register of November 7, 1986 prohibiting land disposal of
certain spent solvent wastes unless they meet specific concentration
based treatment standards. Some solvent containing mixed wastes may
not lend themselves to incineration, the best demonstrated available
technology (BDAT) for solvent wastes. Such wastes could conceivably
be delisted and disposed in a low-level waste disposal facility
following treatment.
Enclosed is a copy of a letter to Mr. Terry Husseman, Chair,
Northwest Interstate Compact Committee which details the Agency's
position on disposal of lead. As the Husseman letter points out,
EPA has not evaluated specific containerization or encapsulation
methodologies using the EP toxicity test. Such approaches to
managing lead mixed waste may be viable in certain circumstances.
Of course, States may adopt a more stringent position with regard
to regulation of lead or any other hazardous waste. We recommend
disposal of lead in a nixed waste unit.
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- 2 -
Also, I share your concern that neither of the three existing
cor.-ercial low-level radioactive waste disposal facilities have
applied for a RCRA permit although U.S. Ecology has expressed a
strong interest in filing such an application. EPA and NRC deveicpei
a series of guidance documents last year aimed at facilitating the
State and cor.pact effort in siting and designing a low-level waste
disposal unit that could also accept mixed waste. As a regulatory
agency, EPA believes this level of involvement is consistent with its
mandate. The Agency is available to review alternate waste
management proposals developed by industry. However, until such ti-e
as disposal capacity becomes available or treatment technologies are
identified, storage, an activity which also requires a RCRA perr.it,
may be the only waste management option available to generators of
r.ixed waste.
Although mixed wastes are not subject to Federal hazardous waste
regulations until the State applies for and obtains authorization to
regulate the hazardous component of the mixed waste, State law is
applicable in the interim. The deadline for filing mixed waste
authorization applications is July of this year. You may want to
contact Paul Bedrosian, the mixed waste coordinator for EPA Region I
(617-833-1792) to discuss your concerns. Further, I will apprise you
of any future developments on management of solvent containing mixed
wastes.
Sincerely,
Bruce R. Weddle, Director
Permits and State Programs Division
cc: Paul Bedrosian, Region I
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9551.1933(03
UNITED STATES ENVIRONMENTAL PROTECTION AGENY
WASHINGTON. D.C. 20460
JUN ! 6 1988
Subject: Land Ban Issues
From: Sylvia K. Lowrance, Director
Office of Solid Waste
OF BICE of
SOLID WASTE AND EMERGENCY 1ESPC.NSE
To:
Hazardous Waste Division Directors, Regions I-X
The purpose of this memo is to alert you to a number of issues that
may arise on the Land Ban. As you know, during the period from early August
to mid-November of this year, the number of waste disposal activities
affected by the land ban will increase substantially. In August, we will issue
treatment standards for approximately 40 "P and "K" waste codes. We expect
the standards to be immediately applicable for at least 33 of these wastes;
the remaining wastes will likely be subject to a two-year capacity variance.
In November, the previously-granted capacity variances for under-1% solvent
wastewaters, soil and debris, and small quantity generator wastes will expire.
Because of a substantial increase in liquid incineration capacity, we also plan
to rescind certain of the California list capacity variances in November,
making those wastes subject to the ban earlier than expected.
Final policy decisions have not yet been made on many of these issues,
but given the short deadlines on land ban rules, we wanted to apprise the
Regions of potential issues that some facilities may face. There appear to be
several areas in which the relationship between RCRA permit activities and
aspects of the land ban program may not be well understood. In this memo, we
are highlighting seven land ban issues which could affect permitting activities
or considerations. Our intention is to alert regional permit staff to these
issues and invite you to consult with the staff of the Land Disposal
Restrictions Branch on these or any other issues.
Staff of the Land Disposal Restrictions Branch will be travelling to the
Regions near the time of promulgation of the final First Third rule to discuss
the content of the rule and any specific regional issues. In the meantime, if
you have any questions about the application of the land ban to facilities you
are dealing with, please call Barbara McGuinness or Steve Weil at FTS -
382-4770.
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1. Surface Impoundment Retrofit Waivers
After November 8,1986, a non-minimum technology surface impoundment
could not be used to treat a banned waste for which the effective date had
passed unless the impoundment had a 3005 (j)(2) or (j)(4) waiver. After
August 8,1988, "soft hammers" will apply to a number of First Third waste
codes for which we will not set treatment standards; most notably, "soft
hammers" will apply to 107 "P" and "U" waste codes and to all or part of 12 "F"
and "K" waste codes. (See Attachment 1.) Surface impoundments cannot
receive banned wastes or "soft hammer" wastes on the basis of
(j)(3) or (j)(13) waivers alone. If an impoundment has received a (j)(3) or
(j)(13) waiver and wishes to receive a banned waste or a "soft hammer" waste,
a further equivalency demonstration under 3004(o)(2) is required. In the case
of a (j)(13) impoundment which already has releases, this is likely to be a very
difficult showing.'
2. Minimum Technology Requirements During Extensions
In the April 8,1988 Notice (the "First Sixth"), we proposed to change our
interpretation of the term "facility" in 3004(h)(4). This is the section which
specifies that "facilities" receiving banned wastes during an extension of the
effective date (i.e., a national capacity variance or a case-by-case extension)
must meet minimum technology requirements. Previously, we had defined
"facility" in the broad sense of property boundaries. Thus, as long as new,
replacement or expansion units met minimum technology requirements
(MTR), banned wastes with extensions of the effective date could go to
existing, non-MTR units.
In the April proposal, we changed that interpretation to equate "facility"
with "unit" for purposes of 3004(h)(4). As a result, after the effective date of
the change (most likely November 8,1988 to avoid short- term disruptions for
surface impoundments), when banned wastes with capacity extensions are
placed in landfills or surface impoundments, those units must meet MTR.
Note that here, as in Issue 1, 3005 (j)(3) or G)(13) waivers will not
suffice unless the stricter 3004(o)(2) equivalency demonstration can also be
made.
* Note that the equivalency demonstration required as part of the (j)(13)
waiver and that required for 3004(o)(2) are quite different.
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3. Closures of Surface Impoundments
The expected closures of numerous surface impoundments over the next
several years could result in significant additional volumes of land-banned
wastes requiring treatment and disposal. At this time, EPA HQ does not have a
clear picture of how many impoundments will clean close (or require removal
of at least some accumulated material), or the time frame in which closures
will occur. As a result, it is difficult to assess whether adequate BOAT
treatment and disposal capacity will be available for these wastes.
We know of several industries likely to produce significant volumes of;
banned wastes when impoundments are closed. These include wood preservers
(K001 sludges), metal platers (F006 sludges), chemical manufacturers (F001-
005 solvent sludges). Some of these industries have expressed concern that
there will not be adequate capacity to treat wastes generated from closing
units. If this proves to be true, it may be necessary to delay closure, or to
close in place.
If you believe that a facility or industry will have a problem finding
treatment and disposal capacity for wastes from closures (particularly if
there is an indication of environmental damage that may be exacerbated by a
lengthy delay in closure or closure in place), please alert us to this situation.
4. Case-By-Case Extensions
In instances where capacity to treat banned wastes is determined to be
available (i.e., there is sufficient capacity on a national basis), but where BOAT
treatment capacity is not actually available to a specific facility, a generator
or owner/operator may apply for a case-by-case extension of the effective
date. A total of two one-year extensions may be granted.
For a successful case-by-case extension petition, the generator or owner/
operator must show that BOAT treatment is not available in fact and must
have a binding contractual commitment to build or acquire access to the
necessary capacity within the period of the extension. The first showing
cannot be based on cost or inconvenience, but rather must be based on actual
infeasibility of obtaining treatment. It must be supported by evidence that the
generator or owner/operator has attempted to obtain treatment capacity but
has been unable to do so. An example could be a facility with a very large
volume of material requiring incineration to meet BOAT. Commercial incin-
erators have rejected the material because of its volume and because the form
of the waste requires special loading and feed equipment which is not now in
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place. A case-by-case extension can be granted while the company (or a waste
treatment facility) completes construction of the needed facilities.
The Land Disposal Restrictions Branch is now preparing guidance on
case-by-case extensions; the draft guidance will be distributed to the Regions
for review and comment Please note that the review and notice processes for
case-by-case extensions will require at least four to six months. After the
deadlines, facilities must comply with BOAT treatment standards until
case-by-case extension applications are approved.
The deadline for First Third wastes is August 8,1988. Capacity variances
for three solvent waste groups (under 1-% solvent wastewaters, small quantity
generator wastes and non-soil and debris solvent wastes from RCRA and
CERCLA actions) will be subject to land disposal restrictions. Also, after
November 8, restrictions may apply to RCRA and CERCLA soil and debris, and to
many California list wastes. At this point, it is not possible to process a
case-by-case extension of the August deadline by August 8. If any facilities
plan to seek a case-by-case extension of the August deadline, they should
recognize that they will be required to comply with the standards for at least
some period while the petition is reviewed and processed. Facilities seeking
case-by-case extensions of the November 8,1988 deadlines should submit
petitions as soon as possible.
5. New Treatment Capacity Information
The May 17,1988 proposal (the "Second Sixth") contains new capacity data
from the comprehensive survey of treatment, disposal and recycling facilities.
In general, there is significantly more treatment capacity available than had
previously been assumed. This means that BOAT for most waste codes is likely
to go into effect August 8,1988, and few national capacity extensions will be
granted. In particular, there is a large amount of liquid injection incineration
capacity available at both incinerators and cement kilns and other industrial
furnaces. Also, stabilization capacity is commercially available in virtually
every area of the country; stabilization is also relatively easy to bring on line,
given the availability of materials and technology (lime or cement dust and
mixing apparatus).
There has also been a significant increase in the amount of rotary kiln and
fluidized bed combustion capacity, although incineration capacity for solids
and sludges is still considerably more limited than for liquids. We expect that
only a few of the First Third waste codes (principally the petroleum refinery
wastes) will receive a two-year capacity extension.
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6. Contaminated Soil and Debris
The May 17,1988 Notice proposed a two-year national capacity variance
for RCRA and CERCLA contaminated soil (and possibly debris) which required
solids incineration. It now appears possible that there will be adequate solids
incineration capacity and that the variance will not be finalized. If this proves
true, soil and debris contaminated by Rrst Third wastes will be required to
meet BOAT treatment standards as of August 8,1988. Soil, and debris from
Superfund and RCRA corrective actions contaminated with solvents and dioxins
or California list wastes would be required to meet BOAT treatment standards
as of November 8,1988.
Guidance on treatment of contaminated soil and debris at RCRA and
CERCLA sites will be available soon. This will include guidance on obtaining a
site-specific, administrative treatability variance in cases where the basis
for BOAT is inappropriate for soil and debris.
OSW and OERR have been working for the past few months to develop
interim treatment levels for soil and debris; the interim treatment levels are
for use during the next several years while BOAT treatment testing for soil and
debris is conducted. When a treatability variance for contaminated soil and
debris is necessary, the interim treatment levels provide guidance on the range
of constituent concentration levels that can be achieved by Well-designed and
well-operated technologies. The treatment levels were derived from Superfund
site data on constituent concentrations after treatment. Generally, several
alternative types of treatment can achieve the concentration levels within the
range.
The attached memo to Regional Superfund staff explains the purpose of
the interim levels and requests comments on the levels. We will be interested
in receiving comments from RCRA staff as well.
7. Soft Hammer Provisions
If the Agency does not set treatment standards for a First or Second
Third waste by the statutory effective date, the waste may continue to be land
disposed in a landfill or surface impoundment only if the generator has
investigated the availability of treatment capacity and certified to the
Regional Administrator that the use of the surface impoundment or landfill is
the only practical alternative to treatment currently available. Other forms of
land disposal are not affected.
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The proposed rule also allowed certification for disposal of wastes
that have been treated but for which no further "meaningful" treatment is
practically-available. This was done to allow the generators of wastes for
which treatment standards have not been set to continue to operate, as we
believe that Congress intended them to use the available treatment rather
than shut down.
Several commentors have raised concerns as to how the Agency will
define treatment. In the proposed rule, the Agency asked for comment on
how to define treatment for the purposes of the soft hammer, discussing
concepts such as requiring "meaningful" treatment, or specific percent
reductions. Owners and operators of disposal facilities tell us they will
not accept wastes if there is a chance that the RA will disallow the
certification and subject them to enforcement action. They feel that we
need a firmer definition. In the final rule, we are planning to discuss a
hierarchy of treatment technologies that should be investigated before
certification. For example, removal/reclamation is preferrable to
destruction which is preferrable to stabilization. Is this a workable
approach from your perspective? Is there a way to make this approach
even more concrete?
We are looking for ideas on how to make the certification meaningful,
and yet not bring the land disposal of all soft hammer wastes to a grinding
halt due to uncertainty regarding the criteria.
At this time, we expect to publish the First Third Final Rule around
August 8. Attachment 1 gives the expected status of all restricted wastes
(except those covered by UIC rules), assuming promulgation of the final
First Third rule by the August 8 deadline. The "Second Sixth" comment
period closes June 16,1988. It is possible that, given the short
timeframe, it may be several weeks after August 8 before the final rule is
signed and published. If this happens, the "soft hammer" goes into effect
for all non-UIC Rrst Third wastes.
As noted earlier, ail of the policy calls on these issues have not been
made. Some of those we have indicated may change. However, we wanted
to give you an early alert on these potential issues. We will keep you
posted on developments.
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Attachments
cc: RCRA Branch Chiefs, Regions I-X
RCRA Section Chiefs, Regions I-X
Bruce Weddle, PSPD
Joe Carra, WMD
Dev Barnes, CAD
Elaine Stanley, OWPE, RCRA
Jon Cannon, OWPE
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Attachment 1
Expected Status of Restricted Wastes' as of August 8,1988
1. Wastes with BOAT in Effect
Solvents and Dioxins
o Over 1-% Solvents - FO01-005 (11/8/86)
o Listed Dioxin Wastes -- F020-023 and F026-028 (11/8/86)
California List
o Liquids or Free Liquids Containing Free Cyanides (7/8/87)
o Liquids or Free Liquids Containing Arsenic, Cadmium, Chromium,
Lead, Mercury, Nickel, Selenium, Thallium (7/8/87)
o Liquids or Free Liquids Containing Corrosives with pH $ 2 (7/8/87)
o Liquids or Free Liquids Containing PCBs £. 50 ppm (7/8/87)
o Halogenated Organic Compounds: Dilute Wastewaters
il.OOOmg/1 (7/8/87)
First Third
0 F006 (8/8/88)
0 K001, 004, 008, 015, 016, 018, 019, 020, 021, 022, 024, 025, 030,
036, 037, 044, 045, 046, 047, 060, 062, 069, 073, 083, 086
(solvent washes only), 087, 099, 100, 101, 102, 103, 104, 106
(8/8/88)
2. Wastes with BOAT, with Capacity Extension in Effect
Solvents and Dioxins
o Small Quantity Generator Solvents (11/8/88)
o RCRA and CERCLA Corrective Action Wastes (11/8/88)
o RCRA and CERCLA Soil and Debris (11/8/88)
o Under 1-% Solvent Wastes (11/8/88)
California List
o Other HaJogenated Organic Compounds (11/8/88)
o RCRA and CERCLA Soil and Debris (11/8/88)
First Third
o K048, 049, 050, 051,052, 061, 071 (8/8/90)
3. No BOAT Established. "Soft Hammer in Effect
First Third
o F007,008,009,019
o K011,013,014,017,031,035,084,085,086 (solvent sludges and
wastewaters)
o First Third "PM and "U" Wastes
OtturthinUIC.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1933(09)
AUG I I 1988
Mr. James W. Walpole
Plant Manager
BP Chemicals International
Sohio Division
Ft. Amanda Road
Post Office Box 628
Lima, Ohio 45802-0628
Dear Mr. Walpole:
This letter responds to your July 19, 1988, correspondence
requesting the Environmental Protection Agency (EPA) to act on;
your case-by-case extension petition for an extension of the ;
applicable effective date of the land disposal restrictions.
This petition addresses KOll, K013, and K014 wastes, generated
at BP Chemicals International, which you want to continue
treating in a surface impoundment until November 8, 1988. We
have completed a preliminary review of your petition. However,
more information is needed before a determination can be made to
grant or deny your request. This information is necessary to
satisfy the demonstrations for a case-by-case extension of an
effective date specified in 40 CFR 268.5.
Under 40 CFR 268.5(a)(1) the petitioner is required to make
a good-faith effort to locate and contract with treatment,
recovery, or disposal facilities nationwide to manage his waste
in accordance with the land disposal restrictions. Your
application addresses off-site capacity by claiming that
off-site disposal capacity is available, but the logistics of
loading, transporting, and unloading the large volume of
wastewater prevents the use of such capacity. To satisfy this
demonstration you must also address the availability of on-site
capacity and, if the capacity is available, the feasibility of
using such capacity.
• •'
As required by 40 CFR 268.5(a)(2) the applicant must
demonstrate that there is a binding contractual commitment to
construct or otherwise provide alternative treatment, recovery,
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or disposal capacity. In your petition you give only the
signature dates for individual contracts which will provide
alternative treatment capacity. To make this showing you will
have to provide a copy of the signed contracts, which includes
the signature page. This material will be used by EPA to
determine the scope of the contracts and to verify that the
contracts have been signed.
As specified in 40 CFR 268.5(a)(4) a successful petition
must show that the capacity being constructed or otherwise
provided will be sufficient to manage the entire Quantity of
waste that is the subject of the application. Although your
petition states that the alternative capacity will have the
volume of the surface impoundment it is replacing you need to
provide numerical values for the volumes of the individual
treatment system units and the maximum flow rates that can be
accomodated by these units. This information will support your
general statement.
Under 40 CFR 268.5(a)(6) the petitioner must arrange for
adequate capacity to manage his waste during an extension period
and document in the application the location of all sites at •
which the waste will be managed. You state that the waste will
undergo physical treatment in the surface impoundment to reduce
its solids content. This treatment should be described in more
detail, and you must include the location of the surface
impoundment. Furthermore, you fail to show how and where the
solids from physical treatment are to be managed. Locations can
best be shown on a map of your facility.
To properly evaluate your petition EPA is requesting
additional information pertaining to your facility. The Agency
wants to know whether the ground water in the vicinity of the
surface impoundment is contaminated. In addition, we are
requesting a brief description of the impact of curtailing
production.
EPA is making every effort to process your case-by-case
extension petition as quickly as possible. However, this is a
rulemaking procedure which for your application has the
following minimum schedule:
middle of August receive additional infor-
mation on petition
end of August to write Federal Register
end of September notice proposing to grant
petition
beginning of October publish Federal Register
notice proposing to grant
petition
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beginning to end public comment period
of October
beginning of November write Federal Register
notice granting petition
middle of November publish Federal Register
notice granting petition
To expedite the processing of your petition, please submit the
requested information to the following address:
Ms. Barbara McGuinness
Acting Section Chief
Regulation Development Section (OS-333)
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
Should you'have any questions, please call Barbara McGuinness at
(202) 382-4800.
Sincerely,
Stephen R. Weil, Chief
Land Disposal Restrictions Branch
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9551.1935CQ,
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
SEPTEMBER 88
3. Land Disposal Restrictions - First Third
On August 17, 1988, EPA promulgated a final rule on the "first third" of listed wastes
which were banned from land disposal on August 8, 1988 (53 FR 31138). In this final
rule, the Agency did not establish treatment standards for many of the wastes that
were on the first third list, but did promulgate regulations to allow for the
continued land disposal of these wastes (Section 268.8). These so-called "soft
hammer" wastes may be land disposed until May 8, 1990, or until treatment
standards or extensions to the effective date are promulgated, whichever is later and
provided the generator of the waste complies with Section 268.8.
What must a generator of "soft hammer" waste do in order to land dispose of his
waste?
Basically, the generator must demonstrate and certify that there is no practically
available treatment that reduces toxicity or mobility of the waste and that
disposal of these wastes in a landfill or impoundment is the only practical
alternative. (Any landfill-or impoundment that receives "soft hammer" waste
must meet the minimum technological requirements of RCRA Section 3004(o),
which consists of a double liner, leachate collection system and ground water
monitoring.) If treatment is practically available, the generator must certify
that his waste is being treated by the treatment that provides the most
environmental benefit that is practically available. The residuals from
treatment of "soft hammer" waste remain "soft hammer" waste. Thus, if these
residues (e.g., incinerator ash) are disposed in a landfill or surface
impoundment unit, that unit must be in compliance with the minimum
technological requirements of Section 3004(o).
Where the generator determines that there u no pract :ally available treatment
prior to disposal, with the initial shipment of waste, the generator must submit
a copy of his demonstration/certification to the Regional Administrator and to
the receiving facility. With each subsequent shipment, only the certification is
required to be submitted, provided that the conditions being certified remain
unchanged. This paperwork trail is the same for situations where treatment
prior to disposal is practically available.
Source: Bill Fortune (202)475-6715
Research: Chris Bryant
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1933(13)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
NOVEMBER 88
4. "Soft Hammer7' Certifications /Demonstrations
On August 17, 1988, EPA promulgated a final rule on the "first third" of listed
wastes which were banned from land disposal on August 8, 1988 (53 FR 31138). In
this final rule, the Agency did not establish treatment standards for many of the
wastes that were on the first third, but did promulgate regulations to allow for
the continued land disposal of these so-called "soft hammer" wastes. Generators
of soft hammer wastes who dispose of the waste in surface impoundments or
landfills must comply with the regulations found in Section 268.8. This section
requires the generator to demonstrate and certify that there is no practically
available treatment for the waste and that disposal in a landfill or surface
impoundment is the only option. If treatment is available, the generator must
certify and demonstrate that the treatment method is the most environmentally
sound method available. These requirements also apply to the treatment
residuals of soft-hammer wastes (53 FR 31138). Also, landfill or surface
impoundments must meet minimum technology standards for double liners
and leachate collection systems.
A generator of "soft hammer" waste ships the waste to an incinerator. The
operator of the incinerator burns the waste and ;ubsequently ships the ash to a
hazardous waste landfill.
With respect to the ash that is shipped off-site from the incinerator, who is
responsible for meeting the demonstration/certification requirements of Section
268.8, the original generator of the waste or the incinerator operator?
In this situation, both are responsible. The original generator of the waste
that was sent to the incinerator would be responsible for complying with the
demonstration/ certification requirements of Section 268.8. Thus, a generator
is responsible for knowing the final disposition of the treatment residues
from his wastes. If the treatment residues are disposed of in a surface
impoundment or landfill, the original generator must comply with the
Section 268.8 requirements with respect to the shipment of that waste. The
generator is solely responsible for determining which treatment is the best
practicable and available alternative (or for certifying that no treatment is
practical or available). The operator of the incinerator would be required to
certify that the treatment of the waste had been properly accomplished.
Finally, the owner or operator of the disposal facility would be responsible for
ensuring that the treatment residuals were placed in a unit meeting
minimum technology requirements.
Source: Rhonda Craig (202) 382-4800
Research: Chris Bryant
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9551.1933(14:
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 88
2. Land Disposal Restrictions: Soils and Debris from RCRA Corrective Action
Under the land disposal restrictions, some soil and debris have national capacity
variances. Must the response action under CERCLA be pursuant to Section 104
or Section 106 of CERCLA and must the corrective action under RCRA be
pursuant to a corrective action order?
Soil and debris contaminated with wastes from the "first third" list and for
which the promulgated treatment technology is incineration have a national
capacity variance until August 8, 1990. This variance, however, applies to all
soil and debris contaminated with these wastes not just to soil and debris
generated by CERCLA or RCRA clean-up actions (53 FR 31196). In contrast,
soil and debris contaminated with solvent, dioxin, or California list wastes are
subject to a variance only if they result from an action taken under Section
104 or Section 106 of CERCLA, or a corrective action under Subtitle C of
RCRA. This variance extends to November 8, 1990. EPA, however, can use
either orders or permits to require corrective action under RCRA. The
variance is not limited to soil and debris from corrective action orders.
Source: Steve Weil (202)382-4770
Steve Silverman (202)382-7706
Research: Renee Pannebaker
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9551.1939(311
Mr. Robert H. Simmington
Senior Environmental Engineer
Niagara Plant - Waste Disposal
Occidental Chemical Corporation
P.O. Box 344
Niagara Falls, New YorJc 14302
Dear Mr. Simmington:
In response to your letter of November 28, 1988 to
Mr. William Fortune, the following information is provided to
clarify your questions about hazardous wastes containing
halogenated organic compounds (HOCs). Mr. Fortune is no longer
with the Agency, so I am responding to your letter in his place.
As correctly stated in your letter, the two-year national
capacity variance for hazardous wastes containing HOCs in
concentrations greater than 1000 ppm was rescinded in the First
Third rule (Federal Register, August 17, 1988, page 31138), with
the exception of HOC-contaminated soil and debris. Your
questions relate to the specific HOCs regulated by these
provisions. Your questions are repeated below, followed by our
response.
Question i: "The HOCs to be included in the 1000 ppm are only
those listed in the Appendix III to Part 268 - List of
Halogenated Organic Compounds Regulated Under Part 168.32, as
published in the Federal Register, Vol. 562, No. 130 on
Wednesday, July 8, 1987."
Response; As stated in your question, the Agency has limited
the California list HOC prohibition to those HOCs listed in Part
268 Appendix III, which is a finite list of constituents for
which test methods exist. In determining the concentration of
HOCs in a hazardous waste for purposes of the land disposal
restrictions, EPA has defined the HOCs that must be included in
the calculation as any compounds that have a carbon-halogen bond
and are listed in Appendix III. Therefore, those wastes
affected by the rescission of the two-year national capacity
variance for hazardous wastes containing HOCs in total
concentrations greater than or equal to 1000 rag/1 are those
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Mr. Robert. H. Simmington
January 6, 1989
Page 2
Question 2; "The land disposal restrictions only apply to
hazardous wastes that contain over the 1000 ppm HOCs (i.e.,
wastes classified as non-hazardous that contain over 1000 ppm of
these HOCs or hazardous wastes with less than 1000 ppm of these
HOCs are not restricted from land disposal)."
Response; The California list land disposal restrictions apply
to wastes that:
o Are listed as hazardous under 40 CFR Part 261; QJB
o Exhibit one or more of the characteristics of hazardous
waste identified in Part 261 (i.e., ignitability,
corrosivity, reactivity, or EP toxicity); AND
o Also contain a California list constituent.
In other 'vords, as indic5t='! in v"?'ir auestion, cne California
list: i.ind disposal resr.rictions cmy apply to wastes that are
listed or characteristic hazardous wastes and that also contain
a California list constituent in concentrations that exceed the
prohibition levels.
Your second example in question 2 mentions hazardous wastes
with less than 1000 ppm HOCs. While these wastes would not be
restricted from land disposal as California list wastes, they
might be restricted as solvent- or dioxin-containing wastes, or
as First Third wastes. These restrictions include treatment,
notification, demonstration, and certification requirements
prior to disposal (see 53 FR 31138).
Question 3r You also requested an opinion as to whether the
PCBTF Finishing Filter Soda Ash described in your "OXY
CHEM-Niagara Plant Waste Characterization Form" is now subject
to the land disposal restrictions on the basis of its HOC
content, or will be in the future due to its characteristic of
EP Toxicity for arsenic.
Response: Based on the data provided in your waste
characterization, it appears that the total concentration of
HOCs in this waste may exceed 1000 ppm (i.e., the value for
total organic halogen is 3.7 percent, or 37,000 ppm). As
indicated in the response to question 1 above, however, the HOCs
to be included in the calculation are only those listed
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9551.1989(02!
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MARCH 89
1. Mixed Waste and Land Ban
The owner/operator of a facility generates a liquid mixed
hazardous/radioactive waste. The waste contains F006 waste as well as
California list metals above the levels specified in RCRA Section 3004(dX2). Is
this waste subject to the land disposal restrictions? If so, which land disposal
restrictions apply?
According to the August 17, 1988, Federal Register (53 FR 31202), First
Third waste mixed with radioactive waste is moved to the Third Third
schedule, whether that First Third waste has a treatment standard
associated with it or not. Section 268.10 identifies F006 waste as a First
Third Waste, thus mixed waste which contains F006 will not be subject to
the land disposal restrictions until May 8, 1990. However, this action only
affects First Third wastes mixed with radioactive wastes. Mixed waste
containing spent solvents, dioxins and California list wastes or mixed
radioactive/First Third waste that also contains spent solvents, dioxins, and
California list waste (i.e., wastes prohibited under Sections 268.30, 268.31,
268.32) would still be subject to the land disposal restrictions associated with
those wastes. However, this is only true in unauthorized states or
authorized states that do not have mixed-waste authority. Therefore, mixed
waste which contains F006 and California list metal wastes must only
comply with the land disposal restrictions in Section 3004(d) of RCRA.
Sections 3004(d) states that California list metal wastes were prohibited
from land disposal as of July 8, 1987 unless the waste meets the statutory
prohibition standards in Section 3004(d)(2XB). However, if the State in
which the facility is located is authorized for the base RCRA program, and
the State has not yet received mixed waste authorization, the waste is not
considered hazardous and the land ban does not apply.
Source: Rhonda Craig (202)382-4770
Research: Kim Jennings (202)382-3112
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9551.1989(03)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MEMORANDUM
•5 V.-ST JN5 £\f-'
DEC 2.0, |9S9
SUBJECT: Applicability of the Land Disposal Restrictions to
Recycled Hazardous Wastes
FROM: Devereaux Barnes, Director'^*'
Characterization and Assessment Division
TO: Gerald M. Levy, Chief
MA Waste Management Branch
Region I
This memorandum responds to your November 9, 1989, request
for clarification concerning the applicability of the Part 268
Land Disposal Restrictions (LDR) program to recycled wastes that
are subject to the provisions of Part 266; in particular,
recyclable materials from which precious metals are reclaimed
(i.e., wastes subject to 40 CFR 261.6(a)(2)(iv) and Subpart F of
Part 266).
The requirements of Part 268 are applicable (as stated at. 40
CFR 268.l(b)) unless specifically provided otherwise in Part 261
(or in Part 268). Section 261.6(a)(2) does not specifically
provide otherwise and, therefore, the LDR requirements,
including the applicable notification, certification and
demonstrations required by the generator of a restricted
hazardous waste, are applicable to those recyclable materials
listed in section 261.6(a)(2). (For comparison, section
261.6(a)(3) does specifically provide otherwise and, therefore,
the LDR requirements do npjt apply to those wastes listed in
261.6(a)(3)).
In future rulemakings, we will consider adding "Part 268" to
the introductory paragraph of 40 CFR 261.6(a)(2), specifically
stating that "the following recyclable materials" are subject to
the LDR requirements to help clarify the applicability of Part
268. However, we have consistently maintained and believe it is
understood that such "recyclable materials" (and, in fact, all
hazardous wastes, unless specifically provided otherwise) are
(or will be) subject to the LDR requirements. For example,
Subpart C of Part 266 was specifically modified (see 53 FR at
31197, August 17, 1988) due to the LDR statutory requirement
that a hazardous waste must meet the treatment standards pricr
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- 2 -
to placement on the land. Were those recyclable materials
listed in 261.6(a)(2) not subject to Part 268, this modification
would not have been necessary.
Should you have further questions, or need more information,
please contact Andrea Mclaughlin, of my staff, at FTS 382-6946.
cc: RCRA Branch Chiefs, Regions II-X
Jim Thompson, OWPE
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9551.1989(04
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFPICE OP
SOLID WASTE AND EMERGENCY RESPONSE
JUL -6 1989
MEMORANDUM
SUBJECT:
FROM:
THRU:
TO:
Current Status of Health-Based Values for PAH's in Coke
By-Product Wastes
Susan Griffin, Ph.D.
Toxicologist
Health Assessment Section
Technical Assessment Branch (OS-331)'
Stephanie R. Irene, Ph.D.
Section Chief
Health Assessment Section
Technical Assessment Branch (OS-331)
Ron Josephson
Environmental Engineer
Listing Section
Land Disposal Restrictions Branch (OS-333)
Listed below are the PAH compounds commonly detected in coke
by-product wastes and their health-based numbers derived from
carcinogenic or non-carcinogenic endpoints. The RfD's indicate
non-carcinogenic health numbers verified by the reference dose
workgroup. The RSD's (risk specific doses) indicate carcinogenic
numbers derived from CRAVE, the cancer risk assessment
verification workgroup, or from CAG, the cancer assessment group.
The risk level for the RSD is ixio
"*
Benzo[a]pyr«ie
-Bj otjfecinogen; RSD is 8.6x10*° mg/kg/day
Benzo[a]anthracene
B, carcinogen; RSD is 3x10 mg/kg/day
(CAG profile)
(CAG profile)
-------
Benzo (b) fluoranthene
-83 carcinogen; no quantitative RSD (CAG profile)
Benzo (k) fluoranthene
-B2 carcinogen; RSD in l.lxlO'4 mg/kg/day (1985 NIOSH
RTECS
Benzo [g, h, i] perylene
-This compound was assigned an RSD equal to the RSD for
benzo[a]pyrene for the wood preserving listing.
Benzene
-A carcinogen; RSD is 3.4x10 (CRAVE
verified)
-RfD inhalation is 5.7xlO"3 mg/m3 (under review
by RfD
workgroup)
Chrysene
-C carcinogen; This compound was assigned an RSD equal to
the RSD for bnezo[a]pyrene.
(CAG profile)
Dibenzo [A, H] anthracene
-B2 carcinogen; RSD is 2.0x10 mg/kg/day (CAG profile)
Ethylbenzene
-Oral RfD IxlO"1 mg/kg/day (RfD workgroup
verified)
Indeno (l,2,3-cd) pyrene
-C carcinogen; RSD is 5.7x10 mg/kg/day (Water Quality
Criteria
Document)
2-Methyl napthalene
This compound was assigned an RfD equal to the RSD for
Indeno (1,2,3-CD) pyrene for the wood preserving listing.
2-Methyl phenol (o-cresol) (RfD workgroup
verified)
-oral RfD 5xlO"2 mg/kg/day
4-Methyl phenol (p-cresol) (RfD workgroup
verified
-oral BSD SxlO*2 mg/kg/day
Napthalene
-oral RfD 0.4 mg/kg/day (1986 Health
and
Environmental
Effects
Phenanthrene
-This compound was assigned an RfD equal to the RSD for
Indeno (1,2,3-cd) pyrene for the wood preserving listing.
-------
Phenol
-oral RfD 6xlO"1 mg/kg/day
Styrene
-oral RfD 2x10 mg/kg/day
-B2 carcinogen; oral RSD 3.3xlO"5 mg/kg/day
-Inhalation RSD is S.OxlO"5 mg/kg/day
Toluene
-oral RfD 3X10"1 mg/kg/day
-inhalation RfD 2.0 mg/m
Xylenes
-oral RfD 2.0 mg/kg/day
-inhalation RfD 3.0xlO"1 mg/m3
The following PAH's are in the process of
developed.
Acenaphthene
Acenaphthylene
Anthracene
Fluoranthene
Fluorene
2,4-dimethyl phenol
Pyrene
(RfD workgroup
verified)
(RfD workgroup
verified)
(CRAVE
verified)
(RfD workgroup
verified)
(RfD workgroup
verified)
(RfD workgroup
verified)
(RfD workgroup
verified)
having RfD values
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9551.1989(05
UNITE° STATES ENVIRONMENTA>- PROTECTION AGENCY
WASHINGTON, D.C. 20460
12 r- OFF1CEOF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Health Status of PAH's in Coke By-Product Wastes
FROM: -^Susan Griffin, Ph.D.
(j lexicologist
Health Assessment Section
Technical Assessment Branch (OS-331)
THRU: Stephanie R. Irene, Ph.D.
Section Chief - "//
Health Assessment Section / '
Technical Assessment Branch (OS-331)
TO: Ron Josephson
Environmental Engineer
Listing Section
Land Disposal Restrictions Branch (OS-333)
The following PAH's currently have RfD values or CAG
classifications.
1. Benzo[a]pyrene 50-32-8
-B2 carcinogen, no quantitative data
2. Benzene 71-43-2
A carcinogen; oral and inhalation slope factor
2.9xlO"2 ng/fcg/day
RfD inhalation 5.7xlO~3 mg/m3 (under review)
3. Ethylbenzene 100-41-4
D carcinogen
RfD oral IxlO"1 mg/lcg/day
-------
2-Methyl phenol (o-cresol) 95-48-7
No CAG data
RfD oral 5xlO~2 mg/kg/day
4-Methyl phenol (p-cresol) 106-44-5
No CAG data
RfD oral 5xlO~2 mg/kg/day
Napthalene 91-20-3
No CAG data
RfD oral 0.4 mg/kg/day
Phenol 108-95-2
No CAG data
RfD oral 6xlO-1 mg/kg/day
Styrene 100-42-5
No CAG data
RfD oral 2X10'1 mg/kg/day
Toluene 108-88-3
No CAG data
RfD oral 3X10"1 mg/kg/day
RfD inhalation 2.0 mg/m3
10. Xylene 1330-20-7
D carcinogen
RfD oral 2.0 mg/kg/day
RfD inhalation 3.0x10 1
mg/kg/day
The following PAH's are in the process of having RfD values
developed.
Acenaphthene
Acenaphthylene
Anthracene
Fluoranthene
Fluorene
2,4-dimethyl phenol
Pyrene
The following PAH's have health documents (HEEPs, Tox
Profiles, Haiard Profiles) indicating no evidence of systemic
toxicity and limited or inadequate evidence or carcinogenicity.
Benzo(b) fluoranthene
Benzo(k) fluranthene
Chyrsene
-------
Phenanthrene
Dib«nzo [A, H] Anthracene
Banzo [a] anthracene
Benzo [g,h,i] perylene
No information could be located on the following PAH's.
Indeno (1,2,3-cd) pyrene
2-methyl naphthalene
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UMII1P STATfa IHVIBOMUMfAL PiOi8LI1OHJ 9551.1989(06
MAY 3.1989
Ms. Barbara Young
Booz-Allen & Hamilton, Inc.
4330 East West Highway
Bethesda, MD 20814-4455
Dear Ms. Young:
I have received your letter of April 20, 1989 requesting
clarification on the Q. & A. associated with Ms. Barbara
McGuinness' presentation at the Environmental Compliance
Conference in San Antonio, TX on January 31, 1989.
I have enclosed the necessary corrections and
clarifications to each question. If you have further
questions, you may contact me at (202) 382-4770.
Sincerely,
Michaelle Wilson, Chief
Regulation Development Section
Enclosure
-------
Land Disposal Restrictions
Q. #1 Correct as stated.
Q. Does a facility have to certify a "soft-hammered" waste
even if it is going to an incinerator and not to a
landfill?
A. "Soft hammer certifications/demonstrations are required
only when the wastes (or residues) are disposed in a
landfill or surface impoundment. Typically, incinerator
residues are disposed in such units and a certification is
required. The owner/operator must also certify that
treatment was conducted as per the generator
certification/demonstration.
Q. Who would be responsible for providing the waste analysis
of residuals from incineration, and what sample would they
take?
A. The treatment facility would have to perform a waste
analysis before land disposal of incinerator residual
waste at the frequency indicated in the waste analysis
plan. The samples required for testing would be
incinerator ash and scrubber water.
Q. #4 ...carry the waste codes....
Q. Is waste that is sent to a recycler considered hazardous
waste?
A. This question relates to the definition of a solid waste,
not land disposal restrictions. Certain types of
recycling exclude the material from the definition of
solid waste, while others do not. See 40 CFR 261.2(c) and
(e). Also, for a more specific determination, contact the
appropriate State regulatory agency, EPA Regional office,
or the RCRA Hotline at 1-800-424-9346.
Q. If a facility sends an F-solvent waste to a recovery
facility, do they have to notify them that it is an LDR
waste?
A. Yes. Recycling is defined as treatment and is likewise
subject to the recordkeeping requirements. Typically,
solveftt recyclers generate a still bottom (that carries
the same waste codes) that must be treated to the
treatment standards prior to disposal. Recyclers are
definitely in the loop.
Q. What facilities are allowed to store waste for up to a
year if they are storing solely for the purpose of
accumulating sufficient quantities for efficient recycling
or treatment?
-------
A. One year is the rule of thumb as far as delegating
responsibilities, of the burden of proof. The rebuttable
presumption is that one year is sufficient time to store
wastes solely for the purpose of accumulating sufficient
quantities to facilitate treatment. For less than one
year, EPA bears the burden of proof that such storage is
not in compliance (i.e., not for the sole purpose allowed
by the statute). For more than one year, the burden of
proof is on the storage facility. The facility is, of
course, subject to all other regulatory requirements,
including Part B permits, interim status, or the 90-day
generator storage rule.
Answers to questions on Research Permits and Medical Waste are
correct as stated.
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UNITED STATES ENVIRONMENTAL PROTECTIOf
9551.1989(07
4 1988
Mr. James P. Ward, Chief Chemist
Omark Industries
Post Office Box 856
Lewiston, Idaho 83501
Dear Mr. Ward:
This letter is in response to your letter of July 19, 1988
requesting Environmental Protection Agency (EPA) guidance with
respect to Omark Industries generation and treatment of EPA
hazardous waste K044, a First Third restricted waste.
As you are aware, K044 was listed as hazardous waste
Because ic exhibits cne c.H. '.racterist i r or" 'reactivity". (See 40
CFR 261.23.) In your letter you indicated that after the K044
material is treated in the facility's waste water treatment
process, it ceases to exhibit reactive/explosive characteristics
and thus should not be subject to the K044 land disposal
restrictions.
The Agency has addressed this situation in 40 CFR
26l.3(a)(2)(iii) which states that if a hazardous waste is mixed
with a solid waste, the resulting mixture is also a hazardous
waste unless the hazardous waste is listed solely because it
exhibited in characteristic of hazardous waste (as is the
situation for K044). In that case, the mixture is only
considered to be a hazardous waste if it continues to exhibit
hazardous characteristics describes in 40 CFR 261.21-.24. In
the case described in your letter, the K044 no longer exhibits
the reactivity characteristic, and is therefore no longer
considered to be K044, and no longer subject to the Land
Disposal Restrictions. However, should the treated waste
exhibit one of the other hazardous characteristics (i.e.,
ignitability, corrosivity, or extraction procedure toxicity), it
must be designated as a hazardous waste.
-------
on August* fKof was^no^T^ Standard Promulgated
ability to treat the waste so thS ^ disposal" , based on the
characteristic of reac??v?ty (5? rp ^i??- lo?ger exhibited the
The treated waste generated bv nm u- ii '*August 17' 1988)-
applicable -treatmenrita^da7 ^^ therefore a^o meets the
If your have any further questions, please get bac* to me.
Sincerely,
Stephen R. Weil, Chief
Land Disposal Restrictions Branch
cc: Pat O'Flaherty, CH2M Hill
Mike Gearheard, Region X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY '
9551.1988(15)
JAN 2 I 1988
MEMORANDUM
SUBJECT: Headquarter»s Clarification of the Regulatory
Status of Drainage Water Beneath Land Treatment
* Units and Integration of the Region's Permitting
Activities with the "No Migration" Petition Program
FROM: Marcia E. Williams, Director
Office of Solid Waste
TO: Charles E. Findley, Director
Hazardous Waste Division-Region 10
This memorandum responds to your December 4, 1987,
memorandum in which you raised several issues on permitting of
land treatment units at oil refineries in Region 10.
Your first question was whether ground water which is
seasonally drained from beneath land treatment units
constitutes a hazardous waste. You concluded that the
situation is roughly analogous to situations described in the
1985 policy memorandum clarifying application of the derived
from and mixture rules to petroleum refinery wastewater
treatment systems. Based on that 1985 policy, you concluded
that the drainage water is not a hazardous waste by
definition.
While we agree that ground water pumped from beneath a land
treatment unit is not necessarily hazardous, we do not agree
that ground water contaminated with hazardous waste leachate
from a land treatment unit can be categorically deemed
non-hazardous. The 1985 policy on wastewater treatment systems
does not address releases to ground water. The regulatory
status of contaminated ground water is addressed more directly
in Marcia Williams' memorandum of November 13, 1986, which
states that ground water contaminated with hazardous waste
leachate must be managed as if it were a hazardous waste. This
applies equally to land treatment units and other RCRA units.
-------
You also questioned whether the drainage water, which is
returned to an NPDES treatment system, must be addressed in a
"no migration" petition. Under the "no migration" standard,
there can be no migration from the unit;, if the drainage water
is to be excluded from the "no migration" petition, the
petitioner must demonstrate that the drainage water is not
being contaminated by hazardous constituents migrating from the
land treatment unit. However, for a leachate collection system
that is considered part of the unit (e.g., it is above a
liner), and where leachate is pumped directly to a wastewater
treatment plant", the leachate would not be considered to be
migrating from the unit. However, any ditches or pipes used to
conduct leachate from a leachate collection system, or runoff
from the unit must meet the "no migration" standard, since
these conduits could be extensions of the unit.
With respect to your suggestion that a Part B land
'treatment demonstration can be used in lieu of a "no migration"
petition covering subsurface transport, we do not believe that
an approved Part B land treatment demonstration can replace a
"no migration" petition. Although it is true that the
subsurface transport demonstrations for the permit and the
petition are very similar, the statutory standard that must be
met for a "no migration" demonstration is more stringent. For
example, "no migration" must be demonstrated for "as long as
the waste remains hazardous," and not just for the permitted
life of the facility. Thus, a "no migration" demonstration may
have to meet a standard for a much longer time than the land
treatment demonstration. In addition, "no migration" must be
demonstrated for all media, including soil, surface water and
air. We realize that much of the information contained in a
Part B application is relevant to "no migration"
demonstrations. Thus, we have been encouraging potential
petitioners to attach a summary of all relevant Part B data
and/or specific sections of the Part B application. We are
planning to work very closely with both the Regions and the
States when reviewing "no migration" petitions, since the
permit writers can offer invaluable technical and historical
information on the site.
In response to your suggestion that a determination made
under a RCPA Facility Investigation (RFI) can replace an
evaluation of air emissions addressed in a "no migration"
petition, we do not believe that such a determination can
automatically substitute for a "no migration" demonstration.
The standard that must be met for no migration from the unit
will likely be more stringent than the demonstration required
under the RFI. We are continuing to evaluate the best way to
handle the air pathway for "no migration" demonstrations, and
propose to use health or environmentally-based exposure levels
at the edge of the unit. For the air pathway, we have not yet
defined what this will be, but one option is that the edge of
the unit be defined as the surface of the waste. In defining
the "no migration" standard the Agency must determine how this
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standard relates to the section 3004(n) standards which will
control air emissions from treatment, storage, and disposal
facilities as "may be necessary to protect human health and the
environment." Finally, RFI information may.not be available at
the time a "no migration" petition is submitted. When it is
available, it will be considered. We are encouraging the use
of all relevant site data in the "no migration" petition,
including information collected for permitting or corrective
action purposes':
In your memorandum you requested that authority to grant
"no migration" petitions be delegated to the Regional
Administrators. We are planning to propose an interpretation
of the "no migration" language in the Federal Register for
public comment. Because of the controversy surrounding the
interpretation of the "no migration" statutory language, and
the potential for changes in policy, we believe that
Headquarters should evaluate the initial set of "no migration"
petitions received, we will consider delegation to the regions
after the program is developed and initial petitions have been
evaluated to assess issues and establish precedent. Therefore,
you should advise facilities to submit petitions to the
Administrator. It would also be advisable to send a copy of
the petitions to the Assistance Branch of the Permits and State
Programs Division, which will have the lead on reviewing the
petitions. We will coordinate individual petition reviews on a
case-by-case basis. The Agency expects to receive relatively
few viable petitions. The petition approval process should not
affect the November 1988 permitting deadline, since petition
approval is not a prerequisite for Part B permit approval.
In addition, you asked Headquarters to have a staff person
devoted primarily to covering land treatment issues for the
Permit Assistance Team (PAT). We understand your concern
regarding the need for technical expertise in this subject
area. Unfortunately, we do not have the resources to assign an
individual to land treatment on a full-time basis. We will
continue to use the technical staff available, and supplement
with contractual support when necessary. If you need
assistance or wish to discuss this, please contact Elizabeth
Cotsworth on (FTS) 382-4206.
For further clarification on these issues, please contact
Stephen Weil at (FTS) 382-4770.
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9551.1990(01
I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAY 9 i2=I
OFFICE OF
SOLID WASTE AND EMERGENCY RESPQN
MEMORANDUM
SUBJECT: RCRA Waste Disposal Sites/i^ Tpie/r Potential
Association with Wet]
FROM: Sylvia K. Lowrance
Office of Solid Waste
TO: Tom Kelly, Director
Office of Regulatory Management and Evaluation
Thank you for your memorandum of April 9, 1990, in which you
discuss the need for an assessment of industrial waste disposal
facilities and their proximity to wetlands, and suggest that we
coordinate a joint effort to examine these issues.
My office also shares a serious concern that many waste
management facilities — hazardous as well as non-hazardous —
are located in sensitive locations, including wetlands. We have
several efforts underway to analyze and, where appropriate,
control the risks posed by facilities in sensitive locations,
including in or adjacent to wetlands.
First, we expect to promulgate this summer revised criteria
for municipal solid waste facilities, and a notification
requirement that will apply to industrial solid waste disposal
facilities and to construction/demolition waste landfills. The
revised criteria for municipal facilities will incorporate
location standards, under which new facilities cannot be sited in
or adjacent to wetlands unless there is no alternative, impacts
will be minimized, and any wetlands that are destroyed will be
offset by the creation of new wetlands. The notification
requirement would include information on latitude and longitude,
which would enable us to access geographic information systems
and determine proximity to sensitive locations.
Second, it is our intention to request funding to complete,
distribute and evaluate the Industrial D Survey. Completion of
the survey can occur in tandem with the notification process
described above, and distribution of the survey can be targeted
to the facilities identified in the notification process. This
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survey will provide a comprehensive view of waste types, volumes
and management practices at industrial solid waste facilities for
a large sample of facilities. When coupled with information on
proximity to sensitive locations, this information will enable us
to characterize the potential risks posed by facilities in or
adjacent to wetlands.
Another major effort is the development of location
standards for hazardous waste management facilities. In the near
future the draft proposed location standards will enter Red
Border review. Under this proposal, wetlands would be one of the
sensitive locations in which the siting of hazardous waste
facilities would be restricted.
Finally, we are initiating an effort to characterize the
market and non-market values associated with wetlands due to a
variety of functions such as flood control, water quality
improvement, spawning grounds for fisheries, and ground-water
recharge. The values generated could be useful in examining the
resource damages due to industrial solid waste facilities.
We would welcome the opportunity to discuss further with you
how to coordinate our respective efforts. My understanding is
that Ruth Miller is working with ORO/Las Vegas on the study you
are currently initiating on industrial waste disposal facilities,
and that this study will characterize the proximity of facilities
to wetlands in several states (those with the best data available
on location). My staff are reviewing and will provide specific
technical comments on the proposed effort. I anticipate that the
results of your work will support OSW's efforts to analyze and
control potential risks posed by facilities in wetlands. At this
time, I am designating Glen Galen (382-4654) to coordinate near-
term issues on the industrial waste facility study. For wetlands
issues in general, our contact is Fred Chanania, one of my
Special Assistants (382-4627). I suggest we also meet in the
near future to discuss longer-term coordination.
I look forward to a continuing discussion of these
critical issues concerning hazardous and non-hazardous facilities
located in proximity to wetlands.
cc: Loretta Marzetti
Dave Bussard
Bruce Waddle
David Davis
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UMITID'. TCS EMVTSONMEMTAL PKOTECHOM » -NCT
9551.1990(02)
August 8, 1990
William J. Ziegler
Vice President of Health,
Safety and Environmental Affairs
ThermalKEM, Inc.
454 S. Anderson Rd.
BTC532
Rock Hill, SC 29730
Dear Mr. Ziegler:
This letter responds to your request of July 12, 1990, for
clarification of the following aspects of the land disposal
restrictions rule for lab packs as published on June 1, 1990 (55
Federal Register 22520):
(1) EPA's rationale for excluding EPA Hazardous Waste Codes
P046, Pill, and U163 from Appendix IV, and
(2) whether §265.316(f) requires that fiber drums used for
disposal of lab pack waste be overpacked in steel
drums.
In response to your first question, EPA inadvertently
excluded P046, Pill, and U163 from Appendix IV. You are correct
in stating that these wastes are incinerable and should be
included in Appendix IV.
With respect to your second question, lab packs destined for
incineration in fiber drums are not required to be placed in
metal or steel containers. Paragraph (f) states that persons who
incinerate lab packs prior to landfilling "may use fiber drums in
place of metal outer containers" (emphasis added) . . . However,
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UMfTCO I TIS EHVTSOKMEMTAL PSOTECnON » .MCT
- 2 -
fiber drums used in this manner must be overpacked with inside
containers and absorbent material as described in §265.316(b).
This provision does not require the use of metal shipping
containers? however, it continues to require safe packaging and
management of lab pack waste.
I hope that this letter adequately address your concerns.
If you have additional questions, you may contact Rhonda Craig at
382-7926.
Sincerely,
Richard Kinch, Chief
Waste Treatment Branch
E COPY
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RCRA/SUPERFUND HOTLINE SUMMARY 9551.1990(03
SEPTEMBER 1990
L SIGNIFICANT QUESTIONS AND RESOLVED ISSUES—SEPTEMBER 1990
RCRA
1. Pretreatment of Characteristic Wastes Subject to Land Disposal
Restrictions
A Treatment, Storage and Disposal Facility (TSDF) receives an ignitable waste
(D001) from a generator. The waste, which is identified as a high Total
Organic Carbon (TOC) D001 has a specified technology of fuel substitution,
recovery of organics, or incineration as methods for treating the waste. Prior
to introduction to one of these technologies, the TSDF pretreats the material
by filtering or decanting the waste and separating it into a liquid and a solid
phase. The solid phase, upon testing, does not exhibit the characteristic of
ignitability. Would that portion of the waste that no longer exhibits a charac-
teristic not be subject to Subtitle C regulation and the notification/certifica-
tion requirements of Section 268.7 even though the waste was not treated by
the specified technology indicated in Section 268.42?
The noncharacteristic solid phase would no longer be regulated
under Subtitle C. EPA considers processes that separate phases of a
waste, in this case a solid and an ignitable liquid, to be recovery and
hence an acceptable form of pretreatment provided that the
remaining material that exhibits the characteristic is treated by the
required technology (June 1, 1990; 55 £E 22544). In this example, the
non-characteristic solid, assuming it is not hazardous for any other
reason, would pass from Subtitle C into Subtitle D solid waste
regulations. This would be the case for any aqueous, liquid, or solid
material which, as a result of pretreatment, no longer exhibits a
characteristic. Moreover, the notification/certification requirements
of Part 268 would not attach to the non-hazardous solid; however,
this paperwork would follow the remaining hazardous material (e.g.,
the ignitable liquid) to the treatment facility. Once the ignitable liquid
is treated and no longer exhibits the characteristic, then the
paperwork would be forwarded on to the Regional Administrator
and the remaining waste (e.g., any ash resulting from the treatment
of the liquid) sent to a Subtitle D facility per Section 268.9 (d).
Contact: Larry Rosengrant, OSW (202)382-3678
Research: Steve Baker
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551 199Q(04)
U,J
3 1990
Mr. Joseph J. Zimmerman
Sachs & Taylor
1140 Connecticut Avenue, N.W.
Washington, D.C. 20036-4002
Dear Mr. Zimmerman:*
Thank you for your recent correspondence dated August 20,
1990 concerning the prohibitions on land disposal of untreated
hazardous waste and the prospect of a "no migration" variance for
your client, Giant Industries Arizona, Inc. (Giant).
In that letter, you correctly stated that the land disposal
prohibitions become effective for refinery hazardous wastes
(K048-KO52) on November 8, 1990, after being extended from the
original effective date of August 8, 1990. You also correctly
reiterated EPA1s advisory that the processing of "no migration"^
petitions, from the date of receipt by EPA, through internal *
review, notification of any petition deficiencies, statutorily 5
mandated publication of a proposed decision in the Federal "*••
Register, and public comments, to publication of the final
decision in the Federal Register, is likely to take approximately
12-18 months. (EPA records indicate that Mr. Jim Michael of my
staff discussed this issue with Mr. John Stokes of Giant in a
December 13, 1989 telephone conversation.) Finally, your
correspondence refers to EPA's policy, where a national lack of
BDAT treatment, recovery, or disposal capacity can be
demonstrated, for granting a one-year, case-by-case extension to
the land disposal prohibition effective date, for provision of
alternative protective treatment, recovery, or disposal. (See 40
CFR 268.5.) However, you should be aware that the statutory
provisions under RCRA Section 3004(h)(3) require that the
applicant make several demonstrations, among them that a binding
'contractual commitment has been made to construct or otherwise
provide alternative treatment, recovery, or disposal capacity
that protects human health and the environment. In order to
address this requirement, the Agency has indicated that this
provision may be satisfied by a Federal Register notice wherein
the Agency proposes to grant either a "no migration" or a
treatability variance. (See 55 fE 22673-4, June 1, 1990.) The
Agency believes that once we have proposed to grant either a
treatability or "no migration" petition, the petitioner has made
a good faith effort to commit to obtaining alternative protective
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disposal capacity. In addition, the Agency's action in proposing
to grant the petition serves as a preliminary determination that
the disposal unit is protective; the mere filing of a
treatability or "no migration" petition provides no such
indication of protectiveness and thus, cannot be deemed to
satisfy the statutory requirement.
However, contrary to statements in your letter, regulations
and draft guidance on the content and evaluation criteria for "no
migration1* petitions are currently available to the public, and
have been for some time. Regulations currently exist at 40 CFR
268.6 describing the requirements for petitioning EPA to receive
a "no migration" variance. These regulations were promulgated
on November 7, 1986, and June 4, 1987, and since have been
amended on July 8, 1987 and August 17, 1988. EPA also antici-
pates proposal of another "no migration" rule in 1990 that would
further define "no migration" and would create new procedural and
substantive petition requirements. Furthermore, a draft guidance
document entitled "No Migration Variances to the Hazardous Waste
Land Disposal Prohibitions: A Guidance Manual for Petitioners"
has been available to the public upon request during the past two
years. It also is available from the National Technical Informa-
tion Service (NTIS, telephone number 703-487-4650), document
number PB90204736. EPA records indicate that Mr. Michael of my
staff responded to a January 16, 1990 request from Ms. Kim
Bullerdick of Giant for a copy of this draft guidance. A copy
of the latest draft of this guidance, dated March 1990, also is
attached for your convenience.
EPA recognizes the situation land disposers face as the
land disposal prohibitions become effective. However, the
prohibition of land disposal of KO48-K052 hazardous wastes
prevents the continued land disposal of these wastes past
November 8, 1990. Land disposal is prohibited until the "no
migration" variance has received final approval.
Although a "no migration" variance could be granted to Giant
after November 8, 1990, Giant is advised to be actively arranging
for other treatment or disposal after November 8, 1990. Should
Giant decide to petition EPA for a "no migration" variance, that
petition should be submitted to: U.S. Environmental Protection
Agency, Permits and State Programs Division, 401 M Street S.W.,
Washington, D.C. 20460. As Mr. Michael discussed previously with
Mr. Stokes of Giant, EPA strongly recommends that potential
petitioners meet with the Agency prior to development and submit-
tal of "no migration" petitions. You may contact Mr. Michael of
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my staff at 202-382-2231 to arrange such a meeting, or if you
have specific questions concerning the "no migration" petition
process.
Sylvia K. Lowrance, Director
Office of Solid Waste
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 955L 1990(05)
OCT 91990
SUBJECT: Replacement of Contaminated Soil and Debris
Treated under a Treatability Variance
FROM: Sylvia K. Lowrance, Director
Office of Solid Waste
TO: David Ullrich, Acting Director
Waste Management Division, Region V
This memorandum is in response to your correspondence of
April 25, 1990, in which you requested guidance in relation to six
specific questions dealing generally with how the RCRA land
disposal restrictions may affect certain remedial situations. We
offer the following response to those six questions:
1. Q: Can soil and debris which has been treated in a tank
within the area of contamination (AOC) in accordance
with a treatability variance be replaced within the area
of contamination without meeting any additional 40 CFR
Part 264 requirements?
A: If contaminated soil and debris is treated to meet
standards specified in a treatability variance that has
been approved by the Agency, the treated soil/debris may
then be placed in any treatment, storage or disposal
unit that is in compliance with RCRA Subtitle C. This
could include an "area of contamination" (i.e., a RCRA
landfill) that has been designated by the Regional
Administrator for the purpose of remediating the
facility or site. Thus, as a regulatory matter, there
would be no real distinction between soil/debris that is
treated to the standard(s) set in the treatability
variance and then placed in another unit, as opposed to
"pure" hazardous wastes that are treated to the
applicable Part 268 standards, and placed in another
unit, except as discussed in the response to Question #5
(concerning contaminated media which no longer contains
any waste).
By7stating in your question that the treated wastes
are to'redeposited into the AOC, we assume there is an
implied question as to what design and operating
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implied question as to what design and operating
standards would then be applicable to the AOC itself.
This is discussed in our response to question 16, below.
2. Q: Has the policy set forth on Page 5.12 of the document
Implementing* the Land Disposal Restrictions. October
1989, been revised?
A: This policy has not been revised. The policy states
that once an owner/operator receives a treatability
variance,*completes treatment, and has a treatment
residual to be land disposed, the residue can be
directed to any permitted or interim status unit.
3. Q: For the purpose of land disposal, is the residue of soil
treated under a treatability variance to be
distinguished from the residue of waste treated
according to treatment standards?
A: No. See response to Question 1, above.
4. Q: For the purpose of land disposal, is the residue of soil
treated under a treatability variance in a tank within
the area of contamination to be distinguished from the
residue of soil treated under a treatability variance in
a tank outside of the area of contamination?
A: No. The location of the tank in relation to the "area
of contamination" would not create a distinction as to
how or where the treatment residuals could be land
disposed. This assumes, of course, that the wastes have
been treated to the standards specified in the
treatability variance. A tank cannot be considered a
part of the AOC (landfill), regardless of where it is
physically located; thus, its location would have no
bearing on the standards that would apply to management
of the contaminated soils (or other hazardous wastes,
for that matter) after they have been treated in the
tank.
5. Q: Is a treatability variance for soil and debris to be
considered in effect a delisting? Do the principles of
the "contained in" policy for the treatment of
contaminated ground water have any applicability to the
treatment of contaminated soil and debris?
A: A treatability variance for soil/debris does not have
the effect of a delisting approved for the waste. The
• treated residuals typically will still contain hazardous
wastes, and thus must be managed as such. In contrast,
when wastes are delisted they are generally no longer
subject to .Subtitle C regulation.
The "contained in" policy applies to ground watez
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and other contaminated media such as soil which are
contaminated with listed hazardous wastes. Thus, if
ground water or soil are treated such that
concentrations of the listed wastes are at or below
health based levels, the ground water or soil
would no longer "contain" the hazardous, wastes, and
would therefore be no longer subject to Subtitle C
regulation. Enclosed is a recent memorandum which
provides a more detailed explanation of the contained-in
policy.
*>
6. Q: If an AOC can be considered a RCRA unit for the purpose
of closure, would an AOC ever be considered equivalent
to a RCRA compliant unit for the purpose of disposal?
(See page 6 of OSWER Directive 9234.2-04FS RCRA
Foeus on Closure Requirements.)
A: As outlined in the cited ARARs manual, the AOC is a
concept which can be applied in the context of
remediation under CERCLA response actions or RCRA
corrective actions. It is in many ways analogous to
situations where two or more regulated surface
impoundments would be treated as one unit in the context
of closure of the impoundments.
When applied in the context of RCRA corrective
actions or CERCLA remedial actions, the AOC concept
would allow the Regional Administrator to designate a
broadly contaminated contiguous area to be a RCRA "unit"
(i.e., a landfill) for the purpose of implementing the
remedy. In an existing landfill, the movement or
consolidation of hazardous wastes within the
designated area would not by itself trigger Subtitle C
requirements (including the land disposal restrictions
and the RCRA minimum technology requirements) since that
movement or consolidation does not constitute
"disposal" for Subtitle C purposes. If, however, wastes
are excavated from the designated area, treated in
another unit, and subsequently redeposited into the same
area or unit, disposal has occurred, and the landfill .
would have to comply with applicable Part 264 or 265
requirements,including the LDRs, MTRs, closure standards
(264.310), and the ground water monitoring requirements
of Subpart F, Part 264 or 265.
The proposed Subpart S corrective action rule
explains the AOC (described therein as the "corrective
action management unit") concept in more detail.
However, if you have more specific questions or issues
regarding AOCs, we will be glad to work with you or your
staff to resolve them.
If there are any questions on the above responses to your
-------
questions, please contact Dave Fagan (FTS 382-4497) or Judy
Goldberg (FTS 382-4534).
iclosure
:: Regional RCRA Branch Chiefs
PSPD Branch Chiefs
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9551.1990(06)
OCT I 4 1990
MEMORANDUM
SUBJECT: Guidance from Headquarters to Help Determine Possible
Violation of the Land Drspogalj Restrictions
FROM: Jeffery D. Denit, Dej^
Office of Solid Waste x_«.
/if/itf^' 7'
TO: Bruce r^ffiith, Director /
Office of Hazardous Waste Programs (3HW03)
Region III
This memorandum is written in response to your request for
assistance from EPA Headquarters in making a Land Disposal
Restrictions (LDR) determination for the Rhone-Poulenc facility
located in Institute, West Virginia. As stated in your
August 17, 1990, memorandum, Region III is concerned that the
facility may be impermissibly diluting several waste streams
subject to the LDR requirements. The restricted wastes of
concern are: (1) F039 multi-source leachate wastewater streams
from the Goff Mountain RCRA Landfill, from the site of Union
Carbide's Private Trucking Operation, and from recovery well
(RW-1); and (2) U025 dichloroethyl ether "chlorex" from the RW-1
well. The characterization data provided by Rhone-Poulenc show
the F039 wastewaters as generated (prior to mixing) exceed both
organic and metal LDR treatment standards, and U025 wastewaters
as generated exceed the LDR treatment standard for dichloroethyl
ether.
As described by Rhone-Poulenc in the document entitled
"Treatment of Multisource Leachate in Rhone-Poulenc's Institute,
West Virginia WWTU" submitted to EPA Region III on June 14, 1990,
the treatment system consists of primary treatment (e.g., mixing,
equalization, emergency diversion, neutralization and
clarification) in tanks and secondary treatment (biotreatment and
clarification) in surface impoundments. Before entering the
primary treatment tanks, approximately 15,000 gallons per day
(GPD) of F039 and U025 wastewaters subject to the LDR are mixed
with approximately 4.5 million GPD of process water not subject
to the LDR. The resultant wastewater mixture apparently meets
the LDR levels for F039 and U025 wastewaters before entering the
secondary treatment system. Rhone-Poulenc did not analyze for
all regulated constituents or properly justify the selected
constituents.
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We believe that the facility may be violating the dilution
prohibition. They have not provided evidence supporting that
legitimate treatment for LDR organic or metal constituents is
occurring in their treatment system. We also believe that the
facility may be in violation of land disposing nonwastewaters
that exceed the U025 treatment standards because the facility
appears to have interpreted a portion of the LOR requirements for
nonwastewaters incorrectly. Our analysis is summarized below.
Possible LDR Dilution Prohibition Violation
4f
Rhone-Poulenc argues that its system consists of an initial
aggregation point which equalizes wastes, followed by legitimate
centralized treatment in section 3005(j)(3) aggressive biological
treatment impoundment. (Chambers letter, pp. 4-5.) We discuss
this argument below with respect to organic and metal
contaminants.
Oraanics
The Agency's discussion of this issue appears at 55 FR
22666. In general, we determined that initial aggregation of
similar wastes followed by legitimate centralized treatment may
be permissable (i.e., may not constitute impermissible dilution),
even if treatment occurs in a surface impoundment or other land
disposal unit (provided, of course, that the waste meets the
treatment standard before land disposal occurs, or that disposal
occurs in a section 3005(j)(11) impoundment). (Thus, the issue
of treatment of organics in aggregation tanks is not relevant.)
In determining what constitutes legitimate centralized treatment,
we indicated that the clearest indication was use of the same
type of treatment as that on which the treatment standard for the
prohibited waste is based. Id. col. 2. While biological
treatment was one of the treatment technologies relied upon by
the Agency in establishing treatment standards for multi-source
leachate, it is not the only treatment and is clearly not
appropriate for all F039 constituents. (See Background Documents
on BOAT for F039.) In addition, combination of leachate
containing organics with process wastewater containing organics
for biological treatment could be permissible aggregation,
because it appears that the facility could be combining different
wastes amenable to the same type of treatment technology. Id.
col. 1. Before a final assessment could be made, Rhone Poulenc
would need to submit characterization data demonstrating
similarities in composition between leachate and process
wastewaters (e.g., indicating biodegradable constituents at
approximately the same concentration levels). A demonstration
would also be needed indicating that the treatment impoundment is
capable of treating toxic organics in the commingled wastewaters,
i.e., that levels of these toxic organics are not so low as to go
untreated in the Rhone Poulenc impoundment. Absent such a
showing, EPA could not conclude that the impoundment is
legitimately treating the organics in the prohibited wastes.
-------
Assuming that the leachate is commingled with similar plant
wastewaters and that biodegradation is the appropriate treatment
for all of the F039 organics and for the plant wastewaters, the
treatment of organics would be permissible.
Metals
It appears that Rhone-Poulenc is impermissibly diluting
metals in its system. The same analysis used for organics would
indicate that biological treatment is inappropriate for metals
fid, col. 1-2 ("An example of a type of treatment that is
inappropriate for treatment of certain prohibited wastes would be
biological treatment standards for metals. In these systems,
metal removal is incidental and nowhere as efficient as systems
designed to treat metals...11)). The initial aggregation step, in
which metals are removed by settling, likewise probably does not
constitute proper treatment of metals. As Rhone-Poulenc states,
it is an aggregation step, not a treatment step; it achieves a
homogenous mixture that allows optimization of biological
treatment of organics. Adequate treatment of metals would
require chemical precipitation or some other type of comparable
treatment. (See Background Documents on BOAT for F039.) At the
least, Rhone-Poulenc has not yet demonstrated that it can meet
the F039 wastewater metals standards by use of primary treatment
(i.e., settling in tanks for short periods of time).
Consequently, Rhone-Poulenc is taking a prohibited waste
with treatment standards for metals, which does not meet those
treatment standards as generated, mixing it with a large volume
of wastewater, and introducing it to a system that does not
provide anything more than incidental removal of metals. This
appears to constitute impermissible dilution. Id. at 22666 col.
1-2. (Rhone-Poulenc1s argument that the leachate does not differ
significantly from its process wastewater which is only treated
by biological treatment does not prove anything; it may be that
Rhone-Poulenc is not adequately treating the metals in its
process wastewater either. The key here is that there are metal
standards for multi-source leachate, Rhone-Poulenc's leachate as
generated does not meet those standards, and the leachate only
meets those standards after it is mixed in a treatment system
that at no point does proper treatment for metals.)
Rhone-Poulenc submitted influent and effluent data from a
lab-scale model in an attempt to demonstrate the applicability
and treatment performance of the primary treatment system. The
data submitted show only some reduction for a few regulated
organic constituents and no data is provided to demonstrate
removal rates for any metal constituents. While the final
determination on a case-specific dilution issue should generally
be made by the Region (or State), you should be aware of our
concerns with these data submitted by Rhone-Poulenc. (In many
-------
instances, our concerns are similar to those presented in a
memorandum from Region III to Rhone-Poulenc on July 30, 1990.)
The facility incorrectly labels their lab-scale experiment as a
more stringent test criteria than that required by the Agency to
demonstrate treatment performance and refers to the November 1989
proposal for the Third-Third rule. EPA proposed to require a
reduction of at least one BOAT list constituent at the point of
aggregation to demonstrate that the aggregation did not
constitute impermissible dilution (54 ££ 48372, 48494-48496).
The reason the Agency did not finalize this criteria is because
it was not stringent enough to provide the adequate information
needed to make a reliable determination of legitimate treatment
(55 IB 22665).
We believe that the lab-scale data are inadequate to
demonstrate that appropriate treatment for F039 and U025
wastewaters is achieved before disposal into the surface
impoundments. Not only should data from the actual full-scale
treatment system be used to make a demonstration of treatment
performance, but it should include removal rates for all
regulated constituents determined to be present in the wastes.
(For F039, the regulated constituents include over 200
constituents, regardless of the original constituent listings of
wastes disposed in the landfill and surface impoundments.) Based
on our experience, the type of treatment used by Rhone-Poulenc
will likely not provide removal rates comparable to the levels
otherwise needed to legitimately treat the metals present in the
F039 wastes to BOAT levels; consequently, it appears the facility
is diluting metals impermissibly to achieve the LDR levels for
F039 wastewaters.
Possible Nonwastewater LDR Violation
It also appears that Rhone-Poulenc is in violation of
various standards for nonwastewaters. First, with respect to the
sludge derived from treating F039 wastewaters, the sludge
received a two-year national capacity variance and consequently
can only be disposed of in a minimum technology surface
impoundment during that period or must comply with F039
nonwastewater standards. See Section 268.35(h). Section
3005(j)(3) impoundments do not meet the minimum technology
requirement provisions unless they have received one of the
section 3004(o)(2) or (3) waivers. See 53 FR 31185-186 (August
17, 1988) ("although many commenters stated that the retrofit
waivers granted under 3005(j)(3) ... should also be recognized
under the land disposal restrictions, the Agency disagrees. EPA
believes that Congress would have included these waivers had it
intended to do so.") Thus, absence compliance with a waiver from
minimum technology requirements (the section 3004(o)(2) waivers
are codified in 264.221(d) and (e) and 265.221(c) and (d)), the
sludge cannot be placed in the surface impoundment.
With respect to the treatment standard for U025, the
standard must be met before land disposal of the waste. API v.
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E2A, 906 F. 2d 729, 735-36 (D.C. Cir. 1990). Consequently, the
sludge in the impoundment must meet the nonwastewater U025
standard. In addition, further placement of the sludge in the
Goff landfill is acceptable only if that landfill is a subtitle C
unit (and the sludge would have to meet the U025 treatment
standards before that land disposal as well).
Should you require additional information, please contact me
at FTS 382-4627 or Richard Kinch at FTS 382-7917.
Attachments
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9551.1990(07)
OCT I 4 1990
Mr. G. A. Vogt, Manager
Environmental Compliance & Plant Services
Thompson Consumer Electronics, Inc.
P.O. BOX 2001
Marion, Indiana 46953-4399
Dear Mr. Vogt:
This letter is in response to your July 10, 1990, letter
regarding clarification of the national capacity variance for
inorganic solids debris under EPA's Land Disposal Restriction
Regulations for Third Third Wastes. In general, your letter
questioned the scope of the definition of inorganic solids debris
as well as its application. The delay in responding to your
letter results from the myriad related questions that the Agency
has received concerning these issues. The Agency can now offer
the following clarifications for your situation:
For the purposes of determining the applicability of the
capacity variance extension, the waste in question must only be
specified as a D004, D005, D006, D007, D008, D009, D010, or D011
waste and must meet all the criteria listed in the definition of
inorganic solids debris in 268.2(g). (See 55 FR 22686 (June 1,
1990).) It must also exactly fit one of the eight specific
categories of inorganic solids debris listed in 268.2(g)(l)-(8).
While some wastes may appear to fall under one of these
categories (e.g., 268.2(g)(6) and (7) include wastes identified
as containers, drums, pipes, valves, appliances, or industrial
equipment), they must first meet the criteria in the preceding
portion of the definition that clearly indicates that these
wastes must be inorganic or roetal materials. In the June 1, 1990
rule, the Agency also gave specific examples of organic solids
debris (55 £B 22555) in order to help clarify the classification
of a waste as organic versus inorganic. These examples of
organic debris included: rags, paper, cardboard, clothes, gloves,
paints, paint chips, wood, grubbing materials, blankets, hoses,
bags, resins, plastic liners, and PVC piping. (Please see also
the discussion of inseparable mixtures of inorganic and organic
debris later in this letter.)
In response to your question on metal-contaminated cloth
filters, they would be classified as organic solids debris
because cloth is typically comprised of organic materials. EPA
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has granted a national capacity variance for soil and debris for
which the underlying standard (i.e., waste code-specific
standard) is based on incineration, vitrification (D004 arsenic
wastes), or mercury retorting (D009 mercury wastes with greater
than 260 mg/kg total mercury). While the underlying standards
for most D004—D011 metal wastes were generally based on
stabilization rather than incineration, the Agency did state, at
55 FR 22555 (June 1, 1990), "as a matter of treatment policy
prohibited metal wastes that are generated as an organo-metallic
or in an organic matrix can be incinerated ... , prior to
subsequent treatment of the ash (if necessary), in order to
comply with a concentration-based standard or to comply with a
technology-based metal treatment standard.11 and that "... much of
the D004—DOll organic debris may be treatable by washing or
extraction rather than incineration." Thus, only organic solids
debris that must be treated by incineration, vitrification, or
mercury retorting in order to comply with the metal standards,
received a variance. If the metal-contaminated cloth filters
cannot be decontaminated to below the appropriate treatment
levels by washing or extraction with acids (or other appropriate
media) and would therefore have to be incinerated, they are
subject to the national capacity variance.
During a follow-up telephone conversation with my staff, you
also indicated that one of the wastes on which you were seeking
guidance consists of broken color picture tubes made primarily of
glass. While EPA has specifically identified glass as one of the
specific types of inorganic debris according to 268.2 (g)(3), one
needs to evaluate the applicability of the rest of the definition
of inorganic solids debris. One must first determine if the
waste is friable (i.e., easily or readily crumbled). Although
broken color picture tubes would be expected to be somewhat
friable, one must also determine whether the subsequent pieces
pass the 9.5 mm sieve size. Based on your remarks, we assume
that at least some of the waste (either "as generated" or the
friable residues) will indeed pass through, but not all. Also,
additional small pieces from other similar friable materials may
be generated during transportation and handling (i.e., more
pieces may be generated that would pass through a 9.5 mm sieve).
Thus, the questions become "When does one apply the standard?"
and "Is there a percentage of the waste that must not pass
through the sieve in order to be classified as an inorganic
solids debris?"
In responding to this question, one must examine the
Agency's intent in promulgating the variance. The key to the
variance is that wastes in the inorganic solid debris categories
would have to be crushed or "otherwise reduced in size" prior to
stabilization (55 ZB 22556). The Agency had determined, that
there was inadequate capacity for "cutting, or crushing and
grinding in mechanical sizing equipment" for these wastes. Thus,
it is the link between the type of inorganic solids debris and
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the sizing equipment required as pretreatment (i.e., prior to the
stabilization process) that was the key factor in determining the
need for the capacity variance.
As a result, the Agency has determined that the point of
generation is where the waste is identified as inorganic solid
debris for purposes of the national capacity variance. If any of
the waste material does not completely pass through a 9.5 mm
sieve, then the e*htire quantity of waste material qualifies as
inorganic solid debris. In addition, if the waste material is
friable (i.e., easily crumbled) but some of the pieces will not
pass through a 9.5 mm sieve, then the entire quantity of waste
material is considered to be inorganic solid debris. Therefore,
any debris that may fall through a 9.5 mm sieve because of
transporting from the generator's site to the disposal site is
also considered to be inorganic solid debris that is subject to
the national capacity variance.
Wastes appearing to meet the definition of inorganic solids
debris under section 268.2(g)(6) (metal cans, containers, drums,
or tanks) and (7) (metal nuts, bolts, pipes, pumps, valves,
appliances, or industrial equipment) often contain organic parts
that are difficult to separate. This occurs particularly in
cases such as: 1) industrial process equipment being dismantled;
2) industrial valves comprised of composites of organic and
inorganic materials; and 3) appliances containing multiple
connected parts. Capacity for sizing and separation is also
lacking for this type of inorganic solid debris (which was the
basis of the variance is also applicable for this type of
inorganic solids debris. Thus the variance for inorganic solids
debris will apply to these inseparable mixtures except in
situations where during the dismantling, the organic materials or
a significant portion of the organic materials are manually
separable or separable by simple mechanical means. The separated
organic materials must then be treated for their metals content
and thus comply with the applicable treatment standards for D004
— DOll (except as noted above). Only the inorganic solids
debris that are separated from the nonhazardous organics are
subject to the national capacity variance.
I hope this letter addresses your major concerns. If you
have any further questions, please call Richard Kinch, Chief of
the Waste Treatment Branch, at (202). 382-7927.
Sincerely
>ylvia K. Lowranc
Director
Office of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551.1990(08)
OCT24I990
Mr. Fielding Fonnway
ARCO Products Company
Post Office Box 11*57
Ferndale, Washington 98248
Re: No-Migration Petition submitted for ARCO Products Company's
Ferndale, Washington Land Treatment Facility (F-90-NCPP-
FFFFF)
Dear Mr. Formvay:
I am writing in regard to your September 5, 1989 "no-
migration" petition, which requests a variance under 4.0 CFR
§268.6 to allow ARCO Products Company (ARCO) to continue the land
treatment of restricted wastes (EPA Hazardous Waste Nos. K050 and
K051) at ARCO's Ferndale, Washington Land Treatment Facility
No. 7 (LTF-7). After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no-
migration finding. Therefore, we will recommend to the Assistant
Administrator for Solid Waste and Emergency Response that the
petition be denied.
Our decision to recommend denial of the petition is based on
several concerns:
• The ground-water monitoring system is inadequate for the
purpose of a no-migration variance, because it will not
detect migration at the earliest time.
• The separation between the bottom of the treatment unit and
the top of the seasonally high-water table exceeds the
minimum requirement.
Unsaturated zone monitoring for benzene, chrysene, and
selenium indicate that hazardous constituents have already
migrated beyond the unit boundary, and are likely to
continue to do so in the future.
Your air modeling shows concentrations of benzene at the
unit boundary that exceed the allowable health-based
standard.
The details of our concerns are described below.
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-2-
Ground—Water Monitoring
We have concluded that ARCO has failed to meet the
requirements of 40 CFR §268.6(a)(3) and (4). Specifically, we
believe that ARCO has not adequately determined background
conditions in both the ground water and soil-pore water
underlying LTF-7. First, ARCO proposed well AW-45 as an
upgradient veil and wells AW-47, 48, 49, and 50 as downgradient
wells. ARCO notes elsewhere in the petition, however, that
because of the transient nature of the water table, wells 45 and
63 are considered downgradient as well as upgradient (V.I, page
5-30 and Section 6.6). We conclude, therefore, that ARCO's
ground-water monitoring system at LTF-7 does not have an
upgradient monitoring well that is capable of consistently
providing samples of ground water unaffected by the treatment
unit.
Second, we question whether ARCO can collect samples of
soil-pore water which are representative of background
conditions, as required by 40 CFR §264.278(b)(1). Specifically,
ground-water contours shown in Figure 3-7 of the petition
indicate a ground-water divide trending generally to the west
across Plot-7C. Although ground water is shown to flow generally
to the northwest under LTF-7, the presence of the ground-water
divide, as well as the southwesterly ground-water flow shown for
LTF-45 and LTF-47, indicate that ground water may flow to the
southwest from LTF-7 to the background plot and, thus, to the
background lysimeters located south of the southwest corner of
Plot-7C, (Figure 5-1 on page 5-14). (This means that one of the
background lysimeters may be downgradient of LTF-7.) We are
concerned that this flow pattern may be present since only the
general direction of ground-water flow is shown (e.g., an annual
average) and not its seasonal patterns. If ground water
periodically flows from LTF-7 to the background lysimeters for
Plot-7C, soil-pore water samples taken from these lysimeters
could not be reliably used to establish background
concentrations.
Maintaining Minimum Separation
Federal regulations require that the depth to ground water
at land treatment facilities should be no less than three feet
from the bottom of the treatment zone to the seasonal high water
table (see 40 CFR §§264.271(c)(2)). As ARCO acknowledged in its
petition (V.I, page 3-12), the ground water beneath LTF-7
sometimes rises to a level that is within the lower treatment
zone of LTF-7 (i.e., above a depth of five feet) due to the low
permeability of the subsoil and the area's humid climate. Figure
3-8 of the petition displays the results of bi-weekly readings of
water levels in three sets of paired, shallow piezometers
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-3-
conducted from July 1988 to April 1989. These data s»«-
ground water was present during this period at depths in the
treatment zone as high as 2.8 feet below the ground surface and
that, in general, ground water was present at depths at or above
five feet below the ground surface between November and April of
the sampling period.
ARCO's inability to maintain the minimum separation between
the bottom of the treatment zone and the top of the seasonally
high ground-water table is further supported by information
presented in Table E-4 of ARCO's petition. Our evaluation of the
data presented in Table E-4 revealed that between January and
April 1987, ground water beneath LTF-7 was measured at depths
ranging from 0.89 to 6.1 feet below "top of casing." Although,
ARCO did not provide information on the distance between the
ground surface and the "top of casing," typical distances from
the ground surface to the top of the well casing are generally
between one and three feet. Thus, even if the distance between
the ground surface and the "top of casing" was three feet, the
water table would,only have been 3.89 to 9.1 feet below the
around surface during the January - April 1987 period.
Presence of Constituents Below the Treatment Zone fBTZl
Various data indicate that migration of hazardous
constituents below the treatment unit has recently occurred. The
petition noted (V.I, page 5-18), that chrysene was detected in
ground-water monitoring well No. 43 in January, 1988 at 3.3' ppb,
which is in excess of the health-based level (HBL) of 0.2 ppb
used in no-migration decisions. Furthermore, correspondence
between ARCO and Washington Department of Ecology (WDOE)
(November 6, 1989 and January 24, 1990) that has been shared with
us indicates that benzene, chrysene, and selenium have also been
detected in soil-pore liquids beneath the treatment zone at
hazardous concentrations. We present these data below in
Table 1.
1 Table E-5 of Appendix A presents for monitoring wells
other than those listed on Table E-4, elevation measurements made
at the top of casing and surface grade. These data indicate that
the distance between the ground surface and the top of the well
casing ranged from a low of 0.59 feet (well number AP-46) to a
high of 2.15 feet (well number AP-64).
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-4-
TABLE 1
Soil-Pore Liquids Monitoring Data
Constituents Lysimeter No. HBL(ppb) Concentration(ppb) Date
Benzene
Chrysene
Selenium
22
Composite 2/
Composite I/
5
0.2
10
6.4
7.4
10.0
1.4
14.0
8/89
9/89
12/89 I/
9/88
2/87
I/ Composite sample (Based on page 1-5 of ARCO's January
24, 1990 letter to Mr. Richard A. Burkhalter, Washington
Department of Ecology) .
2/ Composite sample containing samples collected from
lysiaeter numbers 21GB, 22GB, and 23GB.
Composite sample containing samples collected from
lysimeter numbers 21PC, 2 2 PC, and 2 3 PC.
As shown above in Table 1, benzene, chrysene, and selenium
have migrated past the unit boundary at concentrations in excess
of the HBL used in no-migration petition decision-making. We
note that concentrations of the above constituents may actually
have been detected at an individual lysimeter at concentrations
higher than those reported, due to the averaging effect obtained
from compositing the lysimeter samples.
ARCO's January 24, 1990 letter also stated that toluene,
ethylbenzene, and xylene were detected in lysimeters, which
"indicates a problem with the current operating practices for
landfarm Plot-7B." ARCO indicates that hairline fractures in the
clay may be aiding contaminant transport from Plot-7B (Attachment
page 1-4) but also suggests that these hairline fractures are a
local phenomenon because similar lithology was not detected in
other borings. Because the petition states that fractures in the
clay are a source of recharge for the underlying ground water, we
conclude that future migration will continue to occur. ARCO
believes it can address this concern by decreasing waste loadings
made to Plot-7B. If this leads to an increase in waste loadings
made to Plots-7C and 7A, we are concerned that this increase may
cause additional migration.
Lastly, data presented in Table 5-8 of the petition, show
that chrysene was detected below the treatment zone at
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-5-
concentrations of 130 ppb for separate sampling periods in July,
1987 and January, 1988. We do not believe that ARCO can explain
the presence of chrysene as resulting from a recent, one-time
overapplication and the recurring presence of chrysene beneath
the treatment unit at concentrations in excess of the health-
based level of 55 ppb is a further basis for petition denial. The
presence of chrysene beneath the treatment zone, will also
obscure future determinations of whether chrysene is continuing
to migrate.
Air Monitoring
In its petition, ARCO stated that the CHEMDAT6 model
predicted concentrations of benzene at the unit boundary in
excess of the health-based standard by a factor of 1.4;
therefore, ARCO is "exploring waste minimization, pretreatment,
and operation modifications which can effectively reduce the
predicted emissions for benzene to meet appropriate standards if
necessary" (V.I, Executive Summary, pages 6-7). In fact, the
petition indicates (V.I, page 8-12) that the predicted annual
average concentration of benzene in the air at the unit boundary
is 1.0 ug/m, which exceeds the health-based level of 0.12 ug/m
Elsewhere in the petition (V.I, page 7-11), the average
concentration of benzene in the air at the unit boundary is
reported as 1.56 ug/m3 (including a May 1985 waste sampling
event), which also exceeds the health-based level. Therefore,
ARCO's predicted benzene concentrations (1.0 ug/m3) at the unit
boundary fail to satisfy the no-migration standard of 0.12
ug/m3.2
Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above, would be needed to complete the
petition. However, because of the problems above, we believe we
have enough information at this time to move toward a denial of
your petition.
It is our practice to give petitioners the option of
Based on our review of Tables E-24 through E-27, it
appears that the values of predicted maximum long-term ambient
air concentrations in Table 7-3 were not corrected based on the
results of the confirmatory monitoring program discussed in
Appendix E. If corrected for monitored concentrations, the
predicted concentrations of benzene at the unit boundary actually
may be higher than reported in the petition. In addition, it is
likely that ARCO's confirmatory monitoring program may not have
been performed during worst-case emission and dispersion
conditions. As a result, the concentration of benzene may
actually be higher than measured and an even higher correction
factor may be warranted.
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-6-
withdrawing their petitions to avoid a negative publication in
the Federal Register. If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions scheduled
to be effective November 8, 1990. This letter should be
forwarded to the following address within two weeks of the date
of receipt of today's correspondence:
Elizabeth A. Cotsworth, Chief
Assistance Branch (OS-343)
Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, S.H.
Washington, D.C. 20460
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register.
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
cc: Michael Gearheard, Region X
Carrie Sikorski, Region X
Dave Bartus, Region X
Kim Anderson, WDOE
Elizabeth Cotsworth, EPA HQ
James Michael, EPA HQ
Terry Keidan, EPA HQ
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-7-
bcc: Newman Smith, AB, PSPD, OSW
Dave Reeves, WHO, OSW
Richard Kinch, WMD, OSW
Kathy Stein, OE
Wanda Levine, WMD, OSW
Howard Finkel, ICF Incorporated
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 1990(Q9)
6190)
Mr. David R. Saad
Environmental Coordinator
Marathon Petroleum Company
Marathon Avenue
Robinson, Illinois 62454
Re: No-Migration Petition submitted for Marathon Petroleum
Company's Robinson, Illinois Land Treatment Facility and
Storage Surface Impoundments (F-90-NMPP-FFFFF)
Dear Mr. Saad:
I am writing in regard to your December 5, 1989 "no-
migration11 petition, which requests a variance under 40 CFR
§268.6 to allow Marathon Petroleum Company (Marathon) to continue
the land treatment and storage of restricted wastes (EPA
Hazardous Waste Nos. K048 - K052) at Marathon's Robinson,
Illinois land treatment facility (LTF) and storage surface
impoundments. After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no-
migration finding. Therefore, we will recommend to the Assistant
Administrator for Solid Waste and Emergency Response that the
petition be denied.
Our decision to recommend denial of the petition regarding
the land treatment facility is based on several concerns:
Ground water and unsaturated zone monitoring data
indicate that hazardous constituents have already
migrated beyond the unit boundaries.
The ground-water monitoring system for the land
treatment facility is inadequate for the purpose
of a no-migration variance because it will not
detect migration at the earliest practicable time
due to the presence of hazardous constituents
beneath the land treatment units.
The separation between the bottom of the land
treatment unit an
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We also recommend denial of the petition for the storage surface
impoundments because Marathon will not be able to differentiate
between past releases from the previously unlined surface
impoundments and possible future releases from the retrofitted
units. The details of our concerns are described below.
Land Treatment Facility
presence of Constituents Below the Treatment Zone fBTZl
•
Ground-water and soil-pore monitoring data provided in
Marathon's petition indicate that migration of hazardous
constituents below the treatment units has already occurred.
Specifically, analyses of ground-water samples collected during
May 1989 (Appendix C, V.3, Appendix E, Table E-14) have indicated
the presence of bis(2-ethylhexyl)phthalate in three monitoring
wells (P6B, P7C, and P12B) at concentrations ranging from 20 to
47 ug/1. These data indicate that bis(2-ethylhexyl)phthalate is
present in the ground water at concentrations in excess of the
health-based level of 3 ug/1 used in no-migration petition
decision-making. In addition, results from six other monitoring
wells (P3D, P4C, P5C, PSB, P8C, and P12A) show the use of higher
than normal detection limits (20 or 36 ug/1 rather than 10 ug/1)
for this same parameter, indicating this compound's possible
presence at similar concentrations in the ground water at these
other locations.
In addition, benzene was detected at a concentration of 33
ug/1 in the soil-pore liquid collected from lysimeter L-3 on
July 6, 1989 (Appendix C, V.3, Table E-14). (The health-based
level for benzene is 5 ug/1.) Marathon infers that benzene is
commonly found in the air at refineries, and therefore, spurious
contamination of the sample may have occurred (Appendix C, V.I,
page 2-16). However, Marathon did not provide the necessary data
to support their speculation. Therefore, we can only conclude
that these data provide evidence of migration from the unit.
Detecting Migration at the Earliest Practicable Time
We have also concluded that Marathon's groundwater
monitoring system will not be able to detect migration at the
earliest practicable time. Therefore, it failed to meet the
requirements of 40 CFR §268.6(a)(4). Specifically, we are
concerned that Marathon will be unable to differentiate between
past releases from other sources and past, present, and future
releases resulting from the operation of the LTF. We also are
concerned that Marathon's unsaturated zone monitoring system will
not be able to detect potential migration in the northern section
of the West land treatment unit. We discuss our conclusions
below.
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Soil-core data provided by Marathon indicate that hazardous
constituents are present below the West land treatment unit.
Specifically, based on the presence of benzo(a)anthracene,
benzo(a)pyrene, benzo(b)fluoranthene, bis(2-ethylhexyl)phthalate,
chrysene, and pyrene in below treatment zone (BTZ) soil cores,
Marathon has concluded that a "historical waste body" which
predates operation of the West land treatment unit, exists
beneath the unit (see Attachment I). Of these constituents,
benzo(a)anthracene,"benzo(a)pyrene, benzo(b)fluoranthene, and
chyrsene were detected below the treatment zone at concentrations
exceeding the health-based levels used in no-migration petition
decision-making.
Marathon states that these data do not conclusively prove
that constituents are migrating below the treatment zone.
Rather, Marathon argues that the presence of the above
constituents is due to past operations at this same site.
Marathon, however, has not explained how and when this
"historical waste body" was deposited. Therefore, we conclude
that Marathon has not conclusively proven that the constituents
detected below the treatment zone did not occur as a result of
land treatment operations.
Regardless of whether the contaminants beneath the
treatment unit resulted from a "historical waste body" or from
current operations, we believe that Marathon will be unable to
determine whether releases occurred because the waste
constituents detected below the treatment zone have also been
detected in the wastes managed at the land treatment unit. Due
to Marathon's inability to differentiate between past releases
from other sources and past, present, and future releases (if
any) resulting from the operation of the LTF, we conclude that
Marathon has failed to meet the requirements of 40 CFR
§268.6(a)(4).
Lastly, in 1988, Marathon expanded the 17-acre West land
treatment unit to include an adjacent three acres (the northern
expansion). Run-off from both the East and West land treatment
units drain into this area and are routed to storage tanks and
the refinery's wastewater treatment system. During storms,
however, the run-off does not drain as fast as it accumulates,
and the northern expansion area floods. As a result of the
ponding, a temporary hydraulic head is formed, increasing the
potential for migration of hazardous constituents. Although
Marathon recently installed new lysimeters in the northern
expansion, samples have yet to be collected. Marathon has
collected soil core samples from this area, but results have not
been submitted. Marathon, therefore, is unable to demonstrate
that there has been, or will not be migration of hazardous
constituents from this area of the West land treatment unit.
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Maintaining Minimum Separation
Federal regulations require that the depth to ground water
at land treatment facilities should be no less than three feet
from the bottom of the treatment zone to the seasonal high water
table (see 40 CFR §§264.271(c)(2)). Data provided in the
petition . indicate there may be a seasonal high water table or
perched water table within the till layer beneath the LTF, or at
least near the northern part of the LTF, that encroaches into the
three foot thick buffer zone required below the treatment zone.
Specifically, some of the monitoring wells screened in the till
and at the till/sandstone interface were found to have depth-to-
water level measurements of less than eight feet. The water
level measurements were taken during relatively dry months
(August and November) in which ground water is at a low level.
Marathon's inability to demonstrate that it is maintaining the
minimum separation between the bottom of the treatment zone and
the top of the seasonally high ground-water table is a basis for
denial of the no-migration petition.
Surface Impoundments
We have concluded that Marathon has failed to demonstrate,
to a reasonable degree of certainty, that constituent migration
from the three storage surface impoundments will not occur. We
note that it is difficult to evaluate the long-term performance
of the liner system installed in the three surface impoundments
for the storage of both liquid wastes and bulk dry wastes.
Discussed below are the reasons why we have concluded that
Marathon has failed to demonstrate that there will be no-
migration of constituents at hazardous concentrations from the
three impoundments.
First, we are concerned that Marathon will not be able to
differentiate between past releases from the previously unlined
..impoundments and future releases (if any) from the new lined
impoundments. Specifically, between 1980 and 1988, Marathon
operated the three surface impoundments without liners and leak
detection systems. After eight years of operating without
liners, we believe that it is likely that some contamination of
the subsoils has occurred beneath these impoundments. According
to the Geological Engineering Report for the three surface
impoundments (Appendix D, V.I, Attachment V, page 3-2), soil
borings taken from areas near the pits showed a layer of soil
with strong odor and appearance of hydrocarbons. The presence of
contaminated soils beneath the impoundments will hinder
Marathon's ability to determine whether constituents are
migrating from the impoundments and affect Marathon's ability to
detect constituent migration at the earliest extent practicable.
Second, on June 19, 1990, the Illinois Environmental
Protection Agency (IEPA) conducted a site visit at the Robinson
-------
Refinery. During the site visit, it was apparent that waste
overtopping had occurred as evidenced by the dead vegetation and
stained soil on the south side of the impoundment. In the
petition, Marathon has claimed that, to prevent overtopping, they
designed the impoundments with adequate freeboard (two-feet). As
overtopping, induced by local meteorological conditions, recently
occurred, Marathon's design of the impoundments is insufficient
to prevent future occurrences of overtopping. As a result,
Marathon has failed to prove, to a reasonable degree of
certainty, that there will be no migration.
Third, Marathon stated that the Oily Sludge Pit had leaked
due to a one-inch tear in the upper flexible membrane liner in
the center of the pit, which "appeared to have been caused by
some external mechanism and was not the result of material
failure." Marathon does not know how the liner was damaged.
Without this knowledge, Marathon can not guarantee that such an
event would not occur in the future. In addition, the petition
indicated that the bulk waste pit will be manually cleaned out
every one-to-five years, depending on the waste accumulation
rate. Without knowledge of how or why the impoundment liner was
damaged, Marathon will not be able to guarantee that the bulk pit
liner will not be damaged when personnel remove solids.
Completeness of Petition
Finally, our review indicates that the petition is
incomplete and that information and clarification, in areas
beyond those highlighted above, would be needed to complete the
petition. However, because of the problems noted above, we
believe we have enough information at .this time to move toward a
denial of your petition.
It is our practice to give petitioners the option of
'withdrawing their petitions to avoid a negative publication in
the Federal Register. If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Land Disposal prohibitions scheduled to be
effective November 8, 1990. This letter should be forwarded to
the following address within two weeks of the date of receipt of
today's correspondence:
Patricia Conn, Acting Chief
Assistance Branch (OS-343)
Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
-------
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register,
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
*•
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
Attachment
cc: Karl Bremer, EPA Region V
George Hamper, EPA Region V
Gale Hruska, EPA Region V
Larry Eastep, Illinois EPA
Patricia cohn, PSPD, OSW
James Michael, PSPD, OSW
Terry Keidan, PSPD, OSW
-------
ATTACHMENT Z
Summary of Constituents Detected in the BTZ (ing/kg)
Constituents
B*nzo(i)anthractrw
B*nzo(a)pyr«rw '
Btnzo(b)f luoranthcn*
BU<2EH)phthal«tt
Chryvant
Pyrtn*
Oatt *
07/11/89
07/11/89
04/18/89
07/11/89
07/11/89
08/10/88
08/10/88
07/11/89
04/19/89
07/11/89
08/09/88
08/10/88
04/18/89
04/18/89
07/11/89
07/11/89
04/18/89
SMplt
Nunfetr
LTD-5-2
LTO-5E-2
LTO-12D
LTO-5E-2
LTD-SE-2
RI-170
HJ-50
LTO-50-2
LTO-5E
LTO-5E-2
81-100
RI-120
LTO-12D
LTO-12E
LTO-5-2
LTD-5E-2
LTD-12D
Concantrstlon
20
120
0.63
63
52
0.68
0.41
110
0.095
650
1.3
0.35
3.4
0.99
27
160
0.63
Htalth-BtMd
Ltvtl
0.055
0.055
O.OSS
50
15 J/
32,000
I/ Calculated by Marathon using the RFI Guidance Manual.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1990(10)
NOV 7 1990
Mr. R. G. Soehlke
Plant Manager-
Star Enterprise
Delaware City Refinery
2000 Wrangle Hill Road
Delaware City, Delaware 19706
Re: No-Migration~Petition submitted for Star Enterprise's
Delaware City, Delaware Land Treatment Unit
(F-90-NSEP-FFFFF).
Dear Mr. Soehlke:
I am writing in regard to your December 26, 1989 "no-
migration" petition, which requests a variance under 40 CFR
§268.6 to allow Star Enterprise to continue the land treatment of
restricted wastes (EPA Hazardous Waste Nos. K048 - K051) at
Star's Delaware City, Delaware land treatment unit (LTU). After
a careful review of your petition, we have concluded that your
facility does not meet the standard for a no-migration finding.
Therefore, we will recommend to the Assistant Administrator for
Solid Waste and Emergency Response that the petition be denied.
Our decision to recommend denial of the petition is based on
two main concerns:
• Unsaturated zone monitoring for lead and nickel
indicate that hazardous constituents have already
migrated beyond the unit boundary.
• Ground-water monitoring for arsenic, chromium, lead,
selenium, and vanadium indicate that hazardous
constituents have already migrated beyond the unit
boundary.
The details of our concerns are described below.
Presence of Constituents Below the Treatment Zone fBTZ^:
Analyses performed on the soil-pore liquids indicate that
lead and nickel have migrated out of the treatment zone. Soil-
pore samples taken during the first three quarters of the land
treatment demonstration (12/88 - 5/89) show the exceedance of
lead and nickel above their respective health-based levels. Lead
showed concentrations in excess of the health-based level of 0.05
mg/1 for 13 out of the 34 samples taken, while nickel showed
concentrations in excess of the health-based level of 0.1 mg/1
-------
-2-
or 15 out of the 35 samples taken. These data demonstrate that
loth lead and nickel have migrated below the treatment unit at
loncentrations in excess of their respective health-based levels.
See Attachment, Table 1).
>resence of Constituents in the Ground Water
Results of ground-water monitoring analyses also indicate
:he presence above*health-based levels Of metals in the ground-
rater at the LTU boundaries. Specifically, arsenic (125 ppb),
selenium (up to 50 ppb), lead (up to 208 ppb), chromium (up to
J20 ppb), cadmium (up to 122 ppb), and vanadium (455 ppb) were
shown to exceed their respective health-based levels. (The
wealth-based level for arsenic, lead, and chromium is 50 ppb; for
selenium and cadmium, the health-based level is 10 ppb; and for
sanadium the health-based level is 240 ppb). While background
nay have contributed somewhat to the measured levels of the
hazardous constituents, the differences between the upgradient
nonitoring well concentrations and the downgradient monitoring
well concentrations exceeded the health-based levels. Therefore,
these data demonstrate that arsenic, selenium, lead, chromium,
cadmium, and vanadium have migrated to the ground-water above
their respective health-based levels. (See Attachment, Table 2).
Incomplete Petition
Finally, our review indicates that the petition remains
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the problems above, we believe we have enough
information at this time to move toward a denial of your
petition.
It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the federal Register. If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions scheduled
to be effective on November 8, 1990. This letter should be
forwarded to the following address within two weeks of the date
of receipt of today's correspondence:
Patricia Cohn, Acting Chief
Assistance Branch (OS-343)
Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
-------
-3-
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register,
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
Attachment
cc: John Humphries, EPA Region III
David Turner, EPA Region III
Guy Lee, DNREC
Patricia Cohn, PSPD, OSW
James Michael, PSPD, OSW
-------
-4-
bcc: Terry Keidan, AB, PSPD, OSW
Allyson Ugarte, AB, PSPD, OSW
Dave Reeves, AB, PSPD, OSW
Richard Kinch, WMD, OSW
Kathy Stein, OE
Mikki Roy, WMD, OSW
Howard Finkel, ICF Incorporated
-------
ATTACHMENT
TABLE 1
Summary of Soil-Pore Monitoring Data
For Lead and Nickel
Cell No.
First Quarter
(12/15/88-5/6/89)
Lead Mlckef
Second Quarter
(3/13/89-5/1/89)
Lead Nickel
Third Quarter
(5/8/89-7/3/89)
Lead Nickel
1 <0.
2 <0.
3 «{Q
4 • <0*
5 ^0
6 <0.
7 <0.1
8 <0.
9 <0.1
10 <0.1
11 HA
12 <0.1
BL-1 HA
Triple Blank <0.
0.29
0.18
0.08
0.2
0.15
0.08
0.12
0.08
0.12
-------
TABLE 2
GROUND-WATER MONITORING DATA
YEAR
Arsenic Selenium Lead Chromium Cadmium Vanadium
BKG*
<50
<50 <50
90
130
HBL
50
10
50 50
10
240
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
125
50
15
173
96
136
208 230
320
60
73
55
104
122
455
Background values shown record the highest reported value.
Background value for cadmium (well no. 26) was taken 9/86, and
for vanadium (well no. 36D) was taken 6/89.
Downgradient values are taken from well numbers 18, 19 and 41.
All units are in ppb.
Only the highest values detected are shown in this table.
No-Migration Petition, Appendix B, Volume 3, Section E-2.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1990(11)
NOV 7 1930
Mr. D. D. Smart
Manager of Health, Safety, and Environment
Shell Oil Company
Anacortes Refinery
P.O. Box 700
Anacortes, Washington 98221
Re: No-Migration Retition submitted for Shell Oil Company's
Anacortes, Washington Land Treatment Facility
(F-90-NSAP-FFFFF).
Dear Mr. Smart:
I am writing in regard to your January 17, 1990 "no-
migration" petition, which requests a variance under 40 CFR
§268.6 to allow Shell Oil Company to conduct the land treatment
of restricted wastes (EPA Hazardous Waste Nos. K049, K051, K052,
and WP03) at Shell's Anacortes Refinery land treatment facility
(LTF). After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no-
migration finding. Therefore, we will recommend to the
Assistant Administrator for Solid Waste and Emergency Response
that the petition be denied.
Our decision to recommend denial of the petition is based on
several concerns:
Soil-pore and soil-core monitoring indicate that
hazardous constituents have already migrated beyond the
unit boundary.
Shell will not be able to detect migration at the
earliest time because Shell has indicated that ground-
water monitoring wells will not be used to demonstrate
no-migration.
The details of our concerns are described below.
Presence of Hazardous Constituents Below the Treatment Zone fBTZ)
Soil-pore and soil-core monitoring data provided in Shell's
petition indicate that migration of hazardous constituents below
the treatment unit has already occurred. Specifically, analyses
of soil-pore data collected from 1987-1990 have indicated the
presence of antimony, benzene, benzo(a)anthracene,
benzo(b)fluoranthene, benzo(k)fluoranthene, and chrysene above
-------
health-based levels used in no-migration decision-making. The
results of these analyses are presented in Attachment 1.
In addition, several soil samples from beneath the treatment
zone indicated the presence of antimony, benzo(a)anthracene, and
benzo(b)fluoranthene above health-based levels. The results of
these analyses are provided in Attachment 2. Shell personnel, in
the course of a March 1990 site visit by EPA representatives,
suggested that the "presence of certain of these contaminants may
be due to cross-contamination in the coring process. However,
since these contaminants were found beneath several management
sites within the land treatment facility, we question Shell's
explanation. Furthermore, many of these contaminants are also
present in the soil-pore water, which could not be attributed to
cross-contamination during coring activities.
Detecting Migration at the Earliest Practicable Time
We have concluded that Shell has failed to meet the
requirements of 40 CFR §268.6(a)(4). Specifically, Shell has
stated in the petition that ground-water monitoring wells are not
part of the no-migration monitoring plan. Shell's determination
is inconsistent with 40 CFR §268.6(a)(4) which requires a
monitoring plan that detects migration at the earliest
practicable time. In addition, Shell has not provided any
ground-water monitoring data more current than 1985. Due to
Shell's failure to provide this data, the petition is incomplete
and significant amounts of information and clarification would be
needed to complete the petition. However, because the technical
basis for denial already exists, we are not requesting you to
provide further information.
It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register. If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions scheduled
to be effective November 8, 1990. This letter should be
forwarded to the following address within two weeks of the date
of receipt of today's correspondence:
Patricia Conn, Acting Chief
Assistance Branch (OS-343)
Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register*
-------
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
Attachments
cc: Michael Gearheard, Region X
Carrie Sikorski, Region X
Kim Anderson, Washington DOE
Patricia Cohn, PSPD, OSW
James Michael, PSPD, OSW
Terry Keidan, AB, PSPD, OSW
-------
Attachment 1
Soil-Pore Results
April! 1,1987
Antimony
July 23, 1987
Antimony
OCt19, 19b7
Antimony
Jan 20, 1988
Antimony
May 1989
Antimony
September 1989
Antimony
December 1989
Antimony
Benzene
Benzo(a)anthracene
Benzo(b)fluoranthene
Benzo(k)fluoranthene
Chrysene
March 1990
Antimony
Benzene
Units
mg/l
mg/l
mg/l
mg/k
mg/l
mg/l
mg/l
mg/l
mg/l
mg/l
mg/l
mg/l
mg/l
mg/l
Lysimeter
1
0.047
0.05
0.0017
0.0022
0.0022
0.0072
1.2
2
0.012
0.064
0.038
3
•0.65
•0.78
0.4
4
0.3
5
0.77
0.32
0.7
0.8
0.5
6
0.3
7
8
'Composite sample with lysimeter 5
- Health-based levels:
Antimony » 0.01 mg/l
Benzene * 0.005 mg/l
Benzo(a)anthracene » 0.0002 mg/l
Benzo(b)fluoranthene « 0.0002 mg/l
Benzo(k)fluoranthene » 0.0002 mg/l
Chrysene • 0.0002 mg/l
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1990(12)
NUV 8 1990
Mr. Joel Rich
Sinclair Oil Company
902 West 25th Street
Tulsa, OK 74107
Re: No-Migration Petition submitted for Sinclair Oil Company,
Walnut Grove Land Treatment Facility, Tulsa, Oklahoma
Dear Mr. Rich:
I am writing in regard to your June 14, 1990 "no-migration"
petition, which requests a variance under 40 CFR §268.6 to allow
Sinclair Oil Company to continue the land treatment of restricted
wastes (EPA Hazardous Waste Nos. K049, K050, K051 and K052) at
the Walnut Grove land treatment facility in Tulsa, OK. We have
completed an initial review of the petition for overall
administrative and technical completeness. As you know, the
statute establishes a very strict standard for no-migration
variances. The standard to be met requires demonstration of no
migration (to a reasonable degree of certainty) of hazardous
constituents beyond the unit boundaries. Based on our evaluation
of the petition, we have concluded that Sinclair's Tulsa facility
does not meet that stringent standard. As a result, we intend to
dismiss your petition.
It is our policy to dismiss petitions that contain
deficiencies which require more than six months for the
petitioner to correct, or that show evidence clearly indicating
releases of hazardous constituents to environmental media have
already occurred. Our decision to dismiss your petition is based
on the present groundwater monitoring system not being able to
detect migration at the earliest practicable time as required by
the Agency's no-migration petition requirements (see 40 CFR
§268. 6 (a) (4) ) and that soil-pore data provided in the petition
indicate that releases have already occurred at the land
treatment facility.
First, EPA's review of the Groundwater Assessment Plan and
the Third Quarterly Progress Report of the RFI Workplan revealed
that the current groundwater monitoring system is inadequate to
JeLeil the miyiaLiou u£ ha£B.U!iaiLiMejinJtiteuenfej tvan the Walnut
"
.1
u
.M
.1 L .nL iCT..? J!lr..l lx=.L i^UA^-LL^^Ll- Ll...c
IA w |ai> w**» v-<4^ * *w» *• £«4{«w wxwaw^^ wxtuc .
-------
Groundwater Assessment Plan was required by a Consent Agreement
between Oklahoma State Department of Health (OSDH) and Sinclair
on April 9, 1990 because of non-compliance with the land
treatment facility's (LTF) permit. The LTF's background
groundwater monitoring well (WTP-4) is located in a solid waste
management unit (SWMU-C) and is also being affected by a
hydrocarbon plume. To come into compliance, Sinclair agreed to
expand the groundwater sampling and analysis plan to meet the
requirements of 40 CFR §270.14(c)(4). Specifically, Sinclair
must develop a plan capable of determining the extent of
migration of hazardous constituents into the groundwater and the
background concentration of all Appendix IX constituents detected
at the point of compliance. A plan has not yet been approved by
OSDH. In addition, the Third Quarterly Progress Report states
that the existing upgradient and downgradient monitoring wells at
the Walnut Grove facility may not comply with EPA's Technical
Enforcement Guidance Document (TEGD) well installation and
completion requirements. Further investigation is required to
determine if the wells are in compliance.
Second, lead has been detected in the soil-pore water
monitored at the land treatment unit. Sampling analysis data
from all the lysimeters at the walnut Grove facility (WGL-1, WGL-
2, WGL-3, WGL-4, WGL-5, and WGL-6) from 1981 through 1988 show
concentrations above the health-based level (0.05 mg/L) for lead.
More recent data were not provided in the petition. The sampling
analysis data provide evidence that migration has already
occurred beyond the unit boundary at hazardous concentrations.
The effect of our dismissal will be to close your petition
file. If you disagree with our intent to dismiss your petition,
you may submit a letter explaining why you believe a dismissal is
not warranted. If we do not receive such correspondence within
two weeks from the date you receive this letter, the dismissal of
your petition will become effective. You may choose to submit a
new petition for this land treatment facility in the future, once
you have an approved plan for a groundwater monitoring system in
compliance with 40 CFR §265 and §270 requirements. However, the
evidence that releases of hazardous constituents have migrated
beyond the unit boundary would serve as the technical basis for
the development of a proposed Federal Register denial of the
petition.
If you have any questions regarding the dismissal of your
petition or require additional information, please contact Jim
Michael of my staff at (202) 382-2231.
Sincerely,
Don R. Clay
Assistant Administrator
-------
cc: Patricia Cohn, PSPD, OSW
James Michael, PSPD, OSW
Terry Keidan, PSPD, OSW
Bill Honker, Region VI
Bill Gallagher, Region VI
-------
bcc: Athena Rodbell, PSPD, OSW
Richard Kinch, WMD, OSW
Kathy Stein, OW
Nikki Roy, WMD, OSW
Howard Finkel, ICF, Incorporated
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1990(13)
NOV 8
Mr. R. B. Sheldon
Manager
Amoco Casper Refinery
P.O. Box 160
Casper, Wyoming 82602
Re: No-Migration Petition submitted for Amoco's Casper Refinery
Land Treatment Unit (F-90-NACP-FFFFF)
Dear Mr. Sheldon:
I am writing in regard to your October 24, 1989 "no-
migration" petition, which requests a variance under 40 CFR
§268.6 to allow Amoco Oil Company to continue the land treatment
of restricted wastes (EPA Hazardous Waste Nos. K049 and K051) at
Amoco's Casper Refinery land treatment unit (LTU). After a
careful review of your petition, we have concluded that your
facility does not meet the standard for a no-migration finding.
Therefore, we will recommend to the Assistant Administrator for
Solid Waste and Emergency Response that the petition be denied.
Our decision to recommend denial of the petition regarding
the land treatment facility is based on two main concerns;
• Ground-water monitoring data indicate that hazardous
constituents hav« already migrated beyond the unit
boundaries.
• The ground-water monitoring system for the land
treatment facility is inadequate for the purpose of a
no-migration variance because it will not be able to
detect migration at the earliest practicable time due
to the presence of hazardous constituents beneath the
land treatment units.
The details of our concerns are described below.
-------
Presence of Hazardous Constituents Below the Treatment Zone
Our review of Amoco's 1989 ground-water monitoring report
for the LTU submitted subsequent to its petition indicates that
migration of hazardous constituents beyond the unit boundaries
has already occurred. Attachment 1 indicates that exceedance
criteria values were surpassed on 54 occasions, and, on 11
occasions, concentrations surpassed both the exceedance criteria
and the health-based level for the following analytes: antimony,
beryllium, chromium, and lead. Respectively, the maximum
downgradient concentration as compared to the health-based level
for each metal is (in mg/1): 0.26 vs. 0.005, 0.03 vs. 0.002,
0.327 vs. 0.035, and 0.07 vs. 0.002. Therefore, we can only
conclude that these data provide evidence of migration from the
unit.
Benzene was also found above the health-based level of 5
ug/1 in downgradient well LF-43 during the second and fourth
quarters at concentrations of 17 and 6 ug/1, respectively.
Because benzene was not reported in any of the upgradient wells,
we have concluded that benzene has migrated beyond the unit
boundaries.
Detecting Migration at the Earliest Practicable Time
We believe that Amoco is unable to detect migration from the
treatment unit to the ground water at the earliest practicable
time and therefore has failed to meet the requirements of 40 CFR
§268.6(a)(4). Specifically, we are concerned that Amoco will be
unable to determine the occurrence of migration directly beneath
the LTU and that Amoco has not identified an acceptable method of
differentiating between "background" contamination and releases
from the LTU.
Analysis of ground-water monitoring data indicates the
presence of contaminants in upgradient, as well as downgradient,
wells near the LTU. In addition, Amoco has suggested that prior
tank farm activities in the vicinity of the LTU, particularly on
the eastern side, may contribute to downgradient contamination.
Several problems arise from these conditions which contribute to
the deficiency of Amoco's monitoring program.
Amoco speculates that petroleum contamination in the ground
water and soils both upgradient and downgradient of the LTU (and
The RCRA permit for the facility establishes exceedance
criteria for compliance purposes; these include
"critical values" for metals and "reporting limits" for
organics (page 6).
-------
possibly beneath the plots as well) is derived from leakage from
petroleum storage tanks that previously occupied the area.
Amoco, however, has provided neither analytical results that
describe the possible source(s) nor an adequate plan to
differentiate releases from the LTU from such a source. Because
the constituents of a weathered petroleum product plume would
likely be very similar to a release from the LTU, it would be
difficult to discern one from the other. Furthermore, since the
concentration of a" contaminant from an upgradient source would be
higher closer to the source, the dilution effect as the plume
moves downgradient would likely mask concentrations due to a
release from the LTU, making a statistical comparison
meaningless.
Amoco has suggested that because the ground-water samples
show similar characteristics, they are most likely derived from a
common, upgradient source. As noted by Amoco, similar
characteristics are to be expected in the various fractions of
crude and refined oil found within the refinery. However, the
samples from the downgradient wells indicate a wider variety of
benzene, ethylbenzene, toluene, and xylene than the upgradient
samples, an observation that is contrary to what would be
expected from a common source.
Completeness of Petition
Finally, we have found that the petition is incomplete and
that information and clarification, in areas beyond those
highlighted above, would be needed to complete the petition.
However, because of the problems noted above, we believe we have
enough information at this time to move toward a denial of your
petition.
It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register. If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions scheduled
to be effective November 8, 1990. This letter should be
forwarded to the following address within two weeks of the date
of receipt of today's correspondence:
Patricia Cohn, Acting Chief
Assistance Branch (OS-343)
Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, S.W. •
Washington, D.C. 20460
-------
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register.
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
Sincerely,
enit, Deputy Director
of Solid Waste
Attachment
cc: Carol Campbell, Region VIII
Felix Flechas, Region VIII
Patricia Conn, PSPD, OSW
James Michael, PSPD, OSW
Terry Keidan, PSPD, OSW
-------
Attachment 1
SUMMARY OP DOWNGRADIENT GROUND-WATER MONITORING DATA
AMALVTE
Antimony
ArMnie
Beryllium
Cobalt
Cadmium
Chromium
Copper
Lead
Mercury
Selenium
Silver
Vanadium
Zinc
Benzene
Ethylbenzene
Toluene
Xylene
2-Methyl
naphthalene
Naphthalene
2.4-Oimethyl
pn^ool
>
EXCEEOANCE
CRITERIA'
3
1
10
13
3
3
8
9
2
2
1
> EXCEEOANCE
CRITERIA AND
MCI*
3
3
1
4
INDETERMINATE1
20
17
9
21
8
7
LOW
CONCENTRATION4
9
5
4
3
1
1
3
The RCRA pern* for the facility eetabttthee 'exeeedance criteria' for contaminaTO that include critical value* for
inorganic* and reporting limto for organfee. Thie column trtowe the number of «amplee collected from downgradleni
welle that violated the exeeedence criteria for a particular analyte. Violation* of both the exceedenee criteria and the
MCL are counted eeoaratety.
Number* in (hie column reflect vwtartoM of both the exceedenee criteria and the MCL
Contaminant loveie were reported only aa lea* than (a given value).* and II cannot be i
higher or lower than the exceedenee criteria and/or MCL
Although not In vtelatten of axeeedenee <
indicating that migration ia taking pteoa.
i or MCL-
I ifl ttM
-------
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1990(14)
>* WASHINGTON, D.C. 20460
office, of
SOLID WASTE AND EMERGENCY RESPONSE
Mr. Garth Dull, Director
Department of Transportation
State of Nevada
1263 South Stewart Street
Carson City, Nevada 89712
Dear Mr. Dull:
Thank you for your letter of November 21, 1990, requesting a
written confirmation that the asbestos/lead/soil/debris material
on property intended for highway construction is classified as
inorganic solids debris. In previous letters, you have described
this material as lead dross, concrete hooker cell, metal drums,
masonry and refractory bricks, scrap metal, carbon anode blades,
and concrete pipes.
The Environmental Protection Agency (EPA) has defined
"inorganic solids debris" as wastes contaminated with
characteristic metals that are nonfriable and that do not pass
through a 9.5-mm sieve tray. These wastes fall into eight
classifications, such as bricks, metal cans, metal pipes, and
scrap metal. Based on the description you provided, your waste
falls under the inorganic solids debris treatability group. EPA
has determined that this treatability group has a two-year
capacity extension of the effective date of the land disposal
restrictions. Therefore, this material currently does not need
to be treated to comply with the treatment standard for lead, and
can be disposed of in a Subtitle C landfill that meets minimum
technological requirements.
If you have further questions, please do not hesitate to
call Richard Kinch at (703) 308-8434.
Sincerely yours,
Sylvia K. Lowrance, Director
Office of Solid Waste*
-------
9551.1990(15)
DEC 20 S90
Mr. Douglas MacMillan, Director
Hazardous Waste Policy
National Solid Wastes Management Association
Suite 1000
1730 Rhode Island Aye., N.W.
Washington/ DC 20036
Dear Mr. MacMillan:
This letter responds to your inquiry dated October 11, 1990
about several aspects of the Third Third land disposal
restrictions final rule. Your letter includes questions about
the following topics: lab packs, inorganic solid debris,
certification/notification requirements, and the disposal of DOOI
ignitable wastes. Responses to the specific questions about each
of these topics are presented below.
1. Lab Packs
Your question concerns the language in 40 CFR 264.316(f) and
40 CFR 265.316(f). You refer specifically to perceived
contradictions between the first and second sentences of these
paragraphs; however, it is assumed that you are actually
concerned with the language of the second and third sentences
which specifies that "[p]ersons who incinerate lab packs
according to the requirements in 40 CFR 268.42(c)(l) may use
fiber drums in place of metal outer containers. Such fiber drums
must meet the DOT specifications in 49 CFR 173.12 and be
overpacked according to the requirements in paragraph (b) of this
section." In particular, you request clarification of whether
this language requires fiber drums to be overpacked in metal
drums. It is assumed that your confusion stems either from the
DOT specifications in 49 CFR 173.12, or the overpacking
requirements in 40 CFR 264.316(b) and 40 CFR 265.316(b). The
language of the DOT specifications and the §§ 264.316(b) and
-------
265.316(b) does not require overpacking of fiber drums in metal
drums. The first sentence of §§ 264.316(b) and 265.316(b)
(n[t]he inside containers must be over-packed in an open head DOT-
specification metal shipping container") does not apply because
§§ 264.316(f) and 265.316(f) clearly state that "[p]arsons who
incinerate lab packs according to the requirements in 40 CFR
268.42(c)(l) may use fiber drums in place of metal outer
containers." The §§ 264.316(b) and 265.316(b) language that does
apply, however, is the requirement to pack a sufficient quantity
of absorbent material around the inner containers to completely
absorb all of the liquid contents of the inside containers,
making the outer container full after packing.
As you mention in your letter, the preamble language on page
22631 of the Third Third final rule explains the Agency's
decision to allow fiber drums to be used as outer containers for
lab packs being incinerated according to the requirements in
40 CFR 268.42(c)(1). The language of §§ 264.316(f) and 265.316(f)
does not eliminate this decision by otherwise requiring the fiber
drums to be overpacked in metal drums.
2. Containers
You request clarification of why containers are included in
the "inorganic solid debris" definition. You also ask when an
empty container would be judged to carry a characteristic of
hazardous waste.
By way of background, inorganic solid debris is defined in
40 CFR 268.2(g) as nonfriable inorganic solids contaminated with
D004 - D011 hazardous wastes that are incapable of passing
through a 9.5 mm standard sieve; and that require cutting, or
crushing and grinding in mechanical sizing equipment prior to
stabilization; and, are limited to certain types of debris
specified in subsequent paragraphs. Paragraph (g)(6) of
§ 268.2 includes metal cans, containersf drums, or tanks in the
definition of inorganic solid debris.
As a further point of background, the answers to your
questions are impacted by whether the container being discussed
is empty as defined at 40 CFR 261.7(b). Under the § 261.7(b)
provisions, a container that has held hazardous waste (other than
a compressed gas or an acute hazardous waste) is "empty" if it
meets certain criteria. All wastes must have been removed that
can be removed using the practices commonly employed to remove
materials from that type of container. To assure that all waste
has been removed, there may be no more than 2.5 centimeters (one
inch) of residue remaining on the bottom of the container or
inner liner; or no more than 3 percent by weight of the total
capacity of the container remaining in the container or inner "
liner if the container is less than or equal to 110 gallons in
size, or no more than 0.3 percent by weight of the total capacity
-------
of the container remaining in the container or inner liner if the
container is greater than 110 gallons in size.
In response to your first question, containers are included
in the definition of inorganic solid debris to cover the possible
scenario of a container that has been discarded by means of land
disposal (as defined in § 268.2), that does not meet the
§ 261.7(b) definition of empty, and that is contaminated with a
characteristic metal waste. This scenario could occur, for
instance, during an excavation at a corrective action site. A
container might be uncovered that is damaged (e.g., crushed) so
that the hazardous waste within it cannot be removed sufficiently
to meet the § 261.7 (b) definition of empty'. Such a container
(i.e., including its contents) is a hazardous waste subject to
the land disposal restrictions if it is subsequently land
disposed. Furthermore, it is likely that the disposed container
would be considered contaminated debris (such a determination nay
depend upon site-specific conditions best made by an authorized
State or EPA Regional representative). If the waste
contaminating this disposed container is a characteristic metal
waste (0004 - D011), the container would likely meet the
§ 268.2(g)(6) criteria of inorganic solid debris, and would thus
be subject to a national capacity variance until May 8, 1992 (see
§ 268.35(b)).
In response to your second question, a container meeting the
S 261.7(b) definition of empty may be judged to be a
characteristic metal waste under two scenarios. In the first
scenario, a container that has never held any hazardous waste may
be a characteristic waste if: (1) it is being discarded; and, (2)
if the container is in itself a characteristic waste.
In the second scenario, an empty container (as defined in
§ 261.7(b)) may be a characteristic waste if: (1) it is being
discarded; and, (2) if the container is in itself a
characteristic waste. It should be noted, however, that any
residue remaining in the container is exempt from regulation
under the provisions of § 261.7(a) that states that N[a]ny
hazardous waste remaining in either (i) an empty container or
(ii) an inner liner removed from an empty container, as defined
in paragraph (b) of this section, is not subject to regulation
under Parts 261 through 265, and Parts 268..."
3. Certifications
You request clarification of the record keeping requirements
for a particular scenario: A waste that the generator determines
(based on process knowledge) does not meet the treatment standard
is sent to a treatment facility. The treatment facility
determines the waste does meet the treatment standard. ' You did
not suggest how such a determination was made. Your question is,
how would the record keeping requirements be affected?
-------
In this particular scenario, the treatment facility should
analyze the waste in order to determine that the waste meets the
treatment standard according to the provisions of their waste
analysis plan. It should be noted, however, that there is no
requirement that treatment facilities analyze each shipment of
waste received, except as specified in their waste analysis plan
(see § 268.7(b). In this particular scenario, however, the
generator has made the determination that the waste must be
treated based on his knowledge of the waste. The treatment
facility is countering the generator's determination with a
determination that* the waste meets the treatment standard as
generated; therefore, the Agency believes that it is appropriate
to ask the treatment facility to support their determination with
analytical data. The treatment facility also must complete a
certification that the waste met applicable treatment standards
as generated (see § 268.7(a)(2)(ii), supported by the general
principle expressed in § 268.7(b)(6) requiring treatment
facilities to comply with notice and certification requirements
applicable to generators).
The treatment facility must send the waste analysis data
(see § 268.7(b)(4)(iv)), the certification, and, a notification
(either the generator's notification may be sent, or the facility
may create a new notification) to the disposal facility. Copies
of the waste analysis data, the generator's notification (as well
as the treatment facility's notification if a new notification
was created), and the certification must be kept as records in
the treatment facility's files.
4. Notification/Certification
A scenario was presented of a TSD company that has a sister
company on adjacent property that recycles "side-stream11 and
"off-spec" chemicals and other wastes containing recoverable
amounts of organics by means of a custom distillation process.
This process generates still bottoms and wash waters that are
subject to the land disposal restrictions. These restricted
wastes are piped directly back to tanks at the TSD facility,
sometimes on an intermittent basis, sometimes continuously. The
question is asked: How must these piped transfers of hazardous
wastes from the recycler to the TSD be handled from the
perspective of notification/certification compliance?
Even though the recycling facility and the TSD facility are
sister companies on adjacent property, they would have been
assigned different EPA identification numbers and are thus
considered separate facilities. Therefore, the waste that is
piped to the TSD facility (regardless of whether it is on a
continuous or an intermittent basis) is subject to the record
keeping requirements of § 268.7.
The recycling facility would be subject to the generator
requirements of § 268.7(a), which specify that a notification
must be sent with each shipment of waste (in this case, from the
-------
recycling facility to the TSD facility). The TSD facility must
comply with the requirements of § 268.7(b). Questions on how
frequently the required paperwork should be sent from the
recycling facility to the TSD (i.e., what constitutes a
"shipment") should be directed to the EPA Regional land disposal
restrictions contact.
5. pool
The question is whether 40 CFR 264.312 allows for the land
disposal of a D001 waste. Until promulgation of the Third Third
final rule on May 8, 1990, 40 CFR 264.312 (and § 265.312) set out
special management requirements for ignitable or reactive wastes
that were disposed in a surface impoundment, waste pile, land
treatment unit, or landfill. On page 22553 of the final rule,
however, the Agency explained that these management requirements
are superseded by the treatment standards promulgated in the
Third Third final rule. This means that "[facilities handling
ignitable and reactive wastes will have to comply with the
promulgated treatment standards for these wastes in order to land
dispose them." The Agency made changes to the regulatory
language of §§ 264.312 and 265.312 in the Third Third final rule
to incorporate the requirement that the treatment standards for
ignitable and reactive wastes must be met prior to land disposal.
Furthermore, the Agency's intent is clearly expressed in the
preamble (55 FR 22553).
Therefore, land disposal is allowed only for those D001
wastes that meet the treatment standard. (The treatment standard
for 0001 wastes containing less than 10% total organic carbon
(TOC): deactivation; for D001 containing greater than 10% TOC:
incineration or fuel substitution; see 40 CFR 268.42, Table 2.)
I hope you find these answers to be helpful. If you have
any further questions, please feel free to contact
Matthew A. Straus at (703) 308-8414.
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Waste
-------
9551.1990(16)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 1990
1. LDR Requirements During National Capacity Variances
During a corrective action removal, a RCRA permitted treatment facility generates
a contaminated soil that is characteristic for arsenic (D004). The generator
determines that the waste has a treatment standard established in 40 CFR 268.41 of
the Land Disposal Restrictions (LDR) Third Third Final Rule. (55 FR 22520)
However, Section 26835(e) of the final rule also establishes a 2-year variance from
the land disposal prohibitions for D004 nonwastewaters due to insufficient
treatment capacity. What LDR requirements remain in effect during the period in
which a waste is granted a national capacity variance?
Section 300400(2) of RCRA provides EPA with the authority to grant national
capacity variances from the statutory effective dates upon which land disposal
prohibitions become effective if there is insufficient alternative treatment,
recovery or disposal capacity for the wastes subject to the prohibition. In
determining whether a variance is warranted, EPA compares the nationally
available treatment capacity that will be in operation on the prohibition
effective date with the volume of wastes generated. If a significant shortage
exists, an alternate effective date will be established based on the earliest date
such capacity will become available. (55 FR 22526)
-------
1. LDR Requirements During National Capacity Variances (Cont'd)
Although a national capacity variance temporarily extends prohibition effective
dates, it does not supersede the requirements applicable to hazardous wastes
that are "restricted".'(see 55 FR 22592) Effective May 8,1990, all hazardous
wastes, except those identified or listed after the enactment of HSWA, are
"restricted" and therefore subject to certain provisions. (55 FR 22521) These
include three major requirements. First, generators of such restricted wastes
must comply with applicable waste analysis and recordkeeping requirements
established in Section 268.7, including the special notifications found at
268.7(a)(3) for wastes subject to a national capacity variance that are sent off-«'fe
for treatment, storage or disposal. (53 FR 31208)
Second, in addition to fulfilling relevant recordkeeping requirements,
generators of hazardous wastes subject to a national capacity variance must
evaluate their waste against the California List prohibitions. (55 FR 22529) The
California List establishes treatment standards and land disposal restrictions for
certain liquid wastes containing free cyanides, metals, corrosives and PCBs, and
for HOCs in either solid or liquid form [See Section 26S.32 and RCRA Section
3004(d)]. In the interim period in which a national capacity variance is in effect,
the California List requirements apply. (53 FR. 31118)
Finally, if the generator determines that no other land disposal prohibitions are
applicable, the waste may be managed in a landfill or surface impoundment
provided the waste is placed in a unit that meets the minimum technology
requirements set out in 268 J(h)(2). After the national capacity variance has
expired, such restricted hazardous waste may be land disposed only if the
applicable treatment standard is attained or disposal occurs in a unit that
satisfies the "no migration" demonstration found at 40 CFR 268.6. (55 FR 22521)
Please note, however, for wastes that are subject to more than one treatment
standard, that during a national capacity variance for one of the wastes, the
treatment standards for any of the other waste codes that have not received
such a variance must be met (55 £R 22660)
Source: Rhonda Craig, OSW (703)308-8451
Research: Stephen Buchanan
-------
UNITED STATES ENVIRONMEMTAU PROTECTION AGEMCY
9551.1991(01)
JAN 3 -
Mr. John R. Kampfhenkel
Chief Environmental Engineer
Koch Refining Company
P.O. Box 2608
Corpus Christi, Texas 78403
Re: No-Migration "Petition submitted for Koch Refining's Corpus
Christi, Texas Land Treatment Unit (F-90-NKCP-FFFFF)
Dear Mr. Kampfhenkel:
I am writing in regard to your April 26, 1990 "no-migration"
petition, which requests a variance under 40 CFR §268.6 to allow
Koch Refining Company (Koch) to continue the land treatment of
restricted wastes at Koch's Corpus Christi, Texas land treatment
unit (LTU). After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no-
migration variance. Therefore, we will recommend to the
Assistant Administrator for Solid Waste and Emergency Response
that the petition be denied.
Our decision to recommend denial of the petition is based on
the following concerns:
• Soil-pore and soil-core monitoring indicate that
hazardous constituents have already migrated beyond the
unit boundary.
• Ground-water monitoring for vanadium indicates that
this hazardous constituent has already migrated beyond
the unit boundary.
Presence of Hazardous Constituents Below the Treatment Zone fBTZl
Soil-pore and soil-core monitoring data provided in Koch's
petition indicate that migration of hazardous constituents below
the treatment unit has already occurred. Specifically, analyses
of soil pore liquid samples collected during August and September
of 1988 and in February, April, May, June, and October of 1989
indicate the presence of beryllium, cadmium, chromium, lead,
nickel, selenium, toluene, benzene, styrene, 2-butanone, 1,2-
dichloroethane, and ethyl benzene in excess of their respective
-------
-2-
health-based levels used in no-migration decision-making. The
results of these analyses are presented in Attachments 1 and 2.
Analyses of soil core monitoring data collected in December
1989 indicate that beryllium was detected at concentrations
exceeding the health-based level (HBL) of 0.2 mg/kg for soil
ingestion in Bores 1, 2, 3, 4, and 6. Antimony was also detected
at a concentration, exceeding the HBL of 30 mg/kg for soil
ingestion in Bore 6 during December 1989.(See Attachment 3.)
Furthermore, Attachment 3 also shows that several organic
constituents were detected in the BTZ. Concentrations of
benzo(a)pyrene (6.5 mg/kg) and methyl chrysene (4.4 mg/kg) were
detected in Bore 1 above their respective HBL'a of 0.055 mg/kg
for soil ingestion. Oil and grease levels in soil bores averaged
4,500 mg/kg for Bore 1 and 193 mg/kg for Bore 4 in December 1989.
The individual values for the BTZ samples from Bore 1 were 1,900
mg/kg (5.0-5.5 feet); 7,000 mg/kg (5.5-6.5 feet); and 4,600 mg/kg
(6.5-7.5 feet). The presence of benzo(a)pyrene and methyl
chrysene and elevated levels of oil and grease beneath the
treatment zone further demonstrate that hazardous constituents
have migrated below the treatment unit.
Ground-Water Monitoring Data
Ground-water monitoring data presented in Koch's petition
indicate that migration of hazardous constituents to the ground
water has already occurred. Specifically, a review of the August
1988 ground-water monitoring data indicate the presence of
vanadium in downgradient wells LE-3 (0.39 mg/1) and LE-5 (0.28
mg/1) in excess of the HBL (0.24 mg/1) used in no-migration
petition decision-making. (See Attachment 4.)
In addition, total organic carbon (TOC) levels were
significantly higher in downgradient wells LE-3, LE-4, LE-5, and
LE-6 than in upgradient wells in September of 1988. However, we
are unable to determine whether organics are present at levels of
concern because Koch did not provide a fractional analysis of the
constituents in the TOC samples. Lastly, although the difference
between the downgradient and upgradient monitoring wells did not
exceed the health-based levels, the downgradient concentrations
for arsenic (LE-3 and LE-4), mercury (LE-6), and selenium (LE-6)
did exceed the upgradient concentrations during August of 1988.
Incomplete Petition
Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the problems discussed above, we believe we
have sufficient information at this time to move toward a denial
of your petition.
-------
-2-
health-based levels used in no-migration decision-making. The
results of these analyses are presented in Attachments 1 and 2.
Analyses of soil core monitoring data collected in December
1989 indicate that beryllium was detected at concentrations
exceeding the health-based level (HBL) of 0.2 mg/kg for soil
ingestion in Bores 1, 2, 3, 4, and 6. Antimony was also detected
at a concentration, exceeding the HBL of 30 mg/kg for soil
ingestion in Bore 6 during December 1989.(See Attachment 3.)
Furthermore, Attachment 3 also shows that several organic
constituents were detected in the BTZ. Concentrations of
benzo(a)pyrene (6.5 mg/fcg) and methyl chrysene (4.4 mg/kg) were
detected in Bore 1 (December 1989) above their respective HBL's
of 0.055 mg/kg for soil ingestion. Oil and grease levels in two
of the soil bores averaged 4,500 mg/kg for Bore 1 and 193 mg/kg
for Bore 4 in December 1989. The individual values for the BTZ
samples from Bore 1 were 1,900 mg/kg (5.0-5.5 feet); 7,000 mg/kg
(5.5-6.5 feet); and 4,600 mg/kg (6.5-7.5 feet). The presence of
benzo(a)pyrene and methyl chrysene and elevated levels of oil and
grease beneath the treatment zone further demonstrate that
hazardous constituents have migrated below the treatment unit.
Ground-Water Monitoring Data
Ground-water monitoring data presented in Koch's petition
indicate that migration of hazardous constituents to the ground
water has already occurred. Specifically, a review of the August
1988 ground-water monitoring data indicate the presence of
vanadium in downgradient wells LE-3 (0.39 mg/1) and LE-5 (0.28
mg/1) in excess of the HBL (0.24 mg/1) used in no-migration
petition decision-making. (See Attachment 4.)
In addition, total organic carbon (TOC) levels were
significantly higher in downgradient wells LE-3, LE-4. LE-5, and
LE-6 than in upgradient wells in September of 1988. However, we
are unable to determine whether organics are present at levels of
concern because Koch did not provide a fractional analysis of the
constituents in the TOC samples. Lastly, although the difference
between the downgradient and upgradient monitoring wells did not
exceed the health-based levels, the downgradient concentrations
for arsenic (LE-3 and LE-4), mercury (LE-6), and selenium (LE-6)
did exceed the upgradient concentrations during August of 1988.
Incomplete Petition
Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the problems discussed above, we believe we
have sufficient information at this time to move toward a denial
of your petition.
-------
-3-
It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register. If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions. This
letter should be fprwarded to the following address within two
weeks of the date of receipt of today's correspondence:
Patricia Cohn, Acting Chief
Assistance Branch (08-343)
U.S. Environmental Protection Agency
401 M street, s.W.
Washington, D.C. 20460
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register.
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
Attachments
cc: Bill Honker, EPA Region VI
Tony Robledo, EPA Region VI
Minor Hibbs, Texas Water Commission
Patricia Cohn, PSPD, OSW
James Michael, PSPD, OSW
-------
-4-
bcc: Terry Keidan, AB, PSPD, OSW
Jeffrey Gaines, AB, PSPD, OSW
Dave Reeves, AB, PSPD, OSW
Richard Kinch, WMD, OSW
Kathy Stein, OE
NiWci Roy, WMD, OSW
Howard Finkel, ICF Incorporated
-------
ATTACHMENT 1
Soil-Pore Liquids - Inorganic Constituents (mg/1)
a/aa
LY-1
LY-5N
9/88
LY-1
LY-2N
LY-3N
LY-4N
LY-5N
LY-5S
11/88
LY-2N
LY-5S
2/89
LY-2N
LY-4N
LY-5N
3/89
LY-2N
LY-3N
LY-4N
LY-5N
LY-5S
4/89
LY-4N
LY-5N
6/89
LY-2N
LY-3N
LY-5N
LY-SS
10/89
LY-3S
HBLs
AS
0.89
0.0072
0.19
0.013
0.021
0.02
0.013
0.069
0.029
0.047
0.05
Ba
^
0.04
0.23
0.07
0.16
0.24
0.14
0.19
0.018
0.021
0.047
0.066
1
Be
0.021
0.0093
0.0093
0.001
Cd
0.03
0.19
0.13
0.046
0.12
0.03
0.013
0.01
Cr
0.11
0.075
0.097
0.055
0.092
0.059
0.05
Pb
0.36
0.17
0.076
0.099
0.05
Hfl
0.13
0.0055
0.053
0.0034
0.0045
0.0057
0.0069
0.0016
0.002
Ni
0.51
0.34
0.13
0.12
0.086
0.037
0.11
0.29
0.1
S«
0.019
0.09
0.018
0.011
0.0061
0.01
TOO
31
54
19
57
31
29
33
13
80
15
38
10
•LY-1 is the background lysimeter
-------
ATTACHMEKT 2
Soil-Pore Liquids - Organic Constituents (ug/1)
9/88
LY-2N
LY-3N
LY-5N
11/88
LY-2N
6/89
LY-2N
LY-3N
LY-5N
HBLs
Xylenet
4,200
28
9
8
5
19
10,000
Toluene
2.100
6
7
5
6
6
2,000
Benzene
1,600
6
5
Styrene
110
5
2-Butanone
14,000
,
2,000
1 ,2-Dichioroethan«
950
5
Ettiylbenzene
2,800
13
TOO
' Organic Constituents have not been found in the Background Lysimeter (LY-1)
-------
ATTACHMENT 3
Soil Core Data from the BTZ • LTU Expansion'-1*
Bore 6
(6/29/89)
pH (rang*) 9.1-9.4
Oil and Gr*as* (a*an) <10
Beryllium ~-
Antimony —
Bensme 13.0
Toluen* 13.0
l-M*thylnapthal*a*
Anthracene — •
B«nso(a)Pyr*a*
Methyl Chrysens
Ph*nanthr*n* •--
Bor* 1 Bor* 2
(12/14/89) (12/13/89)
8.1-8.2 7.9-8.0
4.500 <10
O.S1/0.686 0.3/0.8
—
—
...
4.3
4.2
6.5
4.4
24.0
Bor* 3 Bor* 4 Bor* 6
(12/13/89) (12/13/89) (12/13/89)
8.1-8.2 7.8-8.0
<10 193 <10
0.36/0.46 0.37/0.72 2.5/0.65
16.8/32e
:.. ...
—
...
—
...
—
...
These data are luematlted fteoj three aaoplea from three BTZ depths at each sell boriac: 5.0-5.5 £**t;
S.S-6.S r«*t; and 6.5-7.5 <**t. A total of 12 toil bores were taken durln* 1989 la the LTD Expansion.
Six core* «r* collected ia June 1989, *ad >iz core* •«• coll«ct«d in June 198*.
Althou«h units are net specified la Table »-l of the petition (V.I, pa«* 4*3 throuth *-13). .-. .1
t»aua*d that the data are r*port*d in units of m»/k$, with the exception of pfl and orsaniea :;i«r.;c
coacentratioas vers apparently reported as u«/k> in Table »-l and were converted to m«/k« for •..-.:>
•xhibit.
The values ia this rev represent the BTZ Been froa the three depths, followed by the Baziou* ••»'.*• ftao
the three BTZ depths.
-------
ATTACHMENT 4
Ground-Water Monitoring Data (ng/1)
8/88
LE-O
LE-1
LE-3
IE -4
LE-5
LE-6
9/88
LE-O
LE-1
LE-3
LE-4
LE-5
LE-6
1/89
LE-O
LJE-t
LE-3
LE-4
LE-S
LE-6
3/89
LE-O
LE-1
LE-3
LE-4
LE-S
LE-6
6/89
LE-O
LE-1
LE-3
LE-4
LE-5
LE-6
12/89
LE-O
LE*T;
LE-3
LE-4
LE-5
LE-6
HBL
TOC
9.1
ir
13
12
8.8
8.9
5.4
8.8
48
54
29
9.8
5.2
4.9
5.1
2.7
2.6
4.4
1.9
1
1.5
1.3
1.5
1.2
•:.:.. 2,1
3.4
1.5
1
2.4
B6
1
0.014
0.009
0.001
Cd
0.027
0.027
0.018
;.":::x- :• '
0.01
Ni
0.12:
0,12
0.055
0.12
0.055
0.11
0.078
0.078
0.05
0.17
aoea
0.084
0.084
0.15
0.084
0.073
0.1
Se
0.014
0.0056
0.0059
0.0092
0.019
0.01
V
0.39
0.28
0.029
0.044
0.044
0.057
0.029
01018
0.24
AS
0.01
0.0076
0.011
0.012
0.0093
0.009
HO
0.0007
0.0008
0.0008
0.0009
0.001
0.0008
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551.1991(02)
JAN I 7 1991
Mr. W. Thomas McCollough
Refinery Manager
Sun Refining and Marketing Company
P.O. Box 2039
Tulsa, Oklahoma 74102
Re: No-Migration Petition submitted for Sun Refining and
Marketing Company's Tulsa, Oklahoma land Treatment Facility
(F-90-NMSP-FFFFF)
Dear Mr. McCollough:
I am writing in regard to your March 16, 1990 "no-migration"
petition, which requests a variance under 40 CFR §268.6 to allow
Sun Refining and Marketing Company (Sun) to continue the land
treatment of restricted wastes at Sun's Tulsa, Oklahoma land
treatment facility (LTF). After a careful review of your
petition, we have concluded that your facility does not meet the
standard for a no-migration variance. Therefore, we will
recommend to the Assistant Administrator for Solid Waste and
Emergency Response that the petition be denied.
Our decision to recommend denial of the petition is based on
the following concerns:
Soil-pore monitoring indicates that benzene has already
migrated beyond the unit boundary.
Ground-water monitoring indicates that hazardous
constituents have already migrated beyond the unit
boundary.
The required minimum separation between the bottom of
the treatment unit and the top of the seasonally high
water table has not been demonstrated.
Air modeling shows concentrations of arsenic at the
unit boundary that exceed the allowable health-based
standard.
The details of our concerns are described below.
-------
-2-
Presenee of Hazardous Constituents Below the Treatment Zone fBTZ)
Soil-pore liquids monitoring data collected from lysimeter
14 indicate the presence of benzene (33.4 ppb) beneath the
treatment zone at concentrations above the health-based level
(HBL) of 5 ppb used in no-migration decision-making. Sun
explained that during the installation of lysimeter 14 (in March
1987), the borehole had been contaminated by a load of spent jet
fuel filter clay dumped nearby. We, however, question whether
the contamination can be attributed to nearby applied spent jet
fuel filter clay for the following reasons;
First, it stands to reason that if the borehole were
contaminated during the installation process, then the first-
quarter soil pore-water sample taken between March and April of
1987 should have shown high levels of benzene (which is very
mobile). However, elevated levels showed up only after the
third-quarter samples were taken in October 1987. (No second-
quarter data was provided in the tables.) Thus, the
contamination occurred at a later date rather than during initial
installation.
Secondly, the results from analyses of the spent jet fuel
filter clay reported benzene as "NP" (not present) and the
petition stated that "the other [non-hazardous, including the
spent jet fuel filter clay] wastes, in comparison, are
insignificant in oil/organic content and/or annual quantity
disposed of; the presence of various specific organic compounds
in these wastes would have little or no impact on the overall
soil/waste system at the LTF" (V.I, pages 4-11 and 4-15).
Therefore, Sun, in one instance claimed that they did not have to
analyze the non-hazardous wastes for organic constituents, yet in
another instance, claimed that the bore hole was contaminated by
the spent jet fuel filter clay.
Lastly, benzene has been detected in both background and
active LTF area lysimeters. (See Attachment I.) The continuous
detection of low levels of benzene, especially at lysimeter 15,
indicate that benzene has migrated below the treatment zone. We,
therefore, believe both that Sun has failed to demonstrate that
the benzene detected at lysimeter 14 is due to contamination and
that the presence of benzene in the soil-pore liquids clearly
demonstrates that this constituent has migrated below the LTF at
hazardous concentrations.
Ground-Water Monitoring and Detecting Releases at the Earliest
Extent Practicable
As shown in Attachment II, ground-water monitoring between
May 1984 and January 1990 indicate that barium, chromium,
mercury, lead, and benzene were detected at concentrations above
their respective health-based levels. Sun claims that these
-------
-3-
exceedences are attributable to naturally occurring levels,
laboratory error, or broken product lines running beneath the
LTF. We believe that Sun has failed to prove conclusively that
the migration did not, in part, result from LTF.operations.
Additionally, we believe that Sun has failed to meet the
requirements of 40 CFR §268.6(a)(4). Specifically, Sun has not
demonstrated that tjhe ground-water monitoring system at the LTF
is capable of detecting (and differentiating) releases at the
earliest extent practicable. Sun's 1990 annual report on ground-
water monitoring (dated July 19, 1990) presented a map showing
three pipelines buried approximately three feet below the ground
surface within the treatment zone of the Central treatment area
of the LTF. These pipelines transport a wide range of petroleum
products from crude oil to gasoline, jet fuel, and diesel. The
map also showed that the downgradient wells of the Central and
West areas are located adjacent to these pipelines. Sun stated
that these pipelines could leak and that several leaks, which
were indeed identified during 1989, could have influenced ground-
water monitoring results, as with MW32 where the concentration of
total organic carbon (TOC) has consistently increased from 20 ppm
in 1986 to 79 ppm in 1988.
The ramifications of the contamination from ruptured product
lines in regard to ground-water monitoring of the LTF are
unclear. Sun has not provided detailed analytical results that
describe the known contamination, nor have they proposed an
adequate plan whereby releases from the LTF can be differentiated
from the known contamination. Because the constituents of a
weathered petroleum product plume would be very similar to a
release from a LTF that contains petroleum wastes ( e.g.,
benzene, toluene, and xylene), it will be difficult to
differentiate between the two releases and therefore, conclude
that Sun's ground-water monitoring system will be able to detect
..constituent releases at the earliest extent practicable.
Maintaining Minimum Separation
Federal regulations require that the depth-to-ground water
at land treatment facilities be no less than three feet from the
bottom of the treatment zone to the seasonal high water table (40
CFR 264.27l(c)(2)). Based on the discussion below, we do not
believe that Sun has demonstrated that the required minimum
separation is maintained throughout the entire year.
Sun stated that the ground-water table can fluctuate up to
four feet in elevation in a year, and that the seasonal high
water table is more than eight feet below ground surface at the
LTF. Although Sun supported its claim by providing the ground-
water elevation profiles in Exhibits 3.3-1 to 3.3-3 (V.I, pages
3-28 to 3-30), the changes in ground-water table, as reported in
Exhibit 3.3-1, were based on observations recorded in a period
-------
-4-
from 1983 to 1984. We believe that data taken in tnis
short period is not sufficient to represent the long-term,
temporal variation of the water table beneath the LTF. In
addition, the average depths to ground-water table at MW15 and
MW17 were shown to be 8.2 feet and 8.5 feet, respectively (V.I,
Exhibit 3.3-2, page 3-29). since Sun has stated that the
potential fluctuations of the water table could be four feet over
the course of a year (or roughly ± two feet from the mean), it is
possible for the water table at these two wells to rise to an
elevation within six feet of the ground surface.
Furthermore, Exhibit 3.3-2 (V.I, page 3-29) presents average
depths to ground water using measurements made in August 1984,
May 1985, and December 1986. As stated above, the depth to
ground water during this period in the East LTF ranges between
8.2 and 8.5 feet. We note, however, that the petition stated
that the ground-water table is at the highest levels during April
- June (V.I, page 3-27). The petition also stated that the level
of the ground-water table fluctuates with rainfall. Because the
greatest amount of precipitation generally occurs during May,
June, and September, ground-water table elevation measurements
collected during these three months may show that the minimum
required separation of three feet between the bottom of the
treatment unit and the top of the seasonal high water table is
not maintained (V.I, page 3-33).__
We are also concerned that the aquifer beneath the LTF is
hydraulically linked to the Arkansas River, and the ground-water
table can be further affected by the water level variations in
the river. A 100-year flood could cause "underground flooding"
at. the LTF due to its proximity to the river and the moderately
permeable alluvial soils in the unsaturated zone. That is, the
excessive hydraulic head generated outside the levee by flood
waters could reverse the ground-water flow direction and cause
the water table to further rise beneath the LTF. Our concerns
are supported by Sun's acknowledgment that during heavy flooding
in October of 1986, the Arkansas River level was at the same
elevation as an abandoned waste site adjacent to the West unit
for at least a week, temporarily reversing the ground-water flow.
We, therefore, conclude that the minimum separation between the
treatment zone and the water table is affected by water level
variations occurring in the Arkansas River.
Air Modeling for Arsenic
Sun performed air modeling to predict the airborne
concentrations of arsenic at the unit boundary. This modeling,
based on historic and projected data, showed that arsenic would
be found at the unit boundary at a concentration of 1.2 x 10*4
Mg/m and 1.0 x 10 ng/m , respectively. Sun compared these
predicted concentrations to a health-based level (HBL) for
arsenic of 2.3 x 10 Mg/m (for inhalation) as reported in Table
-------
>.5-3 of the petition. However, the HBL value cited in the
jetition bv Sun is higher than that found in EPA's IRIS database
(7.0 x 10 M9/» ) • Since both the historic and projected
:oncentrations modeled for arsenic exceed the HBL of 7.0 x 10
ig/m3, Sun has failed to demonstrate that this constituent will
lot migrate at hazardous concentrations beyond the unit boundary*
Incomplete Petition
*>
Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the problems discussed above, we believe we
nave sufficient information at this time to move toward a denial
of your petition.
It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register. If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions. This
letter should be forwarded to the following address within two
weeks of the date of receipt of today's correspondence:
Patricia Cohn, Acting Chief
Assistance Branch (OS-343)
U.S. Environmental Protection Agency
401 H Street, S.W.
Washington, D.C. 20460
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register.
Any questions regarding our findings may oe submitted in
writing to Mr. James Michael of my staff.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
Attachments
cc: Patricia Cohn, PSPD, OSW
James Michael, PSPD, OSW
Fenton Rood, Oklahoma State Department of Health
Bill Honker, Region VI
-------
Soli-Pore Monitoring Utere Benzene nee Detected at •ecfcorotmd end Active Aree Ly»ie»tere
•enzene Concentration (ffb)
Monltorlns Period
Nerch-Aprll 1907
eeckcrowd lyeieBtere
LT-I W-5 IT-6 tY-16 U-17
0.97 12 0.5 0.6 0.8
Nonitorim Period
Nerch-Aprll 1987
Jura 1988
Jtfie 1989
Ai«ust 1989
October 1989
Active. Aree Lyeieetere
LV-2 LT-3 LT-4 LV-7 LV-8 LT-11 IT-U IT- 15 LT-18
0.8 0.8 0.7 1.2 0.6
3S.4
4.0 3.0 5.0
3.6 2.6
4.0 5.0
-------
ATTACMMENT I
Soil-Par* Monltorir« Mhore •enien* MM Detected at Background end Active Area Lyaiaeteni
Concentration
Konltorlm Period
March-Apr It 1987
Background Lyaiavtera
IT-1 11-5 l¥-6 IT-tt Lt-17
0.97 12 0.5 0.6 0.8
Monitoring Period
March-April 1987
June 1988
Jura 1989
August 1989
October 1989
Active Area Lyaiaetera
LV-2 tV-S Lf-4 IT-7 LT-8 IT- 11 LT-14 LV-tS LT-18
0.8 0.8 0.7 1.2 0.6
33.4
4.0 3.0 5.0
3.6 2.6
4.0 5.0
-------
UNITED STATES ENVTBOHhlEKTAL PROTECTION
9551.1991(03)
JAN 2 9 199!
Mr. David R. Chapman
Exxon Research and"Engineering Company
P.O. Box 101
Florham Park, NJ 07932-0101
Re: Exxon, Baytown, TX No-Migration Petition (F-91-NMEP-FFFFF)
Dear Mr. Chapman:
At our meeting, September 26, 1990, to discuss EPA's
technical evaluation of the no-migration petition submitted for
the Baytown Refinery's North Landfarm, you requested some
documents and further clarifications of a few issues. In
response, I have enclosed copies of the Federal Register notices
for the §3004(n) rule (June 21, 1990, 55 ZB 25454) and the
Benzene NESHAP (March 7, 1990, 55 IB 8292) and provided below
additional information on static fracturing and the use of
indicator chemicals in risk assessment. We are presently
developing information that will address the third issue, metals
mobility, and will provide it to you as soon as it is completed.
Static Fracturing
The term "static fracturing," although not a formal term, is
used to describe the cracking of earthen materials without
significant movement along the crack (plane of failure). It is
used in contrast to dynamic fracturing (e.g., faults) where the
fracture is related to shear or slip along the plane of fracture.
The terms are not mutually exclusive as many small fractures with
only slight movement can make up zones of slip (e.g., shear
zones) that are associated with dynamic processes.
Static fracturing in relation to no-migration petitions is
usually limited to shrinkage cracks. Three examples of static
fractures are described below for your information. However, the
first (desiccation cracks) is the only one that would possibly
apply to the Baytown landfarm.
Desiccation cracks - These cracks form as a result of
shrinkage from drying. The simplest example is the
formation of mud cracks. Soils and sediments that contain
IJ£fr* and qraate TfgMtfafr"3ttinf'"it>yM~
Bhrinfc and oraate (fraottttf^ffttfinq dry pogieda. . Although,
in most cases, the fractures extend only a foot P? so in 1
•*•• • • *]••••••« •«•••••• ***«^»•«• •••••*•••. • *•&•*••••••••••••• • • f •••••••••••••*••• *v*•••••••••••••••• **•••*•*•*«•• n»•••••
depth, depending on tie makeup! of the sbil and uhderlvincl
-------
sediments, they are reported to exist at depths in the tens
of feet. In areas where montmorillonitic shales weather
from surface soils, desiccation cracks can be exceptionally
deep.
Cooling fractures - These fractures are common in basalts
and are almost characteristic of plateau basalts. Commonly
referred to a§ "joint sets" or "columnar jointing," fracture
patterns developed in cooled lava, are widespread. These
fractures result from shrinkage in the lava as it cools to
basalt rock, and often penetrate the entire layer.
Tension fractures - Any rock unit subjected to Structural
tension may fracture in a direction perpendicular to the
tension. This is very typical of folded units where rock
layers on the outside of the fold undergo tension relative
to rocks along the inside of the fold. Subsequent leaching
by downward movement of surface waters can enlarge
fractures. This is typical of limestone terrains.
Indicator Chemicals in Risk Assessment
EPA's recent guidance - Risk Assessment Guidance for
Superfund - Volume 1: Human Health Evaluation Manual (Part A)
Interim Final (EPA/540/1-89/002) - defines the indicator chemical
approach in more detail than the 1986 Superfund Public Health
Evaluation Manual, which was used by Exxon in its environmental
risk assessment. The methods used to select indicator chemicals
for a no-migration petition are similar to risk assessments
performed for Superfund sites. However, it appears that Exxon
did not completely apply the Superfund approach. EPA's position
is described below and an example of how this approach could be
applied to the environmental risk assessment in your no-migration
petition is presented.
Most Superfund sites have a few chemicals that are usually
present in concentrations that present much higher risks (i.e.,
three or more orders of magnitude or higher), than the remaining
chemicals at the site. Based on this experience, EPA suggested,
at Superfund sites, that between 5 and 10 chemicals with the
highest individual risk factors would be manageable and possibly
sufficient for a human health risk assessment. The selection of
indicator chemicals is not a process of selecting a single
chemical to represent each class of chemicals that may be
expected to exhibit similar fate and transport characteristics
and similar toxicities, but rather, it is a process to exclude
from further consideration, those chemicals that are unlikely to
contribute significantly to risk. Use of the Superfund approach
with wastes placed at refinery landfarms may result in a list of
more than 5 or 10 indicator chemicals, but it is likely to
eliminate from further consideration some of the chemicals that
have been detected in the waste.
-------
The selection of indicator chemicals is optional; it is
often prudent to consider all chemicals. If there are clear
reasons to believe that not all chemicals are likely to
contribute significantly to the total risks, the number of
chemicals carried through the risk assessment modeling may be
reduced using a concentration-toxicity screen.
The indicator"chemical selection procedure is a quantitative
approach that requires an evaluation of each chemical detected at
concentrations above background levels: specifically, one must
compare the concentration of the chemical in a medium to a
toxicity benchmark for that medium. Other considerations such as
persistence, solubility and bioaccumulation are included in the
final selection of chemicals.
To select indicator chemicals, each chemical is assigned a
score by dividing the concentration (C) of the chemical in a
medium by the toxicity benchmark (TB). The medium may be a
source medium (e.g., applied wastes), or a transport medium
(e.g., surface water), depending on the availability of
measurement data. The source of the toxicity benchmarks are
dependent on the potential receptors (e.g., recommended criteria
values for the protection of freshwater aquatic life can be
calculated from Ambient Water Quality Criteria documents). The
scores are then summed for all chemicals to estimate a "total
risk factor" to serve as an initial screen. After consideration
of other factors (e.g., persistence, bioaccumulation), one may
eliminate from the risk assessment chemicals with C/TB values
that are very low compared with C/TB values for other chemicals
of the same class in that medium. "Very low" may be defined as a
lower limit to the percentage of the total risk factor accounted
for by a single chemical. For Superfund sites, the remedial
project manager may choose a "cutoff" for "very low" of one
percent of the total risk factor screen, or a lower value if the
site risks are expected to be high.
In the no-migration petition, it appears that Exxon did not
follow the indicator chemical selection approach as described
above. The concentrations of the chemicals in the composite
waste sludge were discussed with qualitative statements about
relative aquatic toxicity of the chemicals rather than comparing
them to numeric toxicity benchmarks. When the appropriate
application of the indicator chemical approach is followed, there
appears to be no justification for Exxon's exclusion of any of
the VOCs and most of the PAHs from further analysis. To assist
Exxon, we have prepared a couple of exhibits applying the
suggested indicator chemical selection approach using the same
organic waste constituents information provided in the risk
assessment section of the no-migration petition. The same
principles also apply to inorganic constituents, but are not
illustrated in the example. Note that Exxon should begin the
-------
risk assessment by evaluating comprehensive waste
characterization data from all the wastes applied to the
landfarm, not just the listed hazardous wastes.
Exhibit 1 shows the aquatic toxicity values that are
recommended for the particular organic constituents in the waste
as identified by Exxon in the petition. Please contact EPA if
you need assistance in determining appropriate toxicity benchmark
values for additional chemicals if they are detected in the
waste. Calculations for the indicator chemical selection process
are presented in Exhibit 2. In this exhibit, column 1 is the
reported concentration of the chemical in the composite sludge
waste that Exxon used to select waterbome indicator chemicals
for the no-migration petition; column 2 lists the aquatic
toxicity benchmarks shown in Exhibit 1; and column 3 is the ratio
of waste constituent concentration to the aquatic toxicity
benchmark, or the chemical-specific risk score. The chemical-
specific risk scores are then summed for all chemicals within a
chemical class to estimate a "total risk factor" for the medium
and the chemical class. The chemical classes are evaluated
separately because they are likely to exhibit different fate and
transport characteristics.
In this example, if one follows the guidance for superfund
sites, four chemicals (anthracene, benzo(b)fluoranthene, pyrene,
and fluoranthene) each have a total risk factor of less than one
percent (1%). These chemicals could probably be eliminated from
further consideration if there are no other reasons for retaining
the chemical (e.g., high bioaccumulation potential). However, we
need to stress that the risk assessment report should include a
discussion of each chemical that is eliminated from further
modeling, indicating that other characteristics of the chemical,
such as bioaccumulation and persistence, have been considered.
I hope this information will be useful in the preparation of
Exxon's response to EPA's technical evaluation of the no-
migration petition. If you need additional assistance, please
contact Athena Rodbell of my staff at (202) 382-4519.
Sincerely,
James F. Michael, Chief
Disposal Technology Section (OS-343)
Office of Solid Waste
Attachments (2)
cc: Dave Reeves, PSPD, OSW
Athena Rodbell, PSPD, OSW
Terry Keidan, PSPD, OSW
Howard Finkel, ICF
-------
Exhibit 1
Recommended Criteria Values for the Protection of Aquatic Life
Chemical Toxicity Type of Recommended
Value Value Criterion Rationale
(•»/L> (an/U
benzene 5,300 EPA LC90 110 (a)
ethylbenzene „ 32,000 EPA LC30 640 (a)
toluene 17,500 EPA LC90 350 (a)
xylene 3,185 LIT LCSO . 64 (a)
anthracene 800 (b)
benzo(a)anthracene 1.2 EPA CC sed 1.2 (c)
benzo(b)fluoranthene 300 EPA PAH LOEL 60 (d)
benzoja)pyrene 1.2 EPA CC sed 1.2 (c)
chrysene 1.2 EPA CC sed 1.2 (c)
1-methylnapthalene 120 (e)
naphthalene 620 EPA LOEL 120 (f)
phenanthrene 300 EPA PAH LOEL 60 (d)
pyrene 300 EPA PAH LOEL 60 (d)
fluoranthene 3,980 EPA LOEL 800 (f)
EPA values are those identified in the chemical-specific Ambient
Water Quality Criteria Documents. "CC sed" is EPA's chronic
criterion for PAHs in pore water of sediments as identified by
Exxon.
(a) EPA or literature (LIT) LC30 value divided by a factor of 10
to extrapolate from an acute to chronic value and a factor
of 5 for variation in species sensitivity.
(b) Assume toxicity value equal to that of fluoranthene (could
use a more conservative assumption than this).
(c) EPA chronic criterion for benzo(a)pyrene in water pore of
sediments, as identified by Exxon
(d) EPA LOEL (Lowest Observable Effect Level), identified for
PAHs in general, divided by a factor of 5 for variation in
species sensitivity.
(e) Assume toxicity value equal to that of naphthalene.
(f) EPA LOEL (Lowest Observable Effect Level) divided by a
factor of 5 for variation in species sensitivity.
-------
Exhibit 2
Indicator Chemical Approach Examples for Exxon, Baytown, TX
Constituent Waste Aquatic
Concentra- Toxicity
tion Benchmark
(n»/Xf) (oc/D
[CJ
(1)
Indicator Chemical
benzene
ethylbenzene
toluene
xylene
[TB]
(2)
Selection
16
19
87
116
Xoolied to
0.11
0.64
0.35
0.064
Chemical Percent
Specific Total
Risk Risk
Factor
[C/TB]
(3)
VOCS
145
30
249
1813
VOC TOTAL * 2236
Indicator Chemical
anthracene
BaA
BbP
BaP
chrysene
1-methy Inapth .
naphthalene
phenanthrene
pyrene
fluoranthene
Selection
39
81
12
16
21
267
138
134
45
141
ADD lied to
0.8
0.0012
0.06
0.0012
0.0012
0.12
0.12
0.06
0.06
0.8
PAHs
49
67500
200
13333
17500
2225
1150
2233
750
176
(4)
6.5 %
1.3 %
11.1 %
81.1 %
None < 1 %
0.05
64.2
0.2
12.7
16.6
2.1
1.1
2.1
0.7
0.17
Of
%
%
%
%
V
PAH TOTAL- 105117
Four < 1 %
(1)
(2)
(3)
From Exxon, Baytovm, TX, Table 9.5-2: sludge composite waste
concentrations .
Aquatic toxicity values from Exhibit 1 (expressed in mg/L
instead of pg/L)
(1) divided by (2), i.e., concentration in the waste divided
by aquatic toxicity values assuming 1 kg waste equivalent to
1 liter (i.e., 1 kg) of water.
(4) Percent of total risk factor for all chemicals contributed
by the specified chemical.
-------
UNITED STATES ENVIROHMEHTAL PROTECTION A&CMV.J
9551.1991(04)
JAN 3 0 1991
Mark J. Lupo, Ph.D.
Manager, Applied Sciences
K. W. Brown & Associates, Inc.
500 Graham Road
College Station, TX 77845
RE: Standards for"Air Pathway for Metals and Organic Chemicals
Dear Dr. Lupo:
We have reviewed Tables 1 and 2 and the information you
provided in your letter of January 11, 1991. In the tables,
three of the columns (TWA, STEL, and Ceiling) are only applicable
to OSHA standards. Although a petitioner does not have to make a
demonstration of no-migration for the short term events, they
must still certify compliance with the OSHA requirement.
Attached are the most current levels for metals in the air phase.
The Health Based Level (HBL) for chromium is based on
hexavalent chromium which is carcinogenic when inhaled. EPA
determines exceedance based on the total volume of chromium using
the hexavalent HBL. If BP Oil is to use only the amount of
hexavalent chromium to determine exceedance, they must
substantiate how these values are separated from total chromium.
Also attached are the most current standards for organics in
the air phase. Three of the compounds in Table 2 do not relate
to no-migration and have been deleted. 1-Methylnaphthalene and
Indene are not Appendix VIII or IX compounds and 3-Methy1-
cholanthrene, while an Appendix VIII compound, is not on the
Modified Skinner List. These three compounds do not have Health
Based Levels (HBL). Although Benzidine is not on the Modified
Skinner List, it is an Appendix VIII constituent and has a HBL
and is therefore included in the attachment.
Sincerely,
Newman Smith
Disposal Technology Section
Office of Solid Waste
cc: Terry Keiden, AB, OSW
Athena Rodbell, AB, OSW
-------
UNITED STATES ENVlROHMfcNl AL
9551.1991(05)
FEB - 5 1991
Mr. Gregg L. Lorimor
Refinery Manager
Kerr-McGee Refining Company
P.O. Box 305
Wynnewood, Oklahoma 73098
Re: No-Migration Petition submitted for Kerr-McGee Refining
Company's Wynnewood, Oklahoma Land Treatment Facility
(F-91-NWOP-FFFFF)
Dear Mr. Lorimor:
I am writing in regard to your June 22, 1990 "no-migration"
petition, which requests a variance under 40 CFR §268.6 to allow
Kerr-McGee Refining Company (KMRC) to continue the land treatment
of restricted wastes at KMRC's Wynnewood, Oklahoma land treatment
facility (LTF). After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no-
migration variance. Therefore, we will recommend to the
Assistant Administrator for Solid Waste and Emergency Response
that the petition be denied.
Our decision to recommend denial of the petition is based on
the following concerns:
• Soil-pore monitoring indicates that hazardous
constituents have already migrated beyond the unit
boundary;
• The ground-water monitoring system is inadequate for
the purpose of a no-migration variance, because it will
be unable to detect constituent migration at the
earliest time practicable; and,
The required minimum separation between the bottom of
the treatment unit and the top of the seasonally high
water table has not been demonstrated.
We discuss our concerns below.
-------
presence of Hazardous Constituents Below the Treatment Zone
Soil-pore liquids monitoring data collected from the active
LTF and from the land treatment demonstration (LTD) plot indicate
that constituents have already migrated beyond the unit boundary
at hazardous concentrations. As shown in Attachment 1, soil-
pore monitoring data collected during the LTD (November, 1988 -
February, 1989) indicate that antimony, arsenic, barium, benzene,
and 2,4-dimethylphenol were detected at concentrations in excess
of their respective health-based levels. Additionally, as shown
by Attachment 2, soil-pore monitoring data collected from the LTF
between December 8, 1983 and November 12, 1986 indicate that lead
has migrated beyond the unit boundary at hazardous concentrations
above the health-based level (0.05 mg/1). We, therefore,
conclude that the presence of these constituents in the soil-
pore liquids clearly demonstrates that these contaminants have
already migrated below the LTF at hazardous concentrations.
Ground—Water Monitoring Data and Detecting Releases at the
Earliest Time Practicable
As shown by Attachment 3, benzene was detected in shallow
well LMW-5-o at concentrations exceeding the health-based level
of 0.005 mg/1 during four ground-water sampling events between
February and November, 1989. KMRC claims that the benzene
detected in this well was attributable to a soil-core sampling
event in January, 1989, when LTD soil-core samples were augered
through nine inches of standing water (precipitation). KMRC
states that this enabled water to run down the boreholes,
carrying hazardous constituents to a depth of at least 5.5 feet
below the surface. However, KMRC has failed to prove
conclusively that the soil-core sampling event is directly
related to the presence of benzene in shallow well LMW-5-0. For
example, the benzene levels found in the sampling events have
fluctuated (0.310 mg/1 in February, 1989; 0.130 mg/1 in May,
1989; 0.240 mg/1 in August, 1989; and, u.130 mg/1 in November,
1989). If the soil-core sampling event was directly related to
the presence of benzene in the shallow well, it would stand to
reason that the benzene concentrations would have peaked, then
tapered off. However, since the benzene concentration has
fluctuated, we have concluded that the operations at the LTF are •
contributing to the to the presence of benzene in shallow well
LMW-5-0.
Additionally we believe that KMRC has failed to meet the
requirements of 40 CFR §268.6(a)(4). Specifically, KMRC has not
demonstrated that the ground-water monitoring system at the LTF
is capable of detecting (and differentiating) releases at the
earliest extent practicable.
KMRC's current ground-water monitoring system consists of
seven pairs of wells, each pair consisting of a shallow well
-------
-3-
[indicated by a "-0" suffix) and a deep well. Free hydrocarbon
sroducts were detected in the ground water at LWM-1 during the
first sampling event on November 17, 1981 (LMW-6 replaced LMW-l
In 1984) . According to KMRC, this was the first indication of
the existence of a liquid hydrocarbon plume on the refinery
property. Ground-water monitoring between November 1988 and
November 1989 at deep wells LMW-2, LMW-4, LMW-5, LMW-6, and RW-2
indicated the presence of benzene above health-based levels,
KMRC attributed to impacts from the hydrocarbon plume.
We believe that the locations of the monitoring wells are
generally adequate, provided that the local ground-water flow
pattern will not change in the future. However, given the
proposed free oil recovery and ground-water remediation to be
carried out in the next few years by KMRC, the local
hydrogeologic regime may be drastically altered because of the
hydraulic drawdown (to remove free products) in the currently
upgradient processing area. In response to the planned
remediation activities, some of the upgradient wells may become
temporarily downgradient (e.g., RW-2 and RW-2 -0) to those wells
that are currently downgradient.
Lastly, the ramifications of the contamination resulting
from the underlying hydrocarbon plume in regard to ground-water
monitoring of the LTF are unclear. KMRC has not provided
detailed analytical results that describe the extent of the known
contamination beneath the LTF and KMRC is relying on the shallow
wells to differentiate between releases from the LTF and the
underlying hydrocarbon plume. Shallow well LMW-5-0, however, is
already contaminated with benzene. We, therefore, believe that
KMRC will be unable to differentiate between the two releases and
therefore, conclude that the ground-water monitoring system will
not be able to detect constituent releases at the earliest extent
practicable.
' Maintaining Minimum Separation
Federal regulations require that the depth-to-ground water
at land treatment facilities be no less than three feet from the
bottom of the treatment zone to the seasonal high water table
(see 40 CFR 264.271(c) (2) ) . Based on the discussion below, we
have concluded that KMRC has not demonstrated that the required
minimum separation of three feet between the bottom of the
treatment unit and the top of the seasonally high water table is
consistently maintained.
KMRC stated that during the LTD in 1988-89, the water table
beneath the LTF averaged from 9.2 to 11.9 feet, with seasonal
fluctuations ranging from 1.22 to 1.82 feet. Given this range,
the water table can rise to 7.38 feet of the surface, or 2.88
feet below the treatment zone. Historically, however, the water
table at the LTF has shown much more fluctuation than observed
-------
-4-
.uring the LTD. In June, 1985, a depth of 4.92 feet was recoraea
,t well RW-1, and in March, 1987, depths of 5.03, 5.82, and 6.01
feet were recorded at LMW-3, LMW-6, and LMW-2, respectively (Part
\ Permit Application, pages E-38 to E-41). These data indicate
:hat fluctuations ranging from 0.42 to 1.51 feet of separation
>etveen the treatment zone (4.5 feet deep) and the water table
lave occurred, shoving that the required three foot separation is
lot maintained.
*r
[ncomolete Petition
Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the problems discussed above, we believe we
have sufficient information at this time to move toward a denial
of your petition.
It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register. If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions. This
letter should be forwarded to the following address within two
weeks of the date of receipt of today's correspondence:
Patricia Conn, Acting Chief
Assistance Branch (OS-343)
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register.
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
Attachments
cc: Bill Gallagher, Region VI
Fenton Rood, OSDH
Patricia Conn, PSPD, OSW
James Michael, PSPD, OSW
-------
-5-
bcc: Terry Keidan, AB, PSPD, OSW
Jeffrey Gaines, AB, PSPD, OSW
Dave Reeves, AB, PSPD, OSW
Richard Kinch, WMD, OSW
Kathy Stein, OE
NiXJci Roy, WMD, OSW ...
Howard Finkel, ICF Incorporated
-------
ATTACHMENT 1
Summary of Soil-Pore Liquids Monitoring Data
For Constituents Detected Above Health-Based Levels (mg/lj
(Data from LTD Final Report, Appendix C)
Constituents
Antimony i/
Arsenic V
Barium I/
Benzene
2 , 4 -Dimethyl
Phenol
Sampling Lysimeter Health-Based
Dates Numbers Concentrations Levels
11/88
11/88
11/88
11/88
01/89
02/89
04/89
07/89
08/89
11/88
04/89
3
3
3
2
3
3
4
2
4
bkgmd
2
4
1
4
4
2
2
0.036
0.06
1.7
1.3
2.3
2.1
0.014
1.5
0.32
0.011
2.6
0.36
0.71
0.42
0.43
0.044
0.029
0.01
0.05
1.0
0.005
0.02
I/ Analyses for inorganics only performed on 11/88 samples
due to limited volume of soil-pore liquids collected
during subsequent sampling events.
-------
ATTACHMENT 2
Summary of Soil-Pore Liquids Monitoring Data
For Constituents Detected Above Health-Based Levels (mg/1)
(Data from LTF, Recon. Report, Table 3-4)
Sampling Lysimeter Health-Based
Constituents
Chromium
Dates
06/05/84
06/12/85
05/16/86
Numbers
1 (bkgmd)
2
3
4
2
2
5
Concentrations
0.2
0.05
0.16
0.05
0.08
0.07
0.05
Levels
0.05
Lead
12/08/83 2 0.19
4 0.18
5 0.14
05/16/86 1 (bkgrnd) 0.29
2 0.45
3 0.5
4 0.37
5 0.4
11/12/86 1 (bkgmd) 0.06
3 0.05
4 0.09
0.05
-------
ATTACHMENT 3
Summary of Ground-Water Monitoring Data For Benzene Found
at Concentrations Above the Health-Based Level*
Concantration Ov/D
D«ff0radi«it Mils
Oat*
Nov.,
Feb.,
May,
Aug.,
Nov.,
4V
INI-3 U">3-0 IMM UU-4-0
1988
1989
1989
1989
1989
L0b
10
LS
LO
LO
LO 0.049
LO 0.033
LO 0.0073
LO LS
LO 0.018
LSe
LO
IB
LO
LO
UW-5 LJW-5-0 BM Bf-1-0 LMW-2 LNU-2-0
O.OS6
0.036
0.06*
O.OZ5
0.140
LO
0.310
0.130
0.240
0.130
LO
LS
LS
LS
LO
LO 0.034
LO 0.0047
LO 0.0061
LO LO
LO LO
LO
LO
LD
LO
LO
Upgradient Well*
LI*-6 LtM-6-0
0.049
0.022
0.023
0.02S
0.017
LO
LO
LO
LO
LO
RU-2 RU-2-0
o.soo
0.150
0.180
0.220
0.190
LO
LS
LO
.d
LO
Footnota:
a. Tha currant haalth basad laval for baruana la 0.005
b. "LO" Mana a concantratlon lowar than tha da tact ion liaiit.
c. "LS" MMM • concentration greater than the detection Halt but I Ma than tha drinking water standard.
d. ••• Mam data MM not available.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY '51 1991(Q6)
APR 22 !99f
Mr. J. R. Mclntire
Refinery Manager
Atlantic Refining & Marketing Company Corporation
3144 Passyunk Avenue
Philadelphia, Pennsylvania 19145
Re: No-Migration Petition submitted for Atlantic Refining &
Marketing Company Corporation's Philadelphia, Pennsylvania
Land Treatment Facility (F-91-NARP-FFFFF)
Dear Mr. Mclntire:
I am writing in regard to your May 16., 1990 "no-migration"
petition, which requests a variance under 40 CFR §268.6 to allow
Atlantic to continue the land treatment of restricted wastes at the
Philadelphia, Pennsylvania land treatment facility (LTF). After a
careful review of your petition, we have identified three major
technical problems. These are:
Evidence of releases from the LTF in excess of health-
based levels;
Inadequate ground-water and soil-pore monitoring systems
for no-migration purposes; and,
Apparent non-compliance with other regulatory
requirements.
Therefore, we have concluded that the Atlantic facility does not
meet the standard set by the statute for a no-migration variance.
We will, therefore, recommend to the Assistant Administrator for
Solid Waste and Emergency Response that a no-migration variance for
Atlantic be denied.
Each of the major technical deficiencies identified from our
evaluation of your petition is discussed in detail below. Any
questions concerning any of our technical analyses and findings may
be submitted in writing to Mr. James Michael of my staff.
Presence of Hazardous Constituents in the Ground-Water
Atlantic states that "ground-water will not be used for the
purposes of no-migration" (Vol.1, section 5.3.1.2.2, page 138), and
no quantitative analysis of ground-water was provided in the
petition. Therefore, in order to conduct a complete evaluation of
-------
Atlantic's no-migration petition, we sought ground-water data from
the Pennsylvania Department of Environmental Resources (PADER).
Hazardous constituents above health-based levels were detected
in the 1987 and 1990 sampling events. Specifically, in 1987,
PADER detected benzene, chlorobenzene, 1,4-dichlorobenzene, and
ethyl benzene above their respective health-based levels in the
downgradient monitjpring wells. In 1990, PADER again detected
benzene and 1,4-dichlorobenzene above their respective health-based
levels in the downgradient monitoring wells (see Table 1).
TABLE 1 - GROUND-WATER CONTAMINATION
HAZARDOUS
CONSTITUENT
(rag/D
BENZENE
CHLOROBENZENE
1,4-
DICHLOROBENZENE
ETHYL BENZENE
HEALTH-BASED
LEVEL
(mg/1)
0.005
0.100
0.075
0.700
1987: MAXIMUM
CONCENTRATION
DETECTED
(mg/1)
3.652
0.675
0.425
1.825
1990: MAXIMUM
CONCENTRATION
DETECTED
(mg/1)
2.990
0.140
Although Atlantic argues that the underlying ground-water has
been contaminated from other pre-existing sources, Atlantic's
petition has failed to demonstrate that the existing ground-water
contamination did not result, even in part, from LTF operations.
A comparison of PADER data for the LTF's upgradient and
downgradient wells shows in all cases that concentrations of
hazardous constituents in the downgradient monitoring wells exceed
the concentrations of the same constituents, if detected at all, in
the upgradient monitoring well. This indicates to us that
migration has already occurred that may be attributable to the
wastes in the LTF unit and not the hydrocarbon plume underlying the
general area where the LTF is located. Furthermore, we do not
believe that Atlantic's ground-water monitoring system is capable
of differentiating the source of the constituents already detected
(see discussion below).. As a result, we cannot definitively
conclude that the contamination which is already evident is not due
to migration of constituents from the LTF unit. This finding is
PADER performed only a qualitative analysis of organic
constituents in 1988, and did not perform any analyses for organic
constituents in 1989.
-------
necessary to satisfy the no-migration standard for land disposal or
restricted hazardous wastes.
Presence of Hazardous Constituents in the Soil-Pore Liquids
We understand that the LTF is divided into eight plots, A-H,
with one lysimeter ^located on each plot, and that Atlantic has not
applied wastes to'plots G and H since 1985. The RCRA Permit
specifies that Atlantic should conduct soil-pore monitoring for
each plot on a semi-annual basis for the principal hazardous
constituents (PHC's) identified, which include volatile and semi-
volatile organics and inorganics. In contrast to this requirement,
Atlantic's petition included soil-pore monitoring data from only a
few plots. Specifically, soil-pore liquid samples were collected
from only three plots in April 1989, four plots in July 1989, and
three plots in October 1989. Moreover, even though plot H has been
inactive since 1985, only the soil-pore liquids collected from plot
H were analyzed for the inorganic indicator constituents. These
limited data showed that benzene was detected above the health-
based level of 0.005 mg/1 (see Table 2). The instances of benzene
in the soil pore liquids above the health-based level indicates
•that this contaminant has migrated below the LTF at concentrations
considered hazardous by EPA.
Furthermore, because the soil-pore monitoring data provided by
Atlantic are so limited, we consider them insufficient to
lemonstrate, to a reasonable degree of certainty, that inorganic
md other organic constituents have not migrated from the LTF.
TABLE 2 - SOIL-PORE CONTAMINATION 0? BENZENE (mg/1)
PLOT H
Health-
based level
5/21/89
0.013
7/19/89
0.010
10/24/89
0.007
0.005 mg/1
Detecting Releases at the Earliest Practicable Time
In its petition, Atlantic has not demonstrated that the
ground-water and soil-pore monitoring systems at the land treatment
facility (LTF) are capable of detecting releases from the LTF at
the earliest practicable time, as is required by 40 CFR
§268.6(a)(4). Of particular concern is the inability to clearly
differentiate between past and present releases.
-------
Ground-Water Monitoring System
Atlantic stated that it developed its ground-water detection
monitoring program "in light of well-documented, pre-existing
ground-water contamination associated with the general area where
the LTF is located" (Vol. 1, section 6, page 55). We note that
during the 1989 and 1990 compliance monitoring evaluation (CME)
inspections, approximately three feet of standing oil was observed
in the downgradient monitoring well (W6), preventing collection of
ground-water samples with a three foot bailer. In addition, older
CME monitoring results indicated the presence of significant levels
of contamination, particularly total organic carbon (TOC) in the
underlying ground-water, up to 98,000 mg/1.
Although Atlantic attributes this contamination to pre-
existing site conditions and argues the LTF has not affected
ground-water quality, we are not aware of any assessment monitoring
program conducted.by Atlantic during interim status, nor did the
petition describe any facility attempt to locate the sources of the
ground-water contamination. In addition, the constituents of a
weathered petroleum product plume would be very similar to those
detected in a release from your LTF managing wastes from petroleum
refining activities. Clear differentiation between the sources of
releases is necessary to support a finding of no-migration.
However, your petition does not provide this level of certainty.
In order to determine whether migration of hazardous
constituents has occurred, Atlantic plans to perform a trend
analysis on each of the constituents detected in the ground water.
We believe, however, that the elevated levels of constituents
contributed by the "free-product plume" will mask all but massive
releases from the LTF. We are concerned that, Atlantic intends to
rely on a significant increase in the concentrations of the
volatile aromatic organic indicator compounds to provide early
detection of migrating hazardous constituents. For the purposes of
no-migration, we require petitioners to clearly demonstrate that
their facility is not contributing contaminants at concentrations
in excess of the applicable health-based levels. We do not believe
that a trend analysis will enable Atlantic to identify releases at
low concentrations which are frequently used as health-based levels
(e.g., 0.005 mg/1 of benzene). We, therefore, conclude that
Atlantic's ground-water monitoring system is inadequate for the
purposes of detecting constituent releases from the LTF at the
earliest practicable time.
Soil-Pore Liquids Monitoring System
Similarly, Atlantic has not demonstrated that its soil-pore
monitoring program will allow for the detection of constituent
migration at the earliest practicable time.
-------
Atlantic's soil-pore monitoring program does not appear to
adequately monitor the effect of accumulated waste on localized
migration of hazardous constituents (i.e., hot-spots). Atlantic's
petition indicated that it dumps wastes at the access ramps of each
plot and does not distribute these on the plots until several loads
have accumulated. The wastes spread over the plot may not be
evenly distributed, as evidenced by the "long-term accumulation of
treated waste residues in the proximity of waste off-loading ramps"
(App.l, page LTP-18). The placement of the lysimeters was chosen
using a random number approach and are not placed near the access
ramps where the wastes are placed. It is, therefore, likely for
hot-spots to exist within the LTF, for which Atlantic's soil-pore
monitoring program does not adequately account.
Second, in the petition, Atlantic described the physical and
chemical consistency of the soils as being highly variable over
short distances. We believe that the physical heterogeneity of
soil texture in the lower treatment zone (LTZ), as described, may
establish pathways of reduced resistance to migration of hazardous
constituents. We expect these pathways of reduced resistance to
"short-circuit" the land treatment processes and facilitate the
migration of hazardous constituents below the treatment zone. In
addition, if slag, ash, bricks, large chunks of concrete, wood
timbers, wires, and construction debris are present within the LTF,
as the petition states, we are concerned that these materials also
will form pathways of reduced resistance to soil water flow, or
themselves be a source contributing hazardous constituents.
Neither Atlantic's placement of lysimeters, nor its predictive
computer modeling, accounted for the potential effects of such soil
variability or foreign material on the physical and chemical
processes within the treatment zone. We conclude, therefore, that
Atlantic's soil-pore monitoring system is not capable of detecting
constituent migration at the earliest practicable time.
Maintaining Minimum Separation
Federal regulations require that the depth-to-ground water at
land treatment facilities should be at least three feet from the
bottom of the treatment zone to the seasonal high water table (see
40 CFR 264.271(c) (2)) . Specific depth-to-ground-water measurements
beneath the LTF have not been provided in this petition. However,
based upon topographic maps provided by Atlantic, it appears that
most of the Atlantic's LTF is at an elevation of about 20 feet
above sea level. In addition, seven to thirteen feet above sea
level was cited as the water table elevation range (Vol.1, section
4.5.1, page 4-21), therefore, we estimated the depth of the water
table as also being between seven and thirteen feet below ground
surface. This estimate indicates that portions of the LTF may not
be three feet above the seasonal high water table as is required by
40 CFR §264.271(c)(2).
-------
In addition, Pennsylvania State regulations define the
seasonal high water table as "the presence of mottling" (see 25
Pa.Code §75.264 (u)(5)). As is shown by Attachment I, mottles were
reported at various depths within the LTF. The presence of mottles
in the LTF indicates that there may be an insufficient separation
between the LTZ and upper saturated zone (i.e., the presence of
saturated soil conditions). We believe, therefore, that the
presence of mottles within the LTF soils further supports our
determination that"Atlantic has failed to demonstrate compliance
With 40 CFR §264.271(c)(2).
Incomplete Petition
Finally, our review indicates that the petition is incomplete
and that information and clarification in areas beyond those
highlighted above would be needed to complete the petition.
However, because of the problems discussed above, we believe we
have sufficient information at this time to move toward a denial of
your petition.
It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in the
Federal Register. If you prefer this option, you must send us a
letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions. This letter
should be forwarded to the following address within two weeks of
the date of receipt of today's correspondence:
Elizabeth Cotsworth, Chief
Assistance Branch (OS-343)
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
If you choose not to withdraw your petition, we will recommend
that a proposed denial decision be published in the Federal
Register.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
-------
cc: Elizabeth Cotsworth, PSPD, OSW
James Michael, PSPD, OSW
Paul Gotthold, Region III
Hon Lee, Region III
Larry Lunsk, PA DER
-------
8
bcc: Terry Keidan, AB, PSPD, OSW
Allyson Ugarte, AB, PSPD, osw
Dave Reeves, AB, PSPD, OSW
Kathy Stein, OE
Bill Kline, WMD, OSW
Douglas Donor, Region III
Howard Finkel, ICF Incorporated
-------
ATTACHMENT I
Depth to Uppermost Occurrence of Mottles (inches)
Plot
Horizon Depth
BTZ Separation
A
B
C
D
E
F
G
H
Background
2F1
"2F
ZOI2
2F2
ZOI2
ZOI2
2F1
4F3
Fl
37-48
39-51
11-40
35-44
10-35
10-38
28-32
48-53
0-28
37
39
40
28 '
35
38
28
28
None
None
None
7
None
None
None
20
Note: BTZ is the depth to the control area (clean
fill zone)
Source: App.3, Attachment 5-2
-------
s
j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1991(07)
WASHINGTON. D.C. 20460
. OFFICE Of
SOUO WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Applicability of the Land Disposal Restrictions to Exported Wastes
FROM: Sylvia K. Lowrance, Direi
Office of Solid Waste (88
TO: Gerald M. Levy, Chief
MA Waste Management Branch
Region I
This memorandum responds to your March 8, 1991, request for clarification
concerning the applicability of the Pan 268 Land Disposal Restrictions (LDR) program
to wastes to be exported for treatment and/or recovery; in particular, the testing and
recordkeeping requirements of Part 268.7.
The requirements of Pan 268 are applicable to hazardous wastes (as stated at 40
CFR 268.1(b)) unless specifically provided otherwise in Part 261 or Part 268. Neither
Part 261 nor Part 268 generically exclude the export of hazardous wastes from the LDR
requirements. Therefore, the requirements of Pan 268.7(a) are applicable. However,
this is not meant to imply that the treatment standards must be met prior to disposal in
another country.
As a secondary matter, the description "corrosive, metal-containing wastes" used
in your March 8, 1991 correspondence is insufficient to make a determination regarding
the regulatory status of the secondary material when destined for reclamation.
Specifically, as presented in Table 1 of Part 2612, a characteristic by-product or sludge
that is reclaimed is not a solid waste (and therefore not subject to the part 268
requirements); however, a characteristic spent material that is reclaimed is a solid waste
(and therefore must comply with the Part 268 requirements). In addition, scrap metal
that is hazardous solely due to a characteristic is not subject to the LDR Part 268
paperwork requirements (See 40 CFR 261.6(a)(3)(B)(iv)).
Should you have further questions, or need more information, please contact
Charles Hunt, of my staff, at FTS 475-8551.
Printed on Recydec
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY QCC1
9551.1991(08)
2 9;^'
Mr. Glenn A. Weiss
Refinery Manager
Texaco USA
Puget Sound Plant
P.O. Box 622
Anacortes, Washington 98221
Re: No-Migration Petition submitted for Texaco's Anacortes,
Washington Land Treatment Facility (F-91-NTAP-FFFFF)
Dear Mr. Weiss:
• .
I am writing in regard to your May 18, 1990 "no-migration"
petition, which requests a. variance under 40 CFR §268.6 to allow
Texaco to continue the land treatment of restricted wastes at its
Anacortes, Washington land treatment facility (LTF). After a
careful review of your petition, we have identified three major
technical problems. These are:
Evidence of releases from the LTF in excess of health-
based levels;
Inadequate ground-water monitoring system for purposes
of no-migration; and,
Apparent non-compliance with other regulatory
requirements.
Based on these technical deficiencies, we have concluded
that the Texaco facility does not meet the standard set by the
statute for a no-migration variance. We will, therefore,
recommend to the Assistant Administrator for Solid Waste and
Emergency Response that a no-migration variance for Texaco be
denied.
Each of the major technical deficiencies identified from our
evaluation of your petition is discussed in detail below. Any
questions concerning any of our technical analyses and findings
may be submitted in writing to James Michael of my staff.
Presence of Hazardous Constituents Below the Treatment Zone
Our review of Texaco's 1988 soil-pore monitoring data for
the LTF indicate that chromium, benzene and nickel have already
migrated beyond the unit boundary above their respective health-
based levels (HBLs). See Table 1.
-------
TABLE 1 - EVIDENCE OF MIGRATION BEYOND UNIT BOUNDARY
HAZARDOUS
CONSTITUENT
BENZENE
NICKEL
CHROMIUM
HEALTH-BASED
LEVEL
0.005 mg/1
0.01 mg/1
0.01 mg/1
1988: MAXIMUM
CONCENTRATION
DETECTED
0.019 mg/1
0.263 mg/1
0.121 mg/1
Furthermore, the analysis of soil core monitoring data
collected in 1989 indicates that benzo(a)-anthracene,
benzo(a)pyrene, and benzo(b)fluoranthene were detected below the
treatment unit in excess of their respective HBLs. See Table 2.
In addition, chrysene, fluoranthene, naphthalene, 1-raethyl-
naphthalene, phenanthrene, and pyrene were detected in the soil
cores at statistically significant concentrations. Although the
concentrations detected do not exceed HBLs, statistically
significant concentrations below the treatment zone indicate that
:hese constituents are migrating and further add to our concern
I see Attachment 1).
TABLE 2 - EVIDENCE OF MIGRATION BEYOND UNIT BOUNDARY
HAZARDOUS
CONSTITUENTS
BENZO (A)
ANTHRACENE
BENZO (A)
PYRENE
BENZO (B)
FLUORANTHENE
HEALTH-BASED
LEVELS
0.055 mg/1
0.055 mg/1
0.055 mg/1
LYSIMETER
SAMPLE DATE
AND NUMBER
Jun/89
Oct/89
Jun/89
Oct/89
Jun/89
Oct/89
1989: MAXIMUM
CONCENTRATION
DETECTED
1.361 mg/1
0.993 mg/1
0.454 mg/1
0.310 mg/1
0.784 mg/1
1.676 mg/1
-------
Another indication of the migration of hazardous waste
constituents is the increase in the concentration of total
organic carbon (TOC) at the base of the treatment zone.
Attachment 2 shows the concentrations of TOC in samples collected
from the 1988 lysimeter monitoring events. The average
concentration of the background lysimeter samples in plot BG-SE
is 13 mg/1. A significant increase in TOC concentration is
considered to be the, average background value plus two standard
deviations, or 27 mg/1. As can be seen from Attachment 2, the
average concentration of TOC detected from the 1988 lysimeter
system exceeds the significance level of 27 mg/1. These data
indicate to us that the LTF is not successfully degrading or
immobilizing all wastes and further support our conclusion that
the migration of hazardous constituents is occurring.
In the petition (Section 1, page 5), Texaco attributes
the detection of constituents at the base of the treatment zone
in the West LTF (WLTF) plot #8 to wastes buried during the
terracing of the plot. There is no explanation in the petition
of how this could occur. Lacking this explanatory information,
we cannot evaluate your statement, particularly since the plot
is situated in a relatively flat area, only portions of the
surface layer were modified, and buried wastes are located 7.5
feet below the surface of the plot (i.e.. plot #8 would have
required very little cut and fill). Furthermore, Texaco's
petition did not explain the presence of hazardous constituents
detected in the other plots, such as plot #9, also in the WLTF
(see Attachment 2).
Detecting Releases at the Earliest Practicable Time
In its petition, Texaco has not demonstrated that the
ground-water system at the land treatment facility (LTF) is
capable of detecting releases at the earliest practicable time,
as is required by 40 CFR §268.6(a)(4).
•-''
According to the petition, the depth to ground water is too
great to deem it an important factor in determining subsurface
contaminant migration (Volume 1, Table Exec-1). Texaco based
this conclusion on the historic absence of contaminants in
ground-water monitoring samples. Consequently, Texaco does not
recommend monitoring of the primary aquifer. The petition
indicated elsewhere, however, that perched water tables are
present at the facility and that saturated conditions are present
through most of the geologic units. Based on this facility
description, we consider ground-water monitoring to be important
for the purposes of a no-migration variance for the LTF.
Based on our evaluation of some of the features of Texaco's
ground-water monitoring system, we believe this system is
inadequate for early detection of migration because of well
screen location. Attachment 3 illustrates well-screen position
-------
for twenty monitoring wells at the East and West LTFs, nine of
which are down-gradient wells. Of those nine, six are screened
between six and twenty one feet below the top of the water table
making it possible for a shallow plume to be missed by
monitoring. In addition, as illustrated in Attachment 3, two
monitoring wells have been screened over an interval that does
not intercept ground water, and well 17 is screened above the
ground-water depth. ^
Maintaining Minimum Separation
Federal regulations require that the depth-to-ground water
at land treatment facilities should be at least three feet from
the bottom of the treatment zone to the seasonal high water table
(see 40 CFR §264.271 (c)(2)). We believe that Texaco has failed
to demonstrate that either the West or East Field of Texaco's LTF
has successfully maintained this minimum separation.
Unfortunately, the petition did not present a comprehensive
data set showing depths to the water table. Attachment 4,
however, displays that a sufficient amount of data was compiled
from the no-migration petition to indicate that a water table
exists within three feet of the treatment zone in the East LTF
(ELTF). If an accumulated waste layer is assumed, we estimate
the minimum acceptable depth to the seasonal high water table to
be 9.5 to 11.5 feet below the soil surface (depending on waste
accumulation). Attachment 4 shows that at the ELTF, a separation
in that range occurs infrequently in any piezometer or monitoring
well.
Texaco indicates that the observed "perched" water table is
seasonal and confined to a shallow surface soil layer (App. I,
Vol.5, pages XIX-27 and XIX-32). Texaco, therefore, does not
consider this to be a perched water table, but rather a temporary
condition of excessive soil wetness. Texaco further associates
''high water table readings with leakage around the piezometer
casing allowing surface water to enter the piezometers (App. I,
Vol.5, page XIX-38). Only two of the five piezometers tested,
however, showed any immediate response to a rainfall event. The
data shown in Attachment 4 indicate that this condition persists
throughout the year with slight fluctuations in level. The
hydrology section of Texaco's permit application also indicates
that saturated conditions appear continuous through zone E
(App.I, Vol.3, page XV-20) and are not restricted to a shallow
surface layer. We, therefore, do not believe that the data
support a zone of restricted downward flow. Instead, we conclude
that the data support the existence of a perched water table and
that continuous saturated conditions exist throughout the
treatment zone, particularly at the ELTF.
-------
Data supplied with the petition does not indicate that
sufficient depth to the water table exists under the West LTF
(WLTF). In fact, mottling, indicating saturated soil conditions,
was reported in the WLTF soil descriptions in all profiles and
/ithin 9 to 34 inches from the soil surface (Sec.4, page 8).
Saturated conditions in the WLTF surface layer is also reported
Ln the hydrology section of the permit application (App.I, Vol.3,
page XV-35). In light of this information, Texaco did not
provide sufficient piezometric data for the WLTF to substantiate
that depth to the seasonal high water table meets the
requirements. Therefore, in regard to both the ELTF and WLTF,
the minimum separation required by 40 CFR §264.271(c) is not
being maintained. This is a deficiency that precludes granting a
no-migration variance to the facility.
Incomplete Petition
Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the technical nature of the problems
discussed above, we believe a technical basis already exists that
is sufficient to support a denial of your petition.
It is our policy to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register. If you prefer this option, please send us
a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions. This
letter should be forwarded to the following address within two
weeks of the date of receipt of today's correspondence:
Elizabeth Cotsworth, Chief
Assistance Branch (OS-343)
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
-------
ATTACHMENT 1
Sunmary of Significant BTZ Soil-Core Detections (jig/Kg)
CorwtlttMnt/Plot
Mnzo Oct 89
9
1464.5
453.8
2475.2
1382.0
2681.5
206.3
742.6
4744.4
391.9
Oct 89
9 Oup
993.4
310.4
1676.4
910.6
1821.3
HO
476.0
3311.4
248.4
MMlth*
Bsri l«tfU
55
55
55
--
3.2»C7
3.2*€7
1.6*E6
3.2*€7
3.2*€7
Hot*: En r«prtwnM 1 x 10°
-------
ATTACHMENT 2
TOC Concentrations in Samples Collected
Froa the 1988 Lysiaeter System (mg/1)
Plot
1
3
4
6E
6EC
6W
7
8
9
10W
11
BG-SE
BG-T1
BG+2STD
11/3/88
PGUP GBRICK
32
70
47
82
23
256
114
384
168
58
6
*•
44
91
75
15
28
261
189
348
287
248
47
24
18
12/21/88
PGUP GBRICK
53
101
115
106
81
185
190
293
116
142
12
4
57
96
102
61
79
203
236
289
194
60
19
5
AVERAGE
46
89
85
66
53
226
182
329
287
182
77
13
9
27
-------
ATTACHMENT 3
Distances From Top of Well Screen to Water Table (feet)
UtU No.
1
2
3
4
11
12
13
U
IS
U
17
21
22
23
24 .
29
26
31
32
33
Outtr
Grand
Ground
Surface
1.49
1.79
2.25
AbtndonM
2
1.3
1.92
1.92
2.03
1.3
2.01
2.0*
2.12
2.07
2.2*
1.92
1.29
1.12
1.9
2.21
Depth of
Well Ground
•otto* of
^ Screen
70.79
45.27
75.01
1 - July 1916
51.14
39.51
30.06
33.03
31.53
59.96
46.1
25.21
25.28
24.78
40.13
36.03
50.02
27.08
45.79
58.12
Feet to
Deptfc to
Top of
Screen
60.79
35.27
65.01
41.14
29.51
20.06
23.03
41.53
47.96
36.1
15.21
15.28
14.78
30.13
26.02
40.02
17.18
35.89
48.22
• Top of
Ueter
Fran
Ground
56.49
30.12
43.13
13.09
MA
3.22
18.34
22.77
51.66
59.14
1.71
0.91
8
•ottOMd Out
34.8
•ottOMd Out
16.23
38.44
52.37
Screen
to
Ueter
4.3
5.15
21.88
28.05
MA
16.84
4.69
18.76
-10.13
•23.04
13.5
14.37
6.78
•8.78
0.95
•2.55
•4.15
-------
ATTACHMENT 4
Distance fro the Soil Surface to the Piezometric Surface
Dat*
p10« p12a
w21
w22
w23
IUr-85
Jun-85
Jul-85
S«p-85
Mov- 85
D«c-8S
Apr-86
Aug-86
Oct-86
DM-86
Jan-87
Afr-87
Jwi-87
Up-87
Mov-87
Apr-88^
•Uy-88
J«i-88
JU-88
Dw-M
rhere:
2.4
2.2
3.4
3.4
1.8
1.8
1.7
.4
.2
•2
.4
.4
7.
4.
6.
2.1
1.8
3-
.3
.3
.1
.6
.7
.4
.1
.2
0.2
• 1
.4
.4
.8
.2
10.2
7.4
7.9
2.3 3.2
2.0 2.9
3.7 4.4
" 3.7 3.9
1.4 2.3
3.4 2.8
3.5 3.5
7.3 4.7
8.3 4.5
9.8 4.1
9.9 6.1
10.2 7.3
11.6 8.9
10.3 4.1
10.3 4.0
10.2 7.0
10.5 7.3
11.6 ».»
10.4 4.0
11.4 4.3
2.
2.
3.
2.
1.
2.
*
*
2.!
2.1
4.!
4.1
5.4
1.4
O.J
r 3.8 4.1 1.4 2.3
I 5.5 3.5 1.4 2.7
I 7.4 4.9 3.2 5.0
9.0 4.4 2.8 5.7
2.2 1.4 0.4 0.7
2.2 1.4 0.4 0.7
2.5 1.7 0.5 0.7
7.2 4.4 2.8 4.8
8.0 3.5 2.5 4.4
2.8 2.4 0.8 1.2
2.1 1.2 0.4 O.I
3.8 3.2 1.0 1.2
6.1 4.1 2.7 3.8
9.5 5.2 3.9 4.2
11.0 4.1 3.2 4.2
i 2.3 0.0 1.2
1 2.3 0.8 3.3 1.7 0.9 8.0 3.8
i 4.1 3.7 7.5 4.4 3.1 5.3 4.3
> 4.2 4.2 8.4 4.7 3.4 3.9 4.3
t 2.5 1.9 0.5 0.9 2.6
k 2.3 0.2
t 2.3 0.3 2.0 2.3 3.8 0.9 2.7
the letter prefix to the label (p,v)
a piezometer or a monitoring well.
denotes whether it is
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551.1991(09)
MAT 2 9 1991
Robert A. 01sen
Senior Process Engineer
Conoco Billings Refinery
P. 0. Box 2548
Billings, MT 59103-2548
Re: No Migration Petition for Conoco's Land Treatment Facility
(LTF), Billings, MT (F-91-NCBP-FFFFF)
Dear Mr. Olsen:
The purpose of this letter is to respond to issues raised by
Conoco during EPA1s site visit on May 7, 1991. Specifically,
Conoco requested guidance on how they should address
bioaccumulation in the assessment of environmental impacts at the
Billings land treatment facility. To address this issue, Conoco
should first assess the environmental threat that exists at the
LTF. An environmental threat can be assumed to exist at a LTF
only if three criteria are met. These are:
1) Sensitive environmental receptors are within the
vicinity of the site (such as aquatic ecosystems or
endangered or threatened species located within 1000
feet);
2) There is an exposure pathway by which these receptors
may be exposed to contaminants from the site (is there
hydraulic connection between ground water and receptors
or airborne transport of contaminants); and,
3) The receptor could be exposed to the contaminants at
hazardous levels.
If any of these three conditions does not hold, then no
significant ecological threat is presumed to exist and the issue
of bioaccumulation does not need to be addressed. If these
conditions do exist, Conoco should:
1) Determine and state which substances present in
Conoco1s hazardous waste have a bioconcentration factor
(BCF) over 1000, particularly mercury, cadmium, lead,
and zinc. The most reliable source of peer-reviewed
BCF values are EPA ambient water quality criteria
documents;
-------
2) Acknowledge those substances present in the waste and
their potential for bioaccumulation; and,
3) And dismiss possibilities (no hazardous constituents
leaving the treatment zone, no environmental receptors,
no surface runoff).
If you have any additional questions on this issue or
related issues, please call me at (202) 475-9712.
Sincerely,
Newman Smith
Office of Solid Waste
Disposal and Technology Section (OS-343)
cc: Mike Gansecki, Region VIII
Stephanie Wallace, Region VIII Montana Office
Duane L. Robertson, DHES
James Michael, PSPD, osw
Terry Keidan, PSPD, OSW
Howard Finkel, ICF, Inc.
-------
UK ' .0 STATES EMY!80Mtt£*iT*L P8OTEC.
9551.1991(10)
JUN 5 1991
Mr. Allen P. Lusby
Safety/Environmental Director
EFCO Corporation
County Road & Bridle Lane
Monett, Missouri 65708
Dear Mr. Lusby:
We have received your letter of May 16, 1991, concerning
certification/notification for multiple-constituent wastes
subject to the land disposal restrictions.
As you stated in your letter, EFCO Corporation generates
F019 sludge waste and thus must make a determination if the waste
is restricted from land disposal under 40 CFR 268. FO19 waste is
listed in 40 CFR Part 261, Subpart D. Pursuant to 40 CFR
267.7(a), based on knowledge and testing of the extract, the
waste is determined to be restricted from land disposal under
Part 268.
Under 40 CFR 268.7(a)(1), if the waste does not meet the
applicable treatment standards or exceeds applicable prohibition
levels, EFCO is required to notify, in writing, the treatment,
storage, or disposal facility (TSD) what the appropriate
treatment standards and applicable prohibition levels, as set
forth in Subpart D, are.
EFCO makes notification to the TSD that it is managing a
restricted waste under 40 CFR 268 and that the waste does not
meet the applicable treatment standards for Chromium (total), EPA
Waste Code D007 (268.41, Table CCWE).
According to 40 CFR 268.41, Table CCWE, and 40 CFR 268.43,
Table CCW, FO19 waste (nonwastewater) contains three regulated
hazardous constituents. EFCO's FO19 waste does not meet the
applicable treatment standards for the Chromium (total) waste
constituents, but it does meet the applicable treatment standards
for the Cyanides (total) waste constituent.
-------
- 2 -
The Agency's position on the question of multiple-
constituent waste in which some constituents meet the treatment
standards and others do not is that the waste—not individual
constituents—must be certified to meet the standards. The
phraseology is specific regarding "waste" in 268.7(a)(1) and
(a)(2)(ii). Thus, in your case, even though the Cyanides (total)
component meets the standard, you must notify the TSD that your
waste as a whole does not meet the standard because of the
Chromium (total) component. The TSD should, therefore, be told
to treat all constituents of the waste to the treatment
standards.
Should you need additional information, you may contact Pat
FOX at (703) 308-8458.
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Waste
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1991(11)
SEP 27 199!
T.L. Nebrich, Jr.
Waste Technology Services, Inc.
640 Park Place
Niagara Falls, New York 14301
Dear Mr. Nebrich:
I am writing in response to your letter of September 18, 1991
regarding the land disposal restrictions program. In particular,
you raise two questions concerning the applicability of California
list prohibitions following promulgation of the Third Third.
First, you ask what treatment standards must be met to land
dispose of soils or other wastes that are granted a national
capacity variance but must meet California list prohibitions? The
treatment standard that must be met depends on which California
list waste is present. Under 40 CFR 268.42(a)(1), liquid and
nonliquid PCBs of certain .concentrations must be incinerated or
burned in high efficiency boilers. Under 40 CFR 268.32 and
268.43(a), numerical concentrations are specified as prohibition
levels or treatment standards. Any appropriate technology may be
used to meet numerical treatment standards.
Second, you ask whether the California list prohibitions
remaining in effect for HOCs apply only to characteristic wastes
or also to listed wastes containing HOCs? EPA specified in the
preamble to the California list final rule that California list HOC
standards *ar« only applicable to those HOCs that are not covered
by other Agency rulemakings...' 52 Fed. Reg. 25760 at 25773.
Similarly, th* regulations specify at 40 CFR 268.42 (a) (2) that
California list HOC standards "do not apply where the waste is
subject to a part 268, subpart D treatment standard for a specific
HOC (such as a hazardous waste chlorinated solvent for which a
treatment standard is established under [section] 268.41(a)).*
The California list HOC standards apply only to characteristic
wastes because all listed wastes either have their own treatment
standards or, because thev are newlv listed wastes, the California
-------
list prohibitions do not apply; more specific (i.e., waste code-
specific) standards have now been promulgated for all wastes listed
prior to November 1984, and the California list prohibitions do not
apply to wastes listed after November 1984. 55 Fed Reg. at 22674-
22675.
I hope you find this discussion helpful. Please feel free to
contact me at 703-308-8434 if you have any further questions.
Sincerely,
Richard J. Kinch, Chief
Waste Treatment Branch
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
'9551.1991(12)
J 1991
Mr. John R. Kampfhenkel
Chief Environmental Engineer
Koch Refining Company
P.O. Box 2608
Corpus Christi, Texas 78403
Re: No-Migration Petition submitted for Koch Refining1 s Corpus
Christi, Texas Land Treatment Unit (F-91-NKCP-FFFFF)
Dear Mr. Kampfhenkel:
We have reviewed the information Koch Refining Company
(Koch) submitted on February 1, 1991 regarding the no-migration
petition for the Corpus Christi Refinery land treatment unit
(LTU) , and found the additional information on unsaturated zone
and ground-water monitoring useful in answering some of the
earlier questions we had about the petition. However, the
information from Koch did not resolve some of the critical
deficiencies noted in the original petition submission. These
include the presence of hazardous constituents in soil-pore
liquids, below the treatment zone, and in the ground water.
PRESENCE OF HAZARDOUS CONSTITUENTS IN TEE SOIL-PORE LIQUIDS
Your letter suggests that the detection of benzene in soil-
pore liquids was most likely caused by using a pump contaminated
with oil and grease. However, after our review of the type of
lysimeter used by Koch, we do not consider this explanation to be
convincing. Specifically, our examination of the mechanics of
the pressure-vacuum type lysimeter indicates that the pressure-
vacuum pump and the connecting tube do not come in contact with
the liquid sample. Therefore, any contamination occurring from
the pump would be limited to the air pumped into the lysimeter
during the evacuation phase.
During the September 1988 sampling event, 2-butanone and
ethyl benzene were detected at higher levels than was benzene.
Since benzene is a relatively volatile constituent, and is
expected to degrade at a faster rate than 2-butanone or ethyl
benzene, the absence of these more persistent constituents during
2U
aur.ing tfnfC apv,emxfer !»«« Monitoring1
-------
-2-
residual contamination from the September 1988 sampling event, 2-
butanone and ethyl benzene also should have continued to be
present. Your letter also fails to provide any alternative
source or explanation for the detection of 1,2-dichloroethane,
toluene, and styrene in the soil-pore liquids at concentrations
exceeding the health based levels.
In regard to the inorganic constituents, your letter
concludes that "because there are no data available from LY-1
since September 1988, it cannot be determined whether the
concentrations of heavy metals from the LTU soil-pore liquid
samples are the result of a release from the LTU or due to other
factors (e.g., varying background conditions, laboratory
inaccuracies)." Koch's inability to collect background
monitoring data after September 1988 is unfortunate for the
showing you are attempting to make. However, for the purposes of
EPA's data evaluation, a sample was successfully collected from
the background lysimeter (LY-1) during the September 1988
monitoring event when the bulk of the data showing migration also
were collected. Those data show that beryllium, chromium, lead,
and nickel were detected in the active area lysimeters, at
concentrations exceeding the HBLs, but not in the background
sample. The lack of background data from other monitoring events
does not affect the validity of the data obtained from the
September 1988 sample. Without supportive comparative background
data, we are obliged to discount other factors for the
contamination. We, therefore, continue to conclude from Koch's
petition data that hazardous constituents have already migrated
beyond the unit boundary.
PRESENCE OF HAZARDOUS CONSTITUENTS BELOW THE TREATMENT ZONE
Your letter claims that because background soil-core data
have not been collected, EPA cannot assume that data showing
'antimony and beryllium below the treatment zone indicate
migration. While it is unclear why Koch did not collect
background soil cores (i.e.. the permit stipulates that Koch must
collect background soil-core samples within 30 days of permit
issuance - August 31, 1988), in their absence it is impossible to
make a conclusive showing that migration has not occurred. We
also consider the detection of beryllium in soil-pore liquids in
the active area lysimeters to strengthen our conclusion that
beryllium detected in the soil-core sample is from the LTU.
In addition, Koch claims that the detection of organics and
oil and grease below the treatment zone was caused by waste
migrating from Carson's Pit and not the LTU. Koch supports their
claim by stating that concentrations of the organic constituents
increased with depth below the lower treatment zone, and organic
constituents were not detected in any of the soil-core samples
-------
-3-
collected from the three sampling intervals ranging from 1.5 to
5.5 feet.
Although it may be possible for organic constituents and oil
and grease to have originated from Carson's Pit, due to either
mounding or as a direct result of a portion of Carson's Pit
extending beneath the LTU, we do not believe that Koch has
clearly demonstrate^ that* Carson's Pit accounts for the observed
contamination levels and patterns. Your suggestion of Carson's
Pit as the contamination source provides no explanation of the
various data in the petition showing detection of the following
constituents in the 1.5 to 3.25 foot interval in one or more
locations and/or occasions:
benzene, ethyl benzene, xylenes, 1-methylnaphthalene,
3-methylphenol, 7,12-dimethylbenz(a)anthracene, chrysene,
methyl chrysene, naphthalene, phenanthrene, benzo(a)pyrene,
2,4-dinitrophenol, fluoranthene, pyrene, and toluene.
Your claim that organic constituents were not detected in any of
the soil-core samples collected from the three sampling intervals
ranging from 1.5 to 5.5 feet is at odds with these petition data.
We, therefore, continue to believe that wastes are moving through
the unit, and that Koch has failed to demonstrate to a reasonable
degree of certainty that there will be no-migration of hazardous
constituents from the disposal unit.
PRESENCE OF HAZARDOUS CONSTITUENTS IN THE GROUND WATER
Finally, the presence of vanadium above its health based
level in the ground water, as detected in August 1988, remains a
primary concern. Koch claims that the August 1988 monitoring
data may be unreliable and nonrepresentative of the ground water
because inorganic constituents were found in all of the
"monitoring wells, but were not found during subsequent events.
Koch's conclusion that the August 1988 monitoring data may
be invalid is not supported by the fact that low levels of other
inorganic constituents (beryllium, cadmium, nickel, arsenic, and
mercury) were only found during the August event. Rather, the
presence of the inorganic constituents could indicate that
contamination plumes occur sporadically. We note that vanadium
was detected in two of the four downgradient monitoring wells,
but not in the upgradient monitoring wells during the August 1988
sampling event.
Furthermore, based on the petition, we disagree with Koch's
assertion that inorganic constituents were not detected during
subsequent monitoring events. Although not found above its
health-based level, vanadium was detected during the March 1989
monitoring event at concentrations ranging from 0.018 mg/1 to
-------
-4-
0.057 mg/1. In addition, nickel was detected during September
1988, January 1989, and December 1989 sampling events at
concentrations ranging from 0.055 mg/1 to 0.15 mg/1.
In order to help support a claim regarding unreliable
ground-water data, analytical data (e.g.. QC data) indicating
field or laboratory contamination would be necessary. We,
therefore, continue^ to believe that the petition data show that
vanadium has already migrated beyond the unit boundary.
As a result of our review of your supplementary information,
we have concluded that the technical basis still exists for
proposing to deny your petition. After making our recommendation
to EPA's Assistant Administrator for Solid Waste and Emergency
Response, we will proceed to publish a proposed denial in the
Federal Register. If you wish to avoid a negative publication,
you may send a letter withdrawing your petition and acknowledging
that Koch Refining Company considers the petitioned wastes to be
restricted wastes subject to the Third Third Land Disposal
prohibitions. You should forward this letter to:
James Michael, Acting Chief
Assistance Branch (OS-343)
Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Any questions regarding our findings may be submitted in
writing to Mr. Chris Rhyne of my staff.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
cc: James Michael, PSPD, OSW
Chris Rhyne, PSPD, OSW
Bill Honker, Region VI
David Neleigh, Region VI
Minor Hibbs, Texas Water Commission
-------
Summary of Soil-Core Monitoring Data for Oil and Grease (mg/kg)
Soil- Core
#
0' -
1.5'
1.5' -
3.25'
3.25'
-5.0'
5.0' -
5.5'
5.5' -
6.5»
6.5' -
7.5'
06/29/89
1
2
3
4
5
6
75,000
29,500
120,000
190,000
42,000
110,000
160
256
340
46,000
34
520
58
74
1,000
100
<10
18
51
<10
34
50
<10
<10
<10
18
26
<10
<10
<10
-------
^^ 95-51.1991(13)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OP
souo WASTE AND EMERGENCY RESPONSE
Mr. Douglas MacMiHan, Director
Hazardous Waste Policy
National Solid Wastes Management Association
Suite 1000
1730 Rhode Island Ave., N.W.
Washington, DC 20036
Dear Mr. MacMillan:
This letter responds to your inquiry dated October 11, 1990
about several aspects of the Third Third land disposal
restrictions final rule. Your letter includes questions about
the following topics: lab packs, inorganic solid debris,
certification/notification requirements, and the disposal of DO01
ignitable wastes. Responses to the specific questions about each
of these topics are presented below.
1. Lab Packs
Your question concerns the language in 40 CFR 264.316(f) and
40 CFR 265.316(f). You refer specifically to perceived
contradictions between the first and second sentences of these
paragraphs; however, it is assumed that you are actually
concerned with the language of the second and third sentences
which specifies that "[pjersons who incinerate lab packs
according to the requirements in 40 CFR 268.42(c)(1) may use
fiber drums in place of metal outer containers. Such fiber drums
must meet the DOT specifications in 49 CFR 173.12 and be
overpacked according to the requirements in paragraph (b) of this
section." In particular, you request clarification of whether
this language requires fiber drums to be overpacked in metal
drums. It is assumed that your confusion stems either from the
DOT specifications in 49 CFR 173.12, or the overpacking
requirement* in 40 CFR 264.3l6(b) and 40 CFR 265.316(b). The
language of the DOT specifications and the §§ 264.316(b) and
265.316(b) overpacking requirements will be examined below.
The language specifying that fiber drums must meet the DOT
specifications in 49 CFR 173.12 does not require fiber drums to
be overpacked in metal drums. In fact, paragraph (b) of 49 CFR
173.12 states: "The outside packaging must be a DOT
specification metal or fiber drum" [emphasis added].
Moreover, the language specifying that fiber drums must be
overpacked according to the requirements in §§ 264.316(b) and
-------
265.316(b) does not require overpacking of fiber drums in metal
drums. The first sentence of SS 264.316(b) and 265.316(b)
(N[t]he inside containers must be overpacked in an open head DOT-
specification metal shipping container") does not apply because
§§ 264.316(f) and 265.31&(f) clearly state that "[p]ersons who
incinerate lab packs according to the requirements in 40 CFR
268.42(c)(l) may use fiber drums in place of metal outer
containers." The SS 264.316(b) and 265.316(b) language that does
apply/ however, is the requirement to pack a sufficient quantity
of absorbent material around the inner containers to completely
absorb all of the liquid contents of the inside containers,
making the outer container full after packing.
As you mention in your letter, the preamble language on page
22631 of the Third Third final rule explains the Agency's
decision to allow fiber drums to be used as outer containers for
lab packs being incinerated according to the requirements in
40 CFR 268.42(c)(1). The language of SS 264.316(f) and 265.316(f)
does not eliminate this decision by otherwise requiring the fiber
drums to be overpacked in metal drums.
2. Containers
You request clarification of why containers are included in
the "inorganic solid debris" definition. You also ask when an
empty container would be judged to carry a characteristic of
hazardous waste.
By way of background, inorganic solid debris is defined in
40 CFR 268.2(g) as nonfriable inorganic solids contaminated with
0004 - D011 hazardous wastes that are incapable of passing
through a 9.5 mm standard sieve; and that require cutting, or
crushing and grinding in mechanical sizing equipment prior to
stabilization; and, are limited to certain types of debris
specified in subsequent paragraphs. Paragraph (g)(6) of
..$ 268.2 includes metal cans, containers, drums, or tanks in the
definition of inorganic solid debris.
As a further point of background, the answers to your
questions are impacted by whether the container being discussed
is empty as defined at 40 CFR 261.7(b). Under the $ 261.7(b)
provisions, a container that has held hazardous waste (other than
a compressed gas or an acute hazardous waste) is "empty" if it
meets certain criteria. All wastes must have been removed that
can be removed using the practices commonly employed to remove
materials from that type of container. To assure that all waste
has been removed, there may be no more than 2.5 centimeters (one
inch) of residue remaining on the bottom of the container or
inner liner; or no more than 3 percent by weight of the total
.capacity of the container remaining in the container or inner
liner if the container is less than or equal to 110 gallons in
size, or no more than 0.3 percent by weight of the total capacity
-------
of the container remaining in the container or inner liner if the
container i» greater than 110 gallons in size.
In response to your first question, containers are included
in the definition of inorganic solid debris to. cover the possible
scenario of a container that has been discarded by means of land
disposal (as defined in § 268.2), that does not meet the
§ 261.7(b) definition of empty, and that is contaminated with a
characteristic metal waste. This scenario could occur, for
instance, during an excavation at a corrective action site. A
container might be uncovered that is damaged (e.g., crushed) so
that the hazardous waste within it cannot be removed sufficiently
to meet the § 261.7(b) definition of empty. Such a container
(i.e., including its contents) is a hazardous waste subject to
the land disposal restrictions if it is subsequently land
disposed. Furthermore, it is likely that the disposed container
would be considered contaminated debris (such a determination may
depend upon site-specific conditions best made by an authorized
State or EPA Regional representative). If the waste
contaminating this disposed container is a characteristic metal
waste (D004 - D011), the container would likely meet the
§ 268.2(g)(6) criteria of inorganic solid debris, and would thus,
be subject to a national capacity variance until May 8, 1992 (see
§ 268.35(b)).
In response to your second question, a container meeting the
§ 261.7(b) definition of empty may be judged to be a
characteristic metal waste under two scenarios. In the first
scenario, a container that has never held any hazardous waste may
be a characteristic waste if: (1) it is being discarded; and, (2)
if the container is in itself a characteristic waste.
In the second scenario, an empty container (as defined in
§ 261.7(b)) may be a characteristic waste if: (1) it is being
discarded; and, (2) if the container is in itself a
characteristic waste. It should be noted, however, that any
residue remaining in the container is exempt from regulation
under the provisions of S 261.7(a) that states that N[a]ny
hazardous waste remaining in either (i) an empty container or
(ii) an inner liner removed from an empty container, as defined
in paragraph (b) of this section, is not subject to regulation
under Parts 261 through 265, and Parts 268..."
3. Certifications
You request clarification of the record keeping requirements
for a particular scenario: A waste that the generator determines
(based on process knowledge) does not meet the treatment standard
is sent to a treatment facility. The treatment facility
determines the waste does meet the treatment standard. You did
not suggest how such a determination was made. Your question is,
how would the record keeping requirements be affected?
-------
In this particular scenario, the treatment facility should
analyze the waste in order to determine that the waste meets the
treatment standard according to the provisions of their waste
analysis plan. It should be noted, however, that there is no
requirement that treatment facilities analyze each shipment of
waste received, except as specified in their waste analysis plan
(see § 268.7(b). In this particular scenario, however, the
generator has made the determination that the waste must be
treated based on his knowledge of the waste. The treatment
facility is countering the generator's determination with a
determination that the waste meets the treatment standard as
generated; therefore, the Agency believes that it is appropriate
to ask the treatment facility to support their determination with
analytical data. The treatment facility also must complete a
certification that the waste met applicable treatment standards
as generated (see § 268.7(a)(2)(ii), supported by the general
principle expressed in § 268.7(b)(6) requiring treatment
facilities to comply with notice and certification requirements
applicable to generators).
The treatment facility must send the waste analysis data
(see § 268.7(b)(4)(iv)), the certification, and a notification ,
(either the generator's notification may be sent, or the facility
may create a new notification) to the disposal facility. Copies
of the waste analysis data, the generator's notification (as well
as the treatment facility's notification if a new notification
was created), and the certification must be kept as records in
the treatment facility's files.
4. Notification/Certification
A scenario was presented of a TSD company that has a sister
company on adjacent property that recycles "side-stream" and
"off-spec" chemicals and other wastes containing recoverable
amounts of organics by means of a custom distillation process.
This process generates still bottoms and wash waters that are
subject to the land disposal restrictions. These restricted
wastes are piped directly back to tanks at the TSD facility,
sometimes on an intermittent basis, sometimes continuously. The
question is asked: How must these piped transfers of hazardous
wastes from the recycler to the TSD be handled from the
perspective of notification/certification compliance?
Even though the recycling facility and the TSD facility are
sister companies on adjacent property, they would have been
assigned different EPA identification numbers and are thus
considered separate facilities. Therefore, the waste that is
piped to the TSD facility (regardless of whether it is on a
continuous or an intermittent basis) is subject to the record
keeping requirements of § 268.7.
The recycling facility would be subject to the generator
requirements of § 268.7(a), which specify that a notification
must be sent with each shipment of waste (in this case, from the
-------
recycling facility to-the TSD facility). The TSD facility must
comply with the requirements of § 268.7(b). Questions on how
frequently the required paperwork should be sent from the
recycling facility to the TSD (i.e., what constitutes a
"shipment") should be directed to the EPA Regional land disposal
restrictions contact.
5. D001
The question*is whether 40 CFR 264.312 allows for the land
disposal of a D001 waste. Until promulgation of the Third Third
final rule on May 8, 1990, 40 CFR 264.312 (and § 265.312) set out
special management requirements for ignitable or reactive wastes
that wera disposed in a surface impoundment, waste pile, land
treatment unit, or landfill. On page 22553 of the final rule,
however, the Agency explained that these management requirements
are superseded by the treatment standards promulgated in the
Third Third final rule. This means that H[facilities handling
ignitable and reactive wastes will have to comply with the
promulgated treatment standards for these wastes in order to land
dispose them." The Agency made changes to the regulatory
language of §§ 264.312 and 265.312 in the Third Third final rule,
to incorporate the requirement that the treatment standards for
ignitable and reactive wastes must be met prior to land disposal.
Furthermore, the Agency's intent is clearly expressed in the
preamble (55 FR 22553).
Therefore, land disposal is allowed finly. for those D001
wastes that meet the treatment standard. (The treatment standard
for 0001 wastes containing less than 10% total organic carbon
(TOC): deactivation; for DOOl containing greater than 10% TOC:
incineration or fuel substitution; see 40 CFR 268.42, Table 2.)
I hope you find these answers to be helpful. If you have
any further questions, please feel free to contact
Matthew A. Straus at (703) 308-8414.
Sincerely,
rlvia K. Lowrance -"
Director
Office of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551.1991(14)
MAY i 1991
Mr. David R. Saad
Environmental Coordinator
Illinois Refining Division
Marathon Petroleum Company
Robinson, XL 62454
Re: No Migration Petition for the Robinson, Illinois Land
Treatment Facility and Storage Surface Impoundments
(F-91-NMPP-FFFFF)
Dear Mr. Saad:
I understand from Jim Michael and Dave Eberly that the EPA •
Marathon meeting on April 30 was very productive. Your interest
in discussing the proposed response to the Notice of Deficiency
for Robinson's No-Migration petition was welcomed by us. One
procedural question hanging over from that meeting concerns the
best approach for revising Marathon's petition to cover only the
East land treatment unit.
In our judgment, the most efficient approach would be for
you to withdraw your petition for the three surface impoundments
and the two land treatment units and to submit a new petition
limited to the East land treatment unit. That approach would
-simplify four related tasks for Marathon and EPA. First, it
would close out the administrative record on your current
petition. Our recommendation for denial is still on the record,
and your withdrawal would eliminate any need to publish a
decision or to maintain a docket. Second, Marathon would not
have to respond to our Notice of Deficiency, but could instead
use it as a guide in preparing a new petition for the East unit.
Third, a new petition would be easier to prepare than a revision
to the existing petition which would involve excising or editing
discussion of all areas except as they pertain to the East unit.
Finally, a new petition for the East unit would, we believe, be
consistent with any required permit modifications.
-------
We, therefore, recommend a letter of withdrawal for the
existing petition in response to our letter of November 6, 1990
and submission of a new petition for the East unit as soon as
possible. As we stated at our meeting on April 30, we will focus
our review of the new petition on those technical concerns in the
November 6 letter related to the East unit.
Please be assured that Marathon's withdrawal of its original
petition and subsequent submission of the new petition would not
affect Marathon's position in the queue for review and decision-
making by EPA.
If you have any questions on implementing this approach,
please call Dave Eberly on 202-382-4691.
Sincerely,
Elizabeth Cotsworth, Chief
Assistance Branch (OS-343)
cc: Ronald Andes, Marathon
Jim Michael, AB, PSPD, OSW
Dave Eberly, AB, PSPD, OSW
Gail Hruska, EPA Region V
David Deisher, IEPA
-------
9553 - LAND DISPOSAL
RESTRICTIONS
Subpart C
ATKl/l 104/66 kp
-------
9553.1986(02)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
APRIL 86
6. Land Disposal Ban
A petrochemical conpany generates a solid waste that contains traces
of naturally occurring benzene and toluene [The waste is Quenching
oil). Would the presence of these hazardous constituents prohibit
the generator fron land-disposing this waste?
Section 3004(e) of the Solid waste Disposal Act, as amended wy
Section 201 of the Hazardous and Solid Waste Amendments of
1984, prohibits land disposal of certain RCRA hazardous wastes.
On January 14, 1986, (51 FJ? 1602), EPA proposed that the spent
solvents, F001 through F005, be among those wastes banned fron
land disposal ($268.30(b), 51 FR 1763). Both spent toluene
and spent benzene (added to F005 on February 25, 1986, 51 FR
6537) are listed in the F005 group, but only when they meet
the listing as spent solvents.
The ouenching oil does contain the hazardous constituents of
concern, namely benzene and toluene, but does not meet the
listing of F005. The oil does not contain spent benzene or
toluene used for solvent purposes. Accordirnly, the oil would
not be banned from land disposal by the proposed $280.30. The
spent Quenching oil, however, would be subject to other bans on
the disposal of bulk and noncontainerized hazardous (if it
exhibited a characteristic) and non-hazardous liouid wastes in
landfills ($264.314(a), 50 FR 28748, and S264.314(e), 50 FR
28749; $265.314(b), and (f), 50 FR 28750). In the future, the
quenching oil may also be listed as RCRA hazardous waste F030,
depending on the outcome of the rule proposed on November 29,
1985 (50 PR 49170). Within six months of that listing, EPA
would have to make a decision on whether used oil should be
banned from land disposal per $3004(g)(4).
Source: Alan Corson (202) 382-4770
Research: Jim Ginley
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C*»IK JNM&NTAL PRO TEC i ION AGENCY
9553.1986(03)
rrr
Honorable Thomas S. Foley
House of Representatives
Washington, DC 20515
Dear Mr. Foleyi
Thank you for October 27, 1986, letter on behalf of
your constituent, Mrs. Eleanore Cole. Mrs. Cole is concerned
about the regulations governing disposal of dry cleaning
cartridge filters containing fluorocarbons.
The fluorocarbon solvent used by Mrs. Cole is probably
Valclene*, a product commonly used in drycleaning operations.
Valclene, which is a trade name, is also known as fluorocarbon
113 or trichlorotrifluoroethan*. Trichlorotrifluoro«than«
is listed as a hazardous waste in 40 CPU Part 261, Subpart
D. It has been assigned the Environmental Protection Agency
(EPA) Hazardous Waste Number F002.
As you know, in the Hazardous and Solid Waste Amendments
of 1984 (HSWA), Congress required EPA to restrict the land
disposal of dioxin-containing and spent solvent wastes by
November 8, 1986. These waste streams were singled out for
immediate action because of the special hazards they pose
when land disposed. Solvents, in particular, easily destroy
landfill liners and help to mobilize other hazardous constit-
uents in landfills. Valclene is an P002 solvent. The POO2
solvents are among those which the Agency was required to
restrict frost land disposal by November 8, 1986.
In ias?le*enting the land disposal restrictions program,
however, BFA is authorized to grant extensions to the effec-
tive date of the restrictions if insufficient national alter-
native treatment capacity exists. EPA is granting a nationwide
two-year variance to the effective date for certain solvent
wastes due to capacity shortfalls. The solvent wastes which
have been granted the variance includes
o solvent waste generated by a small quantity generator
of 100 to 1000 kilograms of hazardous waste per
month, and
-------
o solvent waste which is a solvent-water mixture con-
taining less than one percent total F001 - F005
solvent constituents or containing less than one
percent total organic carbon.
Consequently, any of Mrs. Cole's plants that generate between
100 and 1000 kilograms (220 to 2200 pounds) per month will
not be prohibited from land disposal until November 8, 1988.
In addition, some plants may fall within the conditional
exclusion for generators that generate less than 100 kg (or
220 pounds) of hazardous waste in a calendar month. Under
this exclusion, these generators need only ensure that their
wastes are managed at legitimate recycling facilities or at
facilities permitted, licensed, or registered by the State
to manage municipal or industrial solid waste.
EPA is aware of the impact that our regulations, including
these land disposal restrictions, will have on small businesses,
and we have taken a number of steps to help these businesses
cope. Please find enclosed a copy of a new handbook for small
business explaining the small quantity generator hazardous
waste regulations, and a brief question-and-answer brochure
on the land disposal restrictions. Also included is a dry
cleaning and laundries "fact sheet" we had developed to
assist various industries in identifying their wastes.
The Agency is currently reviewing a rulemaking petition
submitted on behalf of the Alliance of Textile Care Associa-
tions which seeks to have EPA establish a level of spent
solvent below which a drycleaning cartridge filter could be
considered nonhazardous. At this time, however, any amount
of a listed solvent is considered to be of regulatory concern
and a hazardous waste. The Agency hopes to complete an
initial review of the petition within the next few weeks.
At that time we will either recommend a decision on the peti-
tion or request additional information and clarification as
necessary.
I hope this information will be helpful to you in responding
to your constituent. If I can be of any further assistance,
please let met know.
Sincerely,
J. Winston Porter
Assistant Administrator
Enclosures
-------
UN ^ STATES ENVIRONMENTAL PROTECT " AGENCY
1
9553.1986(04
DEC 301986
MEMORANDUM
SUBJECT: Technical Support Document for BOAT
FROMi Eileen D. Claussen, Director
Characterization and Assessment Division
TO; Regional Waste Management Division Directors
As you know, the treatment standards for land disposal of
F001-F005 spent solvents were promulgated on November 7. 1986.
The technical support for the development of these standards is
contained in the three volume document titled Best Demonstrated
Available Technology (BOAT) Background Document for FOOi-FOO?
Spent Solvents"Two copies of the three volume set have been
attached.
In addition to detailing the development of treatment
standards, there is a significant amount of data and information
which you may find helpful in implementing the land disposal
restrictions program. These data and information includes
- Summary of characterization data on spent solvents
affected by this rule.
- Identification of industries which generate these
solvents and locations of these industries by region
and state.
- Complete data sets used in developing BOAT. These
data sets show all constituents contained in the
waste as well as various pollutant parameters.
- Discussion of applicable technologies as well as
design and operating parameters that need to be
taken into account in determining how well these
technologies can treat particular vaa+M.
-------
With regard to the last item above, we would like to emphasize
that the treatment standards promulgated do not require the use
of a particular technology; as a consequence, you should be aware
that, in "certain instances, some of the other technologies dis-
cussed may provide less expensive alternatives to comply with the
land disposal restrictions. Batch distillation, for example, may
be an alternative to incineration for some spent solvents with
high solid concentrations, if the temperature and duration of the
batch result in a residue that complies with the TCLP leachate
concentration for the particular solvent.
You should be aware that the BOAT background document will
provide the basis for Agency decisions regarding treatment
variances. We are currently developing a guidance document for
treatment variances which will more fully discuss this process.
Other areas where the BOAT document may be of help is in various
permitting activities especially as related to treatment design
and operation, corrective action treatment, and helping states
determine resources required for implementing the land disposal
restriction program.
If you have any questions on how the standards were
developed or the application of the technologies, please call
Stephen R. Weil at 202-382-4770 or Janes R. Berlow at 202-382-7917.
cci Robert Dellinger
Stephen Weil
Bruce Weddle
Joseph Carra
David Pepson
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9553.1987(01)
January 12, 1987
Ray D. Mclntosh, Manager
Environmental Engineering
IBM General Products Division
Department 04C
Tucson, Arizona 85744
Dear Mr. Mclntosh:
The Environmental Protection Agency (EPA) has completed a
detailed review of your July 10, 1986, application for an
extension of the effective date of the land disposal restrictions
for the solvent-bearing wastewater, sludge, and brine treated and
stored in surface impoundments at your IBM facility in Tucson,
Arizona. The EPA did not take final action on your petition
until promulgation of the land disposal restrictions final rule
(51 FR 40572, November 7, 1986) which provides, among other
things, a 2-year national variance extending the effective date
of the land disposal restrictions for wastewaters and sludges
containing less than 1 percent total F001-F005 solvents to
November 8, 1988. Because the wastes treated and stored in the
surface impoundments at the Tucson facility meet this criterion,
these wastes are subject to the variance. Thus, your petition is
mooted by the November 7, 1988, final rule.
While the variance is in effect, you may continue to treat
and store restricted wastes in the surface impoundments, provided
that each new, expanded, or replacement surface impoundment meets
the minimum technological requirements specified in section
3004(o) of RCRA. Any wastes containing F001-F005 solvents which
meet or exceed the 1 percent cutoff are restricted from placement
in these impoundments and must be treated to the applicable
levels in Table CCWE of 40 CFR 268.41, or be the subject of a
successful case-by-case extension of the effective date.
According to the information provided in your application,
on-site construction of treatment and storage tanks is expected
to be underway by February 1987, and completed by the November 8,
1988, effective date. If you anticipate that the tanks will not
be completed by the effective date, you may pursue one of two
options. You can submit an application for an extension of the
effective date pursuant to the provisions in 40 CFR 268.5, or you
may continue to treat and store in the impoundments after the
effective date in accordance with the exemption for treatment
surface impoundments (40 CFR 268.4).
This document has been retyped from the original.
-------
-2-
If you choose to submit an application for an extension of
the effective date, please submit the application at least six
months in advance of the effective date to allow the Agency lead
time to review the application. If the Agency approves the
application and grants an extension of the effective date, you
may continue treating and storing restricted wastes in the
impoundments for an additional 1-year period (renewable once).
If you pursue the exemption for treatment in surface
impoundments, you may continue to treat and store the solvent
wastes in the impoundments provided that the following
requirements are met (see 40 CFR 268.4 for details):
1) treatment occurs in the impoundments,
2) treatment residuals that do not meet the treatment
standards in Subpart D of Part 263, or are not delisted
must be removed at least annually,
3) the impoundments must meet the requirements of section
3004(o), unless exempted pursuant to the provisions in
§268.4(a)(3)(i)i, (ii) or (iii), and
4) a written certification is submitted to the Regional
Administrator stating that the requirements of
§268.4(a)(3) have been met along with a copy of the
waste analysis plan required under §268.4(a) (2).
If you have any questions, you may contact Stephen R. Weil
or Jacqueline Sales of my staff at (202) 382-4770.
Sincerely,
Alan Corson, Acting Director
Characterization and
Assessment Division
cc: Mark Kamiya, Region IX
Alan Roesler, Arizona Department of Health
This document has been retyped from the original.
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UNITED STATES ENV|RUNMEH- M. PROTECTION AGENCY
9553.1987(02)
JAN I 3 I9ST7
John H. Fasto
Jtone Industrial rivision
J. T,. Clark Manufacturing
51st Avenue 6 Cree Lane
College ParV, Maryland 20740
Dear Mr. Fasto:
In your letter of October 10, 19R6, you requested an exeTtion
to the "Schedule for Land Disoosal Restrictions" nublishe'* in t*e
Federal Register on May 20, 1906, (SI FP_ 19300). Since you have
that notice, you are aware of the nrohibitions on the Ian* disposal
cf untreated hazardous wastes, and the requirement that ""PA set
treatment standards by certain dates.
On November 7, 1986, the final Land Disposal Restrictions
Rule for Solvents and Dioxins was published in the F^dpfa 1 P«*cister
(51 FR 40572). In this rule, EPA has established treatnent stan*-
ards~~?or land disposal of certain solvent- and dioxin-contajnin-
hazardous wastes, including the F005 waste stream generate* bv
your company. I have enclosed a copy of this remilation for vonr
information. The treatment standards do not recruire incineration.
The standards are set as a concentration of a solvent constituent
in an extract from a waste or a waste treatment residual. It is
possible that your waste stream, the solid polyester tvpe adhesive,
may meet these treatment standards, whJch are measured hv use o*
the toxicity characteristic leachinn procedure (TCT..P) (Arnen^ir T
in the regulation, page 40643). You should have a laboratorv
qualified to do this procedure (there are ciuite a few) test vour
waste material to see if it meets the treatment standards without
treatment such as incineration.
There are some exceptions to the requirement that the wastes
meet the treatment standards. The first of th« exceptions requires
that a petition be submitted to FPA and approved based on a showino
that there will be no migration of hazardous constituents for as
long as the waste remains hazardous. The standard for approval
of this type of petition was specified bv Conoress in the Hazardous
and Solid Waste Amendments of 1984 (HFWA). In reality this is a
very limited exception and may not be of much use to you.
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% second exception is more accurately described as an
exto. ion of -che effective date. If the waste contains less than
one percent F001-P005 solvents, the waste can be land disnosed,
subject to certain limitations, without meeting the treatment
standards until November *, 19P8. FPA has us*d its authorltv
under HSWA. to extend the effective date for thes* wastes based
on a lack of adequate alternative treatment capacity. Tbe
has also extended the effective date for Generators of
IOC and 1000 kilograms per month of hazardous waste. '•'Vile I
not know the density of your waste, a Generation rate of 17
every three months might put you in this small ouantity Generator
category, which would at least temporarily solve your problem.
EPA i» aware that these requirements may significantlv raise
the waste disposal costs for industry. However, we are limite*
by the law in our ability to consider wen factors in Mttina
treatment standards.
If you have any further questions, please feel *ree to write
or call Stephen P. Weil at (202) 382-477P.
Sincerely,
Mareia R. Williams
rirector
Office of Solid waste
Enclosure
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9553.1987(03)
January 20, 1987
Mr. B.B. Meyer
Aerojet-General
Sacramento Environmental Operations
Post Office Box 15699c
Department 1520, Building 46010
Sacramento, California 95813
Dear Mr. Meyer:
This is in response to your December 15, 1986 letter to
Eileen Claussen requesting that the Agency clarify its regulatory
interpretation of voluntary treatment prior to land disposal.
Your example is that of having a waste which contains less than 1
percent F001-F005 spent solvents and is eligible for the two-year
variance, but the generator voluntarily treats the waste prior to
land disposal, either to reduce the solvent content or to reduce
other hazardous properties of the waste. Your question is then,
would the treatment residual then be required to meet the
treatment standards of 40 CFR 268 Subpart D prior to land
disposal?
In general, the answer to the question above is yes; by the
ban effective dates all hazardous wastes not treated to the
specified treatment levels are prohibited from land disposal.
Specifically, if the generator voluntarily treats the F001-F005
spent solvents using the best demonstrated available technology
(BOAT), and the treatment residual contains less than 1 percent
F001-F005 spent solvents, the treatment residual can be land
disposed until November 8, 1988. After November 8, 1988,
however, if the treatment residual does not meet the treatment
standard as specified in 40 CFR 268 Subpart D, Aerojet-General
can either apply for a treatability variance, submit a no-
migration petition or continue to treat your wastes to the
specified treatment levels prior to land disposal.
Similarly, if the "other hazardous properties", i.e.
ignitability, are treated and the treatment residual somehow is
concentrated and thus contains more than one percent F001-F005
spent solvents, the treatment residual must be either treated to
the specified treatment levels prior to land disposal, or
Aerojet-General can apply for a treatability variance, or submit
a no-migration petition. If the treatment residual contains less
This document has been retyped from the original.
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-2-
than one percent F001-F005 spent solvents, land disposal can
occur until November 8, 1988. On the other hand, if through the
use of BOAT the treatment residual is rendered noncharacteristic,
i.e. nonignitable, and thus is nonhazardous, the waste will no
longer be subject to the land disposal restrictions.
If you have any further questions please call either
Jacqueline Sales or myself at (202) 382-4770.
Sincerely,
Stephen Weil, Chief
Land Disposal Restrictions Branch
This document has jbeen retyped from the original.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
APR 2 7 1987 »»•»««»,
Vr. Pobert Filter
Assistant Environmental Vanaaer
s & w waste Inc.
115 Jacobus Avenue
South Kearny, !7ew Jersey 07032
Dear Mr. Fixter:
This is in response to your letter of February 2?,
concernino the anolicability of. *2*8.30(*)(3) to any solid or
sludae that contains less than It of the listed F09J.-FP05
constituents. Specifically, you referred to solvent contaminated
raqs which have been analyzed and determined to contain Jess than
1% listed solvents.
The land disposal restrictions final rule (51 FP 40*72,
TTovewber 7, 1906) does not apnly immediately to those FCTOi-roP1?
scent solvent wastes that contain less than 1* solvent.e. "*h<;se
wastes are subject to a two-year extension of the effective
based on insufficient national capacity. The solvent wastes
covered by the extension include solvent-water mixtures,
containing sludges, solvent contaminated soils (non- CrPCL*
or PCPA corrective action) and solids. However, in the
7, 1996 final rule, the Agency inadvertently oMttw* the re*erenc*»
to "solids" from the reoulatory lanouaoe in ?260.30(a>(3).
£9 you correctly noted in your letter, the Aoency intended *or
aolvent-containino solids (e.o., raos, pipes, paper) to he in-
cluded with those materials covered under ?2*8.30(«)(3). "^olv^nt-
containing sludge* and solids" are correctly identified in the
preamble to the TTovember 7, 1986 final rule as among the wastes
granted a two-year national variance (51 FP 4P615). AS such,
solvent contaiDinat*d raas are subject to the two-year nationwide
variance provided they contain less than 1% total FOPl-FOOri
solvent constituents.
He are currently working on a technical correction notice
that will correct errors contained in the preamble and remilatorv
language of the final rule, including the revision to *2*».30(*M?)
to include "solids". We expect to publish this notice in
FEDEPAL PFGISTER within the next couple nontha.
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I hope this information adeauately stresses vour concerns
Please feel free to contact me at (202) 475-f715, if you
further questions.
SincereJy,
William P. Fortune
Fnvironnental Protection ?
Land DisnoB^l Restrictions Pranch
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
5553.1987(09)
\ 8
Mr. Kenneth W. Kubofcik
President
The Branford Companies
Post Office Box 1056
Branford, Connecticut 06405
Dear Mr. Kubofcifc:
This is in response to your letter of May 11, 1907, con-
cerning the applicability of the California list land disposal
restrictions to lead-plastic bags Manufactured by your company.
As you stated, these bags are used to line druns and containers
for the storage, containment, and disposal of low level radioactive
waste.
The California list prohibitions restrict the land disposal
of hazardous wastes containing California list constituents above
specified concentration levels- With the exception of hazardous
wastes containing halogenatcd organic compounds (in total con-
c~ntration greater than or equal to 10CO eg/kg), the restricted
wastes are in liquid form. Although the California list covers
lead-containing waetes, it is confined to liquid hazardous wastes,
that contain lead or lead compounds. Based on the information
provided in your letter, the lead-plastic radiation shielding
baas are not liquid hazardous wastes, nor do the bags appear
to meet any other California list waste criteria. As such,
the lead-plastic bags would not be subject to the California
list prohibitions when discarded.
I hope this information adequately addresses your concerns.
Please feel free to contact Bill Fortune, of my staff at (202)
475-6715, if you have any further questions.
Sincerely,
Stephen R. Weil, Chief
Land Disposal Restrictions Branch
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UNITED .^res ENVIRONMENTAL PROTECTION AGENCY
9553.1987(11)
JUL 161987
Mr. John B. Slemmer
Environmental Manager
Sol id Tex Systems, Inc.
5371 Cook Road
Post Office Box 888
Morrow, Georgia 30260-0888
Dear Mr. Slemmen
This letter responds to your letter to Matt Straus, dated
April 21, 1987, in which you request clarification of the regulatory
status of drums generated from the solvent recovery process at
your facility. In particular, your letter requests clarification
of the less than It total F001-F005 solvents determination for
purposes of the 2-year national capacity variance fror the effective
date of the solvents land disposal restrictions (51 PR 40572
November 7, 1966). I apologize for the delay in responding to
your inquirer however, we have been using all available resource*
to meet the July 8, 1987 land disposal restrictions statutory
deadline.
As described in your letter, SolidTek's process recovers a*
much solvent from a drum as possible, leavina one-half to eioht
inches of nonrecoverable sludoe containing restricted solvent
wastes. At this point, liquids in the sludae are solidified and
the drum is crushed, alona with the solidified sludge, to reduce
the overall volume. The crushed drum* are then shipped to a
RCFA hazardous waste landfill. In order to determine whether
the crushed drum* can be land disposed without further treatment,
you ask if the weight of the drum should be included when Deter-
mining whether the waste is eligible for the 2-year national
capacity variance for solvent wastes containing less than 1%
total solvent*.
You My be unaware of a fundamental issue raised by your
letter whioh supersedes the questions you asked. Itoe determination
as to the applicability of the 2-year nationwide variance for wastes
which contain less than 1% total POO1-POO5 solvent constituents is
to be made by the initial generator of the waste before the waste
has been treatedr therefore, the variance is not applicable to
the residual from the recovery of restricted waste. For ourpose
of the variance, treatment residuals are not considered newlv
Generated wastes.
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Furthermore, the preamble to the solvents final rule
(51 FR 40575, 40615) states the general principle that once a
hazardous waste is prohibited, it must be treated until it meets
the applicable treatment standards in Table CCWE. Therefore,
the solidified residual from the recovery of P001-F005 solvents
must meet the applicable treateent standard before disposal at
a Subtitle C landfill. These issues are clarified in a notice
published on June 4, 1987 (52 PP 21012) which corrects and
clarifies various parts of the solvents land disposal restrictions
final rule.
I hope this letter clearly answers your questions reoardino
the land disposal restrictions. You way contact me at (202) 38?-
4770, if you have additional questions.
Sincerely,
Jacqueline Sales, Chief
Regulation Development Section
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
AUG I 0 1987
OFFICE OF
SOLID WASTE AND EMEHGENC* «6SCONS6
Mr. Michael Steinberg, Esq.
Morgan, Lewis, & Bockius
1800 M Street, N.W.
Washington, D.C. 20036
Dear Mr. Steinberg:
On June 9, 1987, your client, the Safety-Kleen Corporation,
requested that the Environmental Protection Agency (EPA) stay
a portion of its June 4 correction notice to the initial land
disposal prohibition rule for solvents. After careful consid-
eration, I have decided to deny your request. My reasons are
as follows:
1. Safety-Kleen had adequate notice that the distil-
lation bottoms it produces while treating solvents would be
subject to the treatment requirements established by the
prohibition rule. The rule at issue states that if an initial
generator's waste contains greater than 1% prohibited solvent,
then any residues from treating that waste must be treated to
the Resource Conservation and Recovery Act (RCRA) Section
3004(m) treatment level unless the initial waste is exempt
from some independent reason, such as being generated by a
small quantity generator. We think that a careful reading of
the November 7 final rule shows -that it includes this require-
ment. For example, only generators can certify to a disposal
facility that the waste is subject to a variance. Treatment
facilities, by contrast, must certify that the residues they
generate meet the treatment standards (see §§268.7(a) (1) and
268. 7 (b) (2) ). Section 268.40 likewise states that treatment
residues must be treated to meet the applicable treatment
standard.
The preamble to the final rule confirms that this was
the Agency's intent. The Agency stated explicitly that the
determination of whether a waste is prohibited must be made
by the initial generator, (see 51 Federal Register at 44620).
The Agency also provided a series of flow charts illustrating
the rule's operation which again indicate without ambiguity
that only the initial generator* and not a treatment facility,
determines if a waste is prohibited (see 51 Federal Register
40622, 40624). A* EPA explained in the preamble to the
proposed rule, Safety-Kleen cannot consider itself to be a
generator. In that preamble, EPA clearly stated that it does
not consider persons who produce distillation bottoms while
treating solvents to be generators of hazardous waste.
-------
Finally, EPA explicitly addressed distillation bottoms
from spent solvent reclamation in the Background Document to
the final rule on capacity determinations. EPA noted that
solvent reclamation would produce distillation bottoms, and
stated that these distillation bottoms would require treatment
to the levels set under Section 3004(m). EPA included the
expected volume of distillation bottoms in its estimate of the
total volume of solvent wastes requiring treatment.
2. The principle at stake here is an important one.
It is that the 1% capacity variance level not become the de
facto treatment level (see 51 FR 44,620). EPA would stay a
rule illustrating this principle" only under the most compelling
circumstances .
I feel it necessary to mention that Safety-Kleen could
have participated much more actively in the rulemaking and
alerted the Office of Solid Waste about its situation. Your
only comment to the Agency's proposed rule was filed long
after close of the comment period, and indicated that Safety-
Kleen realized it would have to treat its treatment residues
before they could be land disposed. Safety-Kleen1 s participa-
tion seems particularly incumbent because the issue of capacity
to treat solvent reclamation treatment residues was raised
specifically by EPA for public comment (see 51 Federal' Register
1724, 1727 (Jan. 14, 1.986)).
I regret that Safety-Kleen apparently received incorrect
advice from an EPA official regarding the scop* of the November 7
rule, but the most reliable indication of what a rule means
is the regulatory language itself, and the explanatory preamble.
As mentioned earlier, both the preamble and the regulatory
language indicate that Safety-Kleen 's residues must be treated
to the applicable treatment standards.
I have decided to deny your request for these reasons.
If the facts are as you state, Safety-Kleen could be eligible
for a case-by-case variance under $268.5. The Agency will
process any such applications expeditiously. Please contact
Rhonda Craig at 382-4800 if you have any questions regarding
the case-by-case variances.
Sincerely,
J. Winston Porter
Assistant Administrator
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9553.1987(13)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
SEPTEMBER 87
Land Disposal Restrictions - Halogenated Organic Carbons
An F001/F002 waste subject to the November 7, 1986
Federal Register land disposal restrictions meets the
criteria for the 1% national variance specified in
Section 268.30. In the July 8, 1987 Federal Register,
treatment standards were set for most HOCs. F001 and
F002 wastes are also HOCs. Would the F001 F002
wastestrearo be subject to the newly-promulgated HOC
treatment standards even though it has been granted a
two-year variance F005 solvent wastes?
The solvent would only be subject to the treatment
standards and effective date in the November 1,
1986 rule. In 52 FR 25762, it says that "where
treatment standards and prohibition effective dates
are promulgated for California list waste
constituents that are also covered under the
November 7, 1986 rule, the treatment standards and
effective dates from the prior rule apply."
The general rule is that where a constituent is
subject to more than one treatment standard, the
treatment standard (and effective date) for the
more specific constituent applies. Example: the
F001-F005 treatment standard/effective date
presides because, as a subset of the HOCs, it is
more specific.
Also, for a waste where two or more treatment
standards apply because of different constituents
(e.g., F001 and Lead), both would apply with
respective effective dates. In the case above
mixed with lead, the F001/F002 treatment standards
and effective date would apply for the solvent
constituents (rather than the HOC standard) and
would get a variance until 11/8/88. However, the
lead would be subject to the requirements effective
7/8/87.
Source: Mitch Kidwell (202) 382-4770
Research: Mark Janaskie
-4-
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9553.1937(14)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
I 5 IPR7
Off\Cf Of
SOLID WASTE AND EMERGENCY RESPONSE
Honorable Alan Cranston
United States Senate
Washington, D.C. 20510
Dear Senator Cranston:
Thank you for your letter of September 11, 1987, forwarding
the concerns of your constituent, Ms. Beverly Full. The primary
focus of Ms. Full's letter relates to the December 11, 1986, (51
FR 44714) proposal to prohibit land disposal of hazardous wastes
containing California list constituents at or above statutory
concentration levels.
Several events have occurred regarding the land disposal
restrictions program since Ms. Full's February 1987
correspondence. Ms. Full requested that a hearing be held to
address the concerns identified in her letter. Such a hearing
(Oversight Hearing on RCRA Land Disposal Ban) was conducted
before the Subcommittee on Hazardous Waste and Toxic Substances
of the Senate Committee on Environment and Public Works on
June 5, 1987. At this hearing, I had the opportunity to discuss
the Agency's progress in implementing the land disposal
restrictions program. Shortly after this Senate hearing, on
July 8, 1987, (52 IB 25760), the Agency promulgated treatment
standards and corresponding effective dates for the California
list waste containing PCB's and Halogenated Organic Compounds,
and codified the statutory prohibition levels for certain
corrosive wastes. Furthermore, this final rulemaking
established testing requirements for determining compliance with
the prohibition, an aspect of the regulatory framework which
effects the character of those wastes that are considered
restricted.
The Resource Conservation and Recovery Act (RCRA) section
3004(d) directs the Environmental Protection Agency (EPA) to
substitute more stringent concentration levels for those in the
statute when necessary to protect human health and the
environment. In considering the protectiveness of the
concentration levels for California list wastes, the Agency
examined both the toxicity of the California list constituents
and the potential for exposure to these waste in the context of
their management. As a result of such considerations, the
Agency published a Notice (August 12, 1987, 52 £B 29992)
requesting information and comment on issues related to
-------
lowering the prohibition levels for California list metal-
bearing cyanide-containing wastes. The suggested prohibition
levels are similar to those requested by Ms. Full — levels 100
times current EPA drinking water standards. As indicated in the
Notice, the Agency is considering promulgating" prohibitions on
the California list metal and cyanide wastes at levels 100 times
the National Interim Primary DrinJcing Water Standards, or in the
case of nickel, thallium, and cyanide (for which no drinking
water standards exist), 100 times alternative health-based
levels.
MS. Full expressed concern about the design features
required of units receiving wastes that are subject to a
variance. Under the current regulatory framework, wastes that
are covered by a national variance or case-by-case extension of
the effective date must be placed in a facility that is in
compliance with the minimum technological requirements of RCRA
Section 3004(o). These requirements, including double liner,
leachate collection system, and ground water monitoring system,
apply to new units, replacement units, or lateral expansions of
existing landfills or surface impoundments at existing
facilities. With respect to "no migration" petitions, it must
be demonstrated, to a reasonable degree of certainty, that land
disposal of restricted wastes will not allow migration of
hazardous constituents from the disposal unit or injection zone
for as long as the wastes remain hazardous.
EPA shares Ms. Full's concern about the timing involved in
identifying appropriate treatment technologies for metal
wastes. The Agency did not establish prohibition levels or
'treatment standards for California list metal and cyanide wastes
in the July 8, 1987, final rule. Instead, in the August 12,
1987 Notice, the Agency has requested further comment on
lowering the statutory levels for these wastes to levels 100
times drinking water standards or alternative health-based
levels. The Agency believes that further evaluation of the
statutory prohibition levels is warranted based on a number of
concerns including these wastes' mobility and toxicity, and the
land disposal practices employed for these wastes. The Agency
evaluated technologies used to treat these wastes and provides
treatment performance data corroborating that the California
list metals and cyanides can be treated to achieve the suggested
prohibition levels. Because of the potential variability of
these California list waste categories, the Agency does not
-------
believe it possible at this time to establish more specific
treatment standards. Therefore, the Agency is evaluating
treatment standards that would be achievable by a wide group of
wastes. Based upon this evaluation, the Agency will make more
specific treatment standard determinations in accordance with
the final schedule for implementing the land disposal
restrictions (51 £B 19300).
If I can be of any further assistance, please let me know.
Sincerely,
J. Winston Porter
Assistant Administrator
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9553.1987(15)
December 3, 1987
Honorable Max Baucus
United States Senate
Washington, D.C. 20510
Dear Senator Baucus:
Than* you for your November 3, 1987, letter concerning the
prohibitions on land disposal of California list metal-bearing
and cyanide-containing wastes.
The statutory language in the Resource Conservation and
Recovery Act (RCRA) Section 3004(d) identifies California list
wastes containing free cyanides and metals as waste groups that
include "liquid hazardous waste, including free liquids
associated with any solid or sludge." In consideration of this
language, the Agency believed it appropriate to require that the
concentration of restricted constituents in the filtrate,
generated from the Paint Filter Liquids Test, be evaluated in
determining compliance with the statutory prohibition levels.
However, as noted in the August 12, 1987, Notice of Data
Availability (52 EB 29998), serious consideration will be given
to the adoption of treatment standards expressed as constituent
concentrations using the Extraction Procedure (EP) toxicity test
or Toxicity Characteristic Leaching Procedure (TCLP). Such an
approach more closely reflects the analytical methodology used
for the data presented in the Notice. Conversely, the Agency
must also take into account that a number of commenters to the
December 11, 1986, California list proposed rule were opposed to
the use of a leach test, specifically the TCLP, to develop a
waste extract for further testing.
The public comment period for the August i2, 1987, Notice
was extended an additional 30 days and recently closed on
November 12, 1987. The Agency is currently in the process of
reviewing cojHMnts and analyzing the submitted data. After
considerinejfcll public comments received on the issues addressed
in this Notice, the Agency plans to proceed aggressively toward
promulgation of a final rule.
If I can be of further assistance, please let-me know.
Sincerely,
Winston Porter
(Assistant AiMuu
IROL
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UHITED STATES ENVIRONMENTAL PROTECTION AGENCY
9553.1987(16)
18 """
Mr. Douglas w. Jackson
Project Manager
Rollins Environmental Services (FS) Inc.
9000 Gulf Freeway, Suite 240
Houston, Texas 77017
Dear Mr. Jackson:
This is in response to your letter of October 15, 1987,
concerning your questions on appropriate treatment methods for
elemental mercury that were addressed in a telephone conver-
sation with William Fortune of my staff. Specifically, you
asked whether broken mercury thermometers might be treated with
sulfur to form mercuric sulfate, followed by encapsulation of
the mercuric sulfate/glass mixture in concrete prior to being
land disposed.
As you are aware, the Agency did not establish treatment
standards in the July 8, 1987 final rule for liquid hazardous
wastes containing metals (including mercury and/or compounds).
As a result, California list wastes containing mercury are
currently subject to the statutory prohibition»WB and thus
are prohibited from land disposal unless treated to concen-
trations below the prohibition level or rendered nonliquid.
The Agency has indicated (see 52 FR 2577f) that certain
solidification technologies may be considered appropriate
treatment for California list metals, at least until treatment
standards are adopted for these wastes. Solidification
techniques, where reagents (i.e., substances that take part
in reactions or processes) are added that produce physical or
chemical changes, or otherwise immobilize the hazardous
constituents, would be considered legitimate treatment (rather
than dilution).
With respect to hazardous waste management practices in
general, it has been the Agency's preference that waste
minimization methods (e.g., reclamation, use or reuse of a
waste) be utilized over treatment and land disposal options.
Since the broken thermometers contain mercury in its elemental
form, this waste would appear to have considerable potential
for recovery and reuse. Prior to treating and disposing of
-------
these broken thermometers, we suggest that you investigate the
availability of facilities (such as secondary mercury firms)
willing to accept these wastes. If a recovery and reuse option
is not feasible, your proposed solidification technique - treat
the liquid elemental mercury with sulfur to produce mercuric
sulfate (note: any reaction would likely form mercuric
sulfide), encapsulate in concrete, and dispose in a landfill -
would, be in compliance with the prohibitions on California list
metals provided it immobilizes or chemically fixes the mercury,
and thereby legitimately renders the waste nonliquid, or if it
reduces the concentrations below the specified prohibition
levels.
I hope this information addresses your concerns. Please
feel free to contact William Fortune, of my staff at
(232) 475-6715, if you have further questions.
Sincerely,
Stephen R. Weil, Chief
Land Disposal Restrictions Branch
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RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
FEBRUARY 88 9553.1988,0!,
Land Disposal Restrictions
The November 7, 1986 Federal Register (51 PR 40572) codified
the land disposal restrictions for solvent and dioxin wastes
identified in 40 CFR 261.31. At that time all of these
solvent and dioxin wastes were restricted from surface land
disposal unless they met the appropriate treatment standards
set forth in Section 268.41. There was a national variance
from the effective date (November 8, 1986) for these
requirements which was given to generators of 100-1000
kilograms of hazardous waste per month (small quantity
generators). This variance was granted because EPA believed
there was not enough capacity to handle this waste (see 51 FR
40615). Small quantity generators (SQGs) would be subject to
the treatment standards on November 8, 1988 (see 40 CFR
Section 268.30(a) & (b)). The August 27, 1987, Federal
Register (52 FR 32446) proposed to codify the solvent and
dioxin land disposal restrictions for Underground Injection
Control (DIG) Class I wells which are regulated under the
Safe Drinking Water Act (SDWA) and by a RCRA permit by rule
(see 40 CFR 268.30(a) &. The August 27, 1987, proposal
does not contain a SQG national variance. Does the variance
granted to SQG solvent and dioxin waste also apply to the
same wastes injected into Class I wells after August 8, 1988?
No. The November 7, 1986, SQG national variance
granting an extension to the effective date to the
solvent and dioxin restrictions applies only to wastes
which will be placed in land units other than UIC Class
I wells. The August 27, 1987, proposal did not address
a national variance for SQG waste specifically. It does
however propose to grant an extension of the effective
date for solvent wastes which are solvent-water mixtures
or solvent-containing sludges containing less than 1
percent (1%) total F001-F005 solvent constituents (see
40 CFR 148.10(a)). Therefore, small quantity generator
solvent waste* must meet the applicable treatment
standards prior to injection into a Class I well unless
they contain less than one percent (1%) total solvents
after generation. This will result in a three (3) month
"lag time" when SQGs may place their untreated (greater
than one percent) solvent wastes in all land units
except DIG Class I well*.
EPA did not propose a special SQG variance granting an
extension to the effective date of the DIG restrictions
because it is believed there are currently few SQGs
disposing of their wastes by injection who will not also
be eligible for the one percent (1%) total solvent
variance. It is believed there is adequate treatment
capacity for all SQGa and other generators who generate
solvent wastes above one percent (1%).
Source: John Atcheson (202) 382-5508
Research: Deborah McKie
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9553.1988(02)
MAR 3
Ms. Mary Elizabeth Slevin
Lombard!, Reinhard, Walsh,
and Harrison, P.C.
5 Computer Drive West
Albany, NY 12205 ' - k : "•"5 --'••- '..- :
>.
Dear Ms. Slevin:
This is a response to your January 21, 1988 letter to the
Office of Solid Waste in which you request an interpretation
concerning the regulatory status of a process wastewater. The
waste of concern is a rinsewater containing some carried-over
l,1,1-trichloroethane from a metal degreasing operation.
AS you have described the operation, the solvent-contaminated
water in the rinse tank constitutes a process waste and not a
spent solvent. (See Hazardous Waste Listing Background Document,
p.81, May 1980; letter from Steve Silverman to Michael Rodbury,
December 16, 1982.) This process waste would be considered
hazardous only if it were determined to exhibit one or more of
the hazardous waste characteristics; namely, ignitability,
corrosivity, reactivity, or extraction procedure (EP) toxicity.
(See 40 CFR 261.20-261.24.)
In your letter, you also mention an exemption that exists
regarding solvent-water mixtures containing less than one percent
organic solvents. You appear to be confusing two different
regulations. This particular provision applies tc wastes that
are hazardous and therefore, subject to the land cvvsposal
restrictions rule. Under the land disposal restrictions
(specifically, 40 CFR 268.30(c)(3)), spent solvent hazardous
wastes that contain less than one percent total F001-F005 solvent
constituents are subject to a two-year extension of the effective
date based on insufficient capacity. The solvent wastes covered
by the extension include solvent-water mixtures. Also, at 40 CFR
261.3(a)(2)(iv)(B) there is an exemption for solvent-contaminat-
ed wastewaters that are managed in units subject to regulation
under Sections 307(b) or 402 of the Clean Water Act. To qualify
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for this exemption, the maximum total weekly usage of the
l,1 ,l-trichloroethane discharged to the wastewater must be less
than 25 parts per million of the average weekly fl w of waste-
water into the headworks of the facility's wastewater treatment
or pretreatment system. However, since your waste is not a spent
solvent, neither of these exemptions would apply.
If you have any further questions, please contact
Ron Josephson on my staff at (202)475-6679.
Sincerely,
Jeffery D. Denit
Acting Director
Office of Solid Waste
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Ul ..< STATES EMVTROHMEJ4TAL PROTEi ...'AGENCY 9553.I989(0i
JUL 28 1989
Mr. B.W. Morse
Petroleum Advisor
Department of Commerce
and Consumer Affairs
Private Bag 00252
Gaborone
Botswana
Dear Mr. Morse:
Thank you for your letter of June 21, 1989, requesting
information about environmental protection regulations,
promulgated by the U.S. Environmental Protection Agency (EPA).
Our response primarily focuses on the disposal of TEL gasoline
sludge, a particular concern raised in the letter.
EPA lists tank bottoms (leaded) from the petroleum refining
industry as a hazardous waste. As such, this waste must b«
managed in accordance with the U.S Environmental Protection
Agency standards published in the Code of Federal Regulations
(Title 40), under Parts 260-272 (enclosed). Several of the
relevant sections, i.e., standard* for storage/treatment tanks
and standards for landfills will be found in this document (see
pages 556-567 and pages 581-586, respectively).
On August 17, 1988, EPA promulgated standards restricting
the land disposal of certain hazardous wastes, including leaded
tank bottoms from petroleum refining. The intent of this
rulemaking is to minimize the quantity of hazardous waste being -
land disposed in the United States along with minimizing the
toxicity of the waste when land disposal is necessary. Enclosed
for your review, is a copy of this rulemaking, as well as the
background document that contains information justifying the land
disposal restrictions. These rules require that wastes be
treated to levels achieved by the "Best Demonstrated Treatment
Technology,1* (BOAT) prior to being land disposed. You will find
that EPA considers solvent extraction and incineration to be the
BOAT for gasoline sludge waste. A temporary variance to the
treatment technology can be granted for certain wastes because
inadequate treatment capacity is available. These wastes are
then land disposed.in a landfill that has double liners and
leachate collection above and between the liners.
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9553.1990(01
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAY I I !99C
SOLID WASTE AND EMERGENCY RESPONSE
C. Michael Swindoll
Conoco Inc.
P.O. Box 1267
Ponca City, OK 74603
Dear Mr. Swindoll:
This is in response to your letter of February 5, 1990 in which you
presented your interpretations of the RCRA Part B permits at Conoco's three
land treatment facilities located at Conoco refineries in Ponca City,
Oklahoma; Billings, Montana; and Lake Charles, Louisiana. Specifically, you
have interpreted these permits to mean that (1) continued operation of the
landfarms for the application of non-hazardous waste can occur after August 8,
1990 and (2) permit modifications for delay of closure and closure are not
required until the no-migration petition is denied. In response to your
specific issues we have described below procedures pursuant to Federal rules
and regulations. Since Conoco's facilities are located in authorized States
and those States may have their own additional requirements, the Federal
procedures may or may not apply. Therefore, we recommend that you work
closely with these States to ensure applicable requirements are met.
On August 8, 1990 the current two year national capacity variance for the
continued land disposal of petroleum refinery hazardous wastes (K048-K052) is
scheduled to expire. However, on May 8, 1990 the Administrator signed the
Third Third Land Disposal Restrictions Rule. The rule provides for an
extension, until November 8, 1990, of the national capacity variance for the
K048-K052 wastes.
At the expiration of the revised national capacity variance, in order for
a facility to continue the land disposal of these restricted hazardous wastes
final approval must be obtained for either a no-migration petition, a case-by-
case extension or a treatability variance. Pending a decision on a no-
migration petition for a land disposal unit, Federal regulations allow owners
and operators to continue to dispose of non-hazardous waste in that unit after
the expiration of the variance under the provisions of 40 CFR 264.113(b) and
265.113(b). These regulations state that the owner or operator must complete
partial and final closure activities in accordance with the approved closure
plan within 180 days after receiving the final volume of hazardous waste at
the unit or facility. However, they further state that the Regional
Administrator may approve an extension of the closure period if the owner or
operator complies with all applicable requirements for requesting a
Prwudo* KteyeUd Paptr
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-2-
raodification to the permit and that he makes certain demonstrations. For
example, if the owner or operator can demonstrate that the hazardous waste
management unit or facility has the capacity to receive additional hazardous
waste; and that there is a reasonable likelihood that he or another person
will recommence operation of the hazardous waste management unit or facility
within one year; and the closure of the unit or facility would be incompatible
with continued operation of the site; and he continues to comply with all
applicable permit requirements, just cause exists for extension of fits closure
period. See 40 CFR 264.113(b)(1)(ii) and 265.113(b)(1)(ii). Procedures for
making these danonstrations are addressed in 40 CFR 264.113(c) and 265.113(c).
Procedures for modifying the closure plan ace addressed in 40 CFR 264.112 and
265.112. Therefore, if the State in which the unit is located has procedures
equivalent to the Federal requirements at 40 CFR 264.113 (b) and 265.113(b)
then closure can be extended as discussed above. Please note, however, that
States can be more stringent or impose additional requirements.
If the no-migration petition is approved, the owner or operator can resume
the receipt of the restricted hazardous waste (K048-K052). If the petition is
denied, demonstrations made under 40 CFR 264.113(b)(1)(ii) and
265.113(b)(1)(ii) would no longer apply (e.g., there no. longer exists a
reasonable likelihood that the owner or operator will recommence operation of
the hazardous waste management unit or facility) and the owner or operator
must proceed with closure unless they are eligible to continue to receive non-
hazardous waste under the "delay of closure" regulations.
These Federal "delay of closure" provisions as set forth in 40 CFR
264.113(d) and 265.113(d) allow the owner or operator to receive only non-
hazardous waste in a landfill, land treatment unit or surface impoundment
after the final receipt of hazardous waste if certain conditions are met. See
enclosed copy of 54 £R 33376, August 14, 1989.
Since the."delay of closure" final rule was promulgated pursuant to RCRA,
it is effective only in those States that do not have interim or final
authorization (i.e., Alaska, California, Connecticut, Hawaii, Iowa, Puerto
Rico, Virgin Islands, Wyoming, American Samoa and the Northern Marianas
Islands) and in those authorized States that have modified their programs to
reflect this regulation. In addition States may choose to adopt "delay of
closure" provisions more stringent then the Federal. In order to determine
the applicability of the "delay of closure" provisions, you should contact the
States in which your refineries are located.
If the "delay of closure" is available you should carefully note any
deadlines for submission of permit modification requests and required
demonstrations. For example, under the Federal "delay of closure" provisions
the request to modify the permit and the demonstrations referred to in 40 CFR
264.113(d)(1) and (2) and 265.113(d)(1) and (2) are required to be submitted
to the Regional Administrator no later than 120 days prior to the date on
which the owner or operator of the facility receives the known final volume of
hazardous waste or no later than 90 days after the effective date of the
"delay of closure" rule in the State in which the unit is located, whichever
is later. Under the Federal program, denial of the petition would constitute
a date certain after which hazardous waste would not be applied to the
facility.
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-3-
If you have any further questions regarding the above information please
call Jim Michael of my staff at (202) 382-2231.
Sincerely,
Sylvia K. Lowrance, Director
Office of Solid Waste
Enclosure
cc: William K. Honker, Region VI
Karen Dihrberg, Oklahoma State Department of Health
Elizabeth Cotsworth, OSW
Jim Michael, OSW
Barbara Foster, OSW
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9554 - LAND DISPOSAL
RESTRICTIONS
Subpart D
Treatment Standards
ATKl/l 104/67 kp
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9554.1986(01'
MAR 2T (995
SUBJECTt Responses to additional Questions raised by Senator
Mitchell from the Land^Dispoeal Restriction heartnq
on February 24, 19S€
f*O«i
TO i
Eileen H. Claussen, Director
Characterisation and X«««ta««nt
Lynn Pirossoll
Off lc« of th« Mtlatant Adjiiniatrator
for Solid watt* and Bw«rq«ncy
-«$« 29)
Attached ar« th« additional ou«ationa and r««pona«a for
Senator Niteh«ll concerning th« hearlnq before the Subcommittee
on environmental Pollution of the Senate Committee on Environment
and Public Work*.
We are alto submitting the necessary documentation in suonort
of these answers* Since this documentation is so voluwlnou«»
please advise Senator Mitchell that we will deleqate a
person to assist him and Committee staff in rev lew! no and
Interpreting the data, if he so desires.
Attachments
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Ot What i* tha basis for EPA'a asti*Mta that 95 parcant of
tha solvents and dioxins will naad to ba traatad prior
to land disposal using tha EPA oropoaad *athodologv?
At solvanta .
EPA's 1latino orograv (wanagad by OSW) has collactad
qualitative and quantitative characteristic data for
waatas ganaratad by various Industries to datamina
which nav waatas should ba eonsldarad hasardous undar
RCRA. Hhlla this program doas not collact data on aviating
wasta codaa, tha data eollaetad for this orocraw is tha bast
information availabla to SPA on tha eoneantration of
eonatituants in vastaa and tharafora was tha baais for
astinating tha eharaetaristies of waataa aubjaet to.th* ban.
laaad on axtrapolationa of thaaa data* F:?A baliavaa that
virtually all of tha aolvant vaataa currently land diapoaad
axcaad tha aeraanina lava la and would rarruira traatmant.
Thasa data ara daacrlbad in datail in Voluna III of tha
•Background Ooctoaant for Solvanta to Support 40 CP* Part
268, Land Disposal Restrictions.* Aa Tabla C-l on paan of tha total aolvant coneantrations
•xeaads 3^000 parts par million (0.30% by waight) for all
aolra«t sontaining wastas, nanagad by all ^anaganant tachniguaa.
Bacaua* this nuabar is so much highar than tha pronoaad
ragulatory lavals, wa baliava now all aolvant-containlno waataa
will ba traatad. Bacauaa of tha limitations of thaaa
data* tha Agancy is taking a conaanrativa approach in
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•••••sing capacity demands for settinq effective dat««
and thms !• •• tunning that S percent of all solvent va«t«s
will not require treatment.
Dioxini
In conaiderinq th« quantity of rfioxln-containlnq waste subject
to treatment before land disposal, th« Agency excluded rtioxin-
conta»inated soils. Th«r« ar« approxinat»ly 500,000 MT of th«««
•oil*i hov*v«r* th««« vaat«« do not twcoM subject to restriction
until 1988 since they are contaminated soils resulting fro*
CBRCLA re«pons« actions (see Section 3004(e)(3))« Mr. Porter*s
state««nt addresses only dioxin-containino; «r«stes that will b«
subject to restriction on Ifovenoer 8, 1986*
Aqency data in support of the dloxin listings indicate that'
6,650 metric tons on dioxin-containinq waste (excludinq
soils) have oe*n generated as of wid 1999. These waste*
include the following non-aqueous, relatively non-solid
wastest
- still bottoM frcai herbicide manufacture
- non-aqueouai liquid leachate
• ifMit carbon from aqueous phase treatment
• VMtanrators and
• still bottome from PCf oroduct purification.
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Th« •lilting data show total dioitn concentration of
O.C - 110,000 npm in theae vaatea. These data are eummariied
In BxMbit 6-1 of the draft "fcequlatory Analytic of
Proposed Reatrlet lone on Land Dlsooaal of Certain
Dioxin-ContaIn Ing Hastea.*
Sine* dtoxln-containlnq waatee, for the moat party ara
liquids* the dioxin concentration in the laachata will ecual
tha total dioxin eoneantration in tha waatat Dioxin-
contafiinatad atill bottona which often ara sludoaa typically
contain orqanic aolvanta auch aa toluana and mathanol.
Slnca aolv«nta» whan co-dlapoaad with othar haxardoua waat««»
ara known to wobillta orqanic eonatituanta which otharwiaa
may ba) imobila or ralatlvaly non-*»obila, a aiailar affaet
can b« «xp«ct«^ for dio*ln-contanlnat«d ctill bottom*
containinq «olv«nta. Thuar tha l«achat« from th«««
waat«« can reasonably b« exna>cted to contain dioxina in
concentrations well above the 1 r>pb aereenino level.
Agency data aupoort a conclusion that all dioxin—containing
waataa (excluding aolla) will require treatment before
land dlapoaal. However« the Agency aqain is taxinn a
conservative approach in determining caoacity demand by
etatifia that 9S percent of theae waatea will rectuire treaf^«nt.
SPA does believe that meat dioxin-contaminated aolla (auhject
to the Hovember 1908 deadline) will not require treatment
under the proposed treatment atandarda. Extraction procedure
testing conducted on alx aamolaa of dioxin contaminated aoils
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(ranging fro* 3 to 1,200 poh of 2,3,7,)! - TCDO) Indicated
that nonm of the samclee leached detectable (I.e., 1 p0b)
levels of dloxine. (See Evaluation of Dioxtn Extraction
in the Toxicity Characterietic Leachlnq Procedure, attached.)
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Of What percentage of the solvents would need to he nretreated
under §PA*s proposed »*«thodolo*7Y if there was no adjustment
in th« screening l«v«ls for liner protection?
At To respond to this Question, it vould be necessary to *iave
detailed waste characterisation data Indicating the distribution
of constituent concentrations^n waste «treams by volvme
of waste. The data relied on in response to the nrevlous
question is, unfortunately, not detailed enough to enable
us to respond to this question.
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9554.1986(03
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 86
11. Treated Wastes
Must restricted wastes which have been treated to meet treacnent
standards promulgated under §268.41 still be managed as hazardous
under RCBA?
The treatment standards set forth in Table OCWE of 5263.41
[51 FR 40642] specify the .iaxi.-num concentrations at which
restricted wastes may be land disposed. If listed hazardous wastes
are treated, they will remain hazardous wastes until or unless
they have been delisted according to §260.22. Characteristic
wastes that no longer exhibit the characteristic after treatment
do not need to be managed as hazardous wastes.
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9554.1986(04)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 86
10. Treatment Stanrtards
How were the treatment standards established for the land ban role?
The treatment standards set forth in the Constituent in
Concentration in Waste Extract (CCWE) Table of §263.41
[51 FR 40642] are technology-based standards. These standards
are baaed on the efficiencies that can be achieved using the
Best Demonstrated Available Technology (BDAT). As is explained
en pages 40588-40589, a technology may be "demonstrated" if it
is currently used to treat wastes within the group of wastes
judged to be similar. The following criteria must be .net for a
technology to be "available": (1) the technology does not
present a greater total risk than land disposal; (2) if the
technology is a proprietary or patented process, it can be
purchased from the proprietor: (3) the technology provides
substantial treatment; and (4) treatment technologies prohibited
under §3004(n) because of air -emissions will be excluded as
"available" technologies for the purposes of establishing
treatment standards. The Agency performed a statistical
analysis on the available treatment <3ata to identify the
BDKT and determine the treatment standard.
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9554.1986(05)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 86
15. Dilution to Meet Treatment Standards
Can a generator .dilute iiis restricted wastes to meet the treatment
standards of Table OCWE of §263.41?
>to, as explained in §268.3 [51 FR 40639], "^fo generator,
transporter, handler, or ov*ier or operator of a tnsatonent,
storage, or disposal facility shall in any way dilute a restricted
waste or the residual from treatment of a restricted waste as i
substitute for adequate treatment to achieve coicliance with
Subpart D of this part".
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UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY
9554.1987(02;
rE3 3 i9£7
Honorable Esteban Torres
house of Representatives
wasnington, D.C. 20515
Dear Mr. Torre*:
Thank you for your letter of January 12, 1987, in which
you requested clarification of the hazardous waste management
regulations governing wastes generated by the metal finishing/
electroplating industry. Specifically, you enclosed a copy
of correspondence from Mr. Larry O. Foes of Foss Plating
Company Inc. in which he addressed concerns regarding the
effect of the land disposal restrictions upon the metal
finishing industry.
The 1984 Hazardous and Solid Waste Amendments (HSWA) to
the resource Conservation and Recovery Act (RCRA) prohibit
the continued land disposal of untreated hazardous wastes
unless the Agency determines that the prohibition is not
required in order to protect human health and the environment
(KCRA sections 3004(d)(l), (•)(!), and (g)(5)). However,
hazardous wastes that meet the treatment standards established
by LPA under section 3004(m) of RCRA are not subject to the
restrictions and may be land disposed.
As you are aware, the legislation established a series ot
deadlines for Agency action. At certain deadlines, further
land disposal of a particular group of hazardous wastes is
prohibited unless the wastes meet treatment standards
established by the Agency, or a facility has been granted a
petition under 40 CFR 26S.6 ("no-migration petition"), or an
extension to the effective date has been granted under
40 CFK 268.5 (case-by-case extensions). As Mr. Foss correctly
indicated, F006 wastes (wastewater treatment sludges frora
electroplating operations) are included among the wastes
scheduled to be evaluated by August 8. 1966 (40 CFR 268.10).
The Agency plans to propose treatment standards for the first
third of the scheduled listed wastes, ii
information un the perfprlmanetoaf (various tiechnolowles
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-2-
used for treating F006 wastes that reduce the toxicity or
mobility of these wastes. After considering the public
comments we receive on the proposed rule we will set the
final treatment standards for these wastes by the August 8,
1988 deadline. The land disposal of the F006 waste will be
prohibited (by statute) only if EPA does not meet the deadline
specified in the law. Wastes meeting the treatment standards
may continue to be land disposed.
Under RCRA section 3004 (h) (2), the Agency has the
authority to grant a nationwide variance of up to 2 years
from the statutory effective date if adequate alternative
treatment, recovery, or disposal capacity does not exist.
Calculations of alternative capacity are utilized in determining
whether to grant variances and the length of any variance from
the effective dates of the restrictions. The Agency will be
proposing capacity determinations at the same time as we
propose treatment standards for the first third of the
scheduled listed wastes.
We are sympathetic to the problems potentially faced by
Mr. Foss and Foss Plating Company Inc. However, failure
of the Agency to promulgate final regulations setting treatment
standards for these wastes would mean that such wastes could
be disposed of in a landfill or surface impoundment only if
(i) the facility is in compliance with the minimum technological
requirements of RCRA §3004(o) (double liners, groundwater
monitoring) and (ii) the generator has certified that he has
investigated the available treatment capacity and has determined
that the use of such a landfill or surface impoundment is the
only practical alternative. After May 9, 1990, RCRA would
completely ban the land disposal of any hazardous waste for
which EP/v has not specified treatment standards. Allowing
these provisions to take affect would likely result in an
even greater regulatory impact on the metal finishing/
electroplating industry than promulgating final regulations
restricting land disposal.
We appreciate 'the opportunity to provide you with
information regarding prohibitions on the land disposal of
hazardous waste. Please feel free to contact Stephen Weil,
Chief of our Land Disposal Restrictions Branch, at (202)
382-2770 if you have further questions on this matter.
Sincerely,
J. Winston Porter
Assistant Administrator
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9554.1987(03
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
JULY 87
1. California List
The land disposal restrictions in RCRA Section 3004(d) requires
that the California List wastes be banned frcm land disposal by July 8,
1987. Concentrations of nickel greater than 134 mg/1 ate subject to the
ban. Is hazardous wastewater containing nickel dispersed by agitation,
but not chemically in solution, included in the restriction?
Yes. It does not matter whether the nickel is chemically or physically
contained in the wastewater. The ban applies to the total concentration
of nickel in the filtrate as determined by subjecting a representative
sample of wastewater to the Paine Filter Liquids Test. If the facility
were to settle out the pieces of nickel and lower the concentration of
nickel below 134 mg/1. the wastewater would no longer be sjbject to tne
ban. Until treatment standards are finalized, this method of lowering
the concentration is allowable.
Source: Mitch Kidwell (202) 382-4805
Research: Laurie Huber
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9554.1983(03)
/ 3
Dr. Paul Palmer, Ph.D.
Onscreen Directories Inc.
7345 Healdsburg Avenue
Suite 524
Sebastopol, California 95472
Dear Dr. Palmer:
This letter is in response to your March l, 1988 and.
April 19, 1988, letters requesting an interpretation of
40 CFR 268.7 requirements. Your letter of April 19f 1988
expresses a general frustration with EPA's seemingly meaningless
recordkeeping and certificating requirements. EPA believes that
these requirements are necessary, and I will try to explain the
rationale behind the rules.
EPA is responsible for enforcing the prohibitions on If.nd
disposal of untreated hazardous wastes imposed by Congress. A
determination that a waste is a listed hazardous waste
(40 CFR 261.31, and 261.32) is, in general, based on how th?.
material is used or the process by which it was generated, no-;.:
on the constituents in the wastes. Thus, only the original
generator can determine what the applicable waste codes are.
This information is frequently, but not always, on the
manifest. Waste codes have also been subdivided for the purpose
of setting treatment standards. The treatment, storage, or
disposal facility must be informed of the applicable standard.
In cases where no land disposal is anticipated, the notice is
still required to insure that the waste is not disposed of by a
facility not realizing that such disposal for that particular
waste is prohibited.
All restricted wastes, whether treated and disposed on
site, or sent off-site to a RCRA treatment or disposal facility
or to a non RCRA recycling facility, are subject to testing and
recordxeeping requirements. Please note that although recycling
facilities may be exempt from RCRA regulation, the wastes they
receive and the resulting residues are regulated by RCRA and are
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subject to the land disposal restrictions. We believe that the
notifications are necessary to assure that the information for
insuring compliance with the statute is available to both the
handlers of the hazardous waste and to EPA.
Certification is a necessary tool for tracking restricted
wastes from generation to final disposal. This law clearly puts
the burden on the generator to see that the waste is properly
managed and disposed of. Thus, the certification operates to
protect the generator in addition to providing EPA information
needed to efficiently enforce these regulations.
In response to the specific questions in your March 1
letter, I hope the following discussion will be helpful.
After a generator makes a determination that he is managing
a restricted waste which does not meet the appropriate
treatment standards, or where the waste does not comply with
the applicable prohibitions in section 268.32 or RCRA Section
3004(d), the generator must notify the treatment or storage
facility in writing of the appropriate treatment standards and
applicable prohibitions in section 268.32 or RCRA section
3004(d). This notification must accompany each shipment of the
waste.
AS a treatment and storage facility that ships restricted
wastes off-site for further management, you must comply with the
notice requirements applicable to generators in section
268.7(a)(l). You must also comply with the manifest
requirements of section 264.71(c) or section 265.71(c).
In the case of the operator of a cement kiln receiving
restricted wastes for further management (for use as a fuel
supplement), the treatment residues from these restricted wastes
are subject to all requirements under section 268.7(b)(2), (i)
and (ii) prior to land disposal.
Your interpretation of 40 CFR 268.7 certification
requirement is correct. A certification is required that the
waste meets the applicable treatment standards before the
restricted waste may be land disposed. When the restricted
waste is not destined for land disposal a certification is not
required. However, a written notification must accompany each
shipment of restricted waste where further management is
appropriate before land disposal.
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I hope this information adequately addresses your concerns
If you have further questions, please feel free to contact Jim
Thompson, at (202) 382-7438.
Sincerely,
Sylvia K. Lowrance, Director
Office of Solid Waste
cc: Region IX
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9554.1968(04)
JUM I 3 ":
Mr. Kerry Bennert
Coordinator Special Projects
E.I. du Pont de Nemours & Co. (Inc.)
Medical Products Department
331 Treble Cove Road
No. Billerica, MA. 01862
Dear Mr. Bennert:
I received your letter of April 18, 1988 in which you commented
that regulatory events limiting mixed waste disposal have impacted
your radioactive materials manufacturing operations. Specifically,
you cited as examples, the absence of disposal capacity for
"small-volume mixed waste laboratory generated (organic solvents)
materials" and lead.
As you know, EPA promulgated regulations which appeared in the
Federal Register of November 7, 1986 prohibiting land disposal of
certain spent solvent wastes unless they meet specific concentration
based treatment standards. Some solvent containing mixed wastes may
not lend themselves to incineration, the best demonstrated available
technology (BDAT) for solvent wastes. Such wastes could conceivably
be delisted and disposed in a low-level waste disposal facility
following treatment.
Enclosed is a copy of a letter to Mr. Terry Husseman, Chair,
Northwest Interstate Compact Committee which details the Agency's
position on disposal of lead. As the Husseman letter points out,
EPA has not evaluated specific containerization or encapsulation
methodologies using the EP toxicity test. Such approaches to
managing lead mixed waste may be viable in certain circumstances.
Of course, States may adopt a more stringent position with regard
to regulation of lead or any other hazardous waste. We recommend
disposal of lead in a mixed waste unit.
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- 2 -
Also, I share your concern that neither of the three existing
commercial low-level radioactive waste disposal facilities have
applied for a RCRA permit although U.S. Ecology has expressed a
strong interest in filing such an application. EPA and NRC developed
a series of guidance documents last year aimed at facilitating the
State and compact effort in siting and designing a low-level waste
disposal unit that could also accept mixed waste. As a regulatory
agency, EPA believes this level of involvement is consistent with its
mandate. The Agency is available to review alternate waste
management proposals developed by industry. However, until such time
as disposal capacity becomes available or treatment technologies are
identified, storage, an activity which also requires a RCRA permit,
may be the only waste management option available to generators of
mixed waste.
Although mixed wastes are not subject to Federal hazardous waste
regulations until the State applies for and obtains authorization to
regulate the hazardous component of the mixed waste, State law is
applicable in the interim. The deadline for filing mixed waste
authorization applications is July of this year. You may want to
contact Paul Bedrosian, the mixed waste coordinator for EPA Region I
(617-833-1792) to discuss your concerns. Further, I will apprise you
of any future developments on management of solvent containing mixed
wastes.
Sincerely,
Bruce R. Weddle, Director
Permits and State Programs Division
cc: Paul Bedrosian, Region I
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UNITED STATES ENVIRONMENTAL PKOTECTKM AGENCY
9554.1938(05)
Mr. Mark N. Griffiths
Director of Government Relations
National Association of Metal Finishers
suite 700
1101 Connecticut Avenue, Northwest
Washington, B.C. 20036
Dear Mr. Griffiths:
I am writing in response to your recent letter requesting
information on waste treatment facilities which can and will
accept F006 electroplating wastes for stabilization.
The enclosed list gives the names and EPA ID numbers of 41
facilities which reported to EPA that they offered the type of
stabilization used to establish the land disposal treatment
standards for F006 sludges. I have also enclosed a copy of the
Directory of Commercial Hazardous Waste Management Facilities
which includes contact information for hazardous waste
facilities. You asked that we supply you with the names of
facilities that would be willing to take your members' F006
wastes on August 8, 1988. EPA has not attempted to obtain such
specific data on waste treatment facilities.
As I discussed with you on the phone several weeks ago, the
difficulty you members experienced in finding waste treaters
willing to commit to treatment before the standards for F006
wastes were final is typical of what has occurred with past land
disposal restrictions rules. Waste treatment and disposal
facilities are subject to more restrictive standards on storage
of wastes-than are the generators of the wastes. As a result,
these facilities are reluctant to accept wastes that they cannot
treat antf dispose of fairly quickly. When a new treatment
requirement is imminent, these facilities routinely inform their
customers not to ship wastes after a certain date. Then, after
the final treatment standards are known, the disposal facilities
have time to determine the correct process changes or mixes
required and make other operating adjustments which are
necessary. Typically, treatment and disposal facilities begin
accepting wastes again within two to four weeks of the
promulgation date of Lhe flLLjj-..tiLi.B=r-
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While this lag time is unsettling for generators,
particularly when they have limited on-site storage capacity, it
is a predictable side effect of the statutory requirement that
land disposal restrictions become effective immediately upon
promulgation.
I hope this information has been helpful.
Sincerely,
Barbara J. McGuinness, Chief
Regulation Development Section
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WmonAiESEMVIROKMEWTALPROTECTIOHAG^CT ^554.1989(32)
MAY 5
Mr. Richard
Director, Government Relations
Enviroaafe Management Services, Inc.
P.O. Box 833
Valley Forge, Pennsylvania 19482-0833
Dear Mr. Pastor:
This letter is in response to your April 15, 1989,
correspondence requesting a clarifying rule or guidance that
would allow placement of stabilized wastes that do not meet
land restrictions requirements at the time of placement. Your
justification for this clarification is that EPA based its BOAT
treatment standards on a 28 day curing period without clearly
stating where the curing was to occur.
As Jim Berlow explained to you when you met with him on
March 9, 1989, it is EPA's policy that wastes must meet treat-
ment standards prior to placement in land disposal units. This
policy is founded on our reading of the statutory intent.
Because EPA must be concerned that wastes may be exposed to
rainfall or other sources of leachate at any point in the life
of the disposal unit, it is necessary that Envirosafe establish
the effectiveness of its technology immediately upon placement.
Your letter suggests that Envirosafe believes its process
for in-place curing can be demonstrated to be superior to the
existing basis for BOAT standards, but provides no data. If
you have data that shows your process is superior, then you
should submit those data if you pursue a BOAT variance or
petition for rulemafclng. These data should demonstrate the
effectiveness of the process in reducing mobility of hazardous
constituents both at placement and once fully cured. As
Mr. Berlow mentioned in your discussions, you should submit
this data in the form of Toxicity Characteristic Leaching
Procedure data to describe the effectiveness of your process.
This will allow us to determine the degree to which your
process relies on simply encapsulation rather than chemical
fixation to bind the hazardous constituents. If your process
can be judged equivalent or better than the current technology
basis for our standards, then a variance would be appropriate.
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Many of our standards are based on the leachability
achieved by stabilizing waste and curing it for 28 days prior
to placement. It is our understanding, however, that several
companies have been able to comply with the standards using
processes that achieve the limits after an initial curing of
far less than 28 days, in some cases within about 24 hours.
EPA views this issue as a matter of cost optimization, storage
capacity for curing versus possibly more expensive chemical
costs for stabilization. We do not believe that achieving the
standards based on 28 day curing strength has been shown to
represent a significant technical problem. However, any such
problems that you can document should be addressed in a BOAT
variance submission.
Your letter also mentions the possibility of a "temporary"
no migration petition for the period of curing; we have not
completed our consideration of this idea. I hope to inform you
of our analysis within the next several weeks. However, I
believe that there are several interim points for you to
consider.
HSWA requires that a no migration variance be based on an
analysis of the period over which the waste remains hazardous.
I suspect that a petitioner would have to demonstrate that no
migration would occur for as long as the waste remains
hazardous within the disposal unit, and not necessarily only
for the period within which the stabilized waste will achieve a
particular curing endpoint.
More significant, however, may be Section 3004(c)(l) of
RCRA. This section prohibits "...the placement of bulk or
non-containerized liquid hazardous waste or free liquids
contained in hazardous waste (whether or not absorbents have
been added) in any landfill...". The Agency issued a Statutory
Interpretive Guidance on June 11, 1986 (enclosed) for this
provision. In effect, the Agency's policy is that bulk and
non-containerized wastes must pass the "Paint Filter Liquids
Test" prior to placement in a landfill. You may wish to
consider whether the treated wastes that you wish to landfill
prior to complete curing can pass such a free-liquids test. As
explained in the Statutory Interpretive Guidance, the statute
provides for no variance opportunity.
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- 3 -
I appreciate your interest in this matter. If you wish to
pursue a BOAT variance, you should continue to contact Jim
Berlow and his staff.
Sincerely,
JO
Sylvia K. Lowrance
Director
Office of Solid Waste
Enclosure
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9554 1989(0"?
RCRA/SUPERFUND HOTLINE SUMMARY
OCTOBER 1989
4. a fcosal Restrictions: Point of Generation
Effective July 8, 1987, liquid hazardous wastes containing PCBs in
concentrations greater than or equal to 50 ppm are restricted from land
disposal (40 CFR 26832(a)(2)). The July 8, 1987, Federal Register states that
for the purpose of characterizing a waste as "restricted" the "initial
generators are to determine if their hazardous wastes are prohibited at the
point of generation." (52 FR 25766) This policy is reiterated in the August
17, 1988, Federal Register by stating "generators must determine whether
their wastes are 'restricted' at the point of initial generation, i.e. when the
waste is first considered a hazardous waste subject to RCRA regulation."
(53 FR 31200)
An electrical transformer released oil onto a concrete containment pad.
The oil contains PCBs at concentrations greater than 50 ppm. The spill
response team used mineral spirits to loosen the oil from the concrete pad.
Then an absorbent was added to the oil /mineral spirit mixture and the
entire mixture was removed from the concrete. Is this mixture subject to
the land disposal regulations?
In this case a waste was generated when the transformer oil was
released onto the concrete. In order for the oil to be a California list
waste it must be a hazardous waste. The oil will not be subject to the
land disposal restrictions regulations as a California list waste because
typically it is not a hazardous waste (i.e., listed or characteristic).
However, after the mineral spirits are used to loosen the oil from the
concrete, the oil/mineral spirit mixture might meet the definition of
a hazardous waste by exhibiting the characteristic of ignitability.
Therefore, the generator must use the following criteria to determine
if the oil/mineral spirit mixture is restricted from land disposal: (1)
does the waste exhibit a characteristic (e.g., ignitability); (2) is it a
liquid; and (3) does it contain PCBs in concentrations greater than or
equal to 50 ppm? The waste must meet all three criteria to be deemed
a restricted waste, specifically a California list waste per Section 26832.
This particular California list waste has specific treatment standards
per 40 CFR 268.42. The preamble to the July 8, 1987, Federal Register
states "where treatment standards are expressed as specified
technologies, the Agency has stated in the November 7, 1986 final
rule that such specified technologies must be employed. See e.g., 51
FR 40628. For example, in today's final rule, the California list wastes
containing PCBs must be treated in accordance with the standards
specified in Section 268.42 (i.e., thermal destruction in incinerators or
high efficiency boilers) and may not be rendered non-liquid in order
to avoid the Section 268 requirements." (52 FR 25766) In this case if
the oil /mineral spirit mixture meets the three criteria the waste is
still subject to the land disposal restrictions even if the absorbent
renders the waste non-liquid.
Source: Andrea McLaughlin (202)382-6946
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9554.1989(04)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Mr. Jon Greenberg
Manager of Environmental Policy •,'/ £g
Browning-Ferris Industries '
Suite 500
1150 Connecticut Avenue, Northwest
Washington, DC 20036
Dear Mr. Greenberg:
This letter is in response to your two letters dated
October 10, 1989, requesting clarification of the California list
HOC land ban regulations, and the applicability of Federal land
disposal restrictions (LDR) regulations regarding household
hazardous waste (HHW) and hazardous waste from generators of less
than 100 kg/month, what you are calling "very small quantity
generator waste" (VSQG) . We are providing answers or
clarifications in response to all of your inquiries except for
two, which we would like additional time to consider. We do not
wish to delay providing answers to the other questions raised in
your letters, so we are responding to those at this time.
Your first question concerned California list HOCs ,
specifically a non-liquid waste containing only one HOC (at
levels greater than or equal to 1000 mg/kg) listed in Appendix
III of Part 268. As stated in 40 CFR 268. 42(a) ( 2) , a waste is
prohibited from land disposal unless it has been incinerated in
accordance with Subpart 0 of either Part 264 or 265. (The
treatment standard of incineration does not apply when there is
an established treatment standard specified for the HOC in
Subpart D of Part 268). You stated, however, that 40 CFR
268.42(a)(2) is less clear when there is a mixture of more than
one listed HOC in a non- liquid waste. You gave as your
understanding that in this case, if there is an established
treatment standard in Part 268 for at least one of the listed
HOCs, then that treatment standard, and not the incineration
standard of 40 CFR 268. 42(a) (2) , applies. This is a correct
interpretation; as stated in previous rulemakings , California
list prohibitions are superseded by more specific prohibitions
and treatment standards (see 52 FR 29993, August 12, 1987; and 52
25773, July 8, 1987).
You also requested confirmation of your understanding of the
effects of the Court-ordered stay on multi-source leachate , when
it is derived from a waste as described above. You stated that
the effect of the stay is to remove the treatment requirements
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established under Part 268 as they apply to multi-source leachate
and, therefore, the incineration treatment standard applies. The
Agency would like additional time to further consider your
interpretation before providing a response.
Your final question in the first letter dealt with a non-
liquid waste containing less than 1000 mg/kg HOCs when initially
generated. This waste is de-watered for further treatment, which
results in the concentration of the HOCs being increased to above
1000 mg/kg. With further treatment, the concentration of the
HOCs in the waste again drops to below 1000 mg/kg. You stated
that your understanding is that, because the waste did not meet
the California list criteria when it was initially generated nor
when it eventually was disposed, it does not have to meet the
requirements of 40 CFR 268.42. The Agency would also like
additional time to consider the issues involved in this question,
and so is deferring a response at this time.
Your second letter is concerned with the applicability of
the Federal land disposal restrictions to wastes that are not
hazardous by Federal hazardous waste definitions, i.e., household
hazardous waste and hazardous waste from generators of less than
100 kg/month, but are hazardous by a State's definition. You
wished to know if the Federal land disposal restrictions apply in
these cases.
States with approved hazardous waste programs that regulate
generators and handlers of less than 100 kg of hazardous waste
in a calendar month have a larger regulated universe than is
required under Federal law. The program components that include
these classes of hazardous waste handlers are "broader in scope"
than the Federal requirements. "Broader in scope" provisions are
not considered part of the State authorized program and are not
subject to EPA oversight and enforcement (40 CFR 271.1 (i) -' 2} ) .
Therefore, State regulated household hazardous waste and "very
small quantity generator" waste handlers are not subject to the
Federal land disposal restrictions unless the Federal regulations
are adopted and enforceable under State law.
If you have any further questions, please call
Robert Scarberry, Chief, Land Disposal Restrictions Branch, at
382-4770.
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Waste
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RCRA/SUPERFUND HOTLINE SUMMARY
9554.1990(01)
JANUARY 1990
2. Land Disposal Restrictions - Lab Packs
Lab packs are containers holding a variety of wastes generated by
laboratories. If a lab pack contains a waste restricted under RCRA's Land
Disposal Restrictions, how is it regulated?
The disposal of lab packs containing restricted wastes is initially
addressed in the Land Disposal Restrictions final rule of November 7,
1986 (51 EE. 40572). If a lab pack contains any restricted wastes, the
entire lab pack is prohibited from land disposal "unless the solvents
or other restricted wastes are removed before land disposal, the
solvents in the lab pack meet the treatment standard/ or a successful
petition demonstration has been made under Section 268.6." (51 FR
40585)
The proposed rule for the Third Third wastes in the November 22,
1989 Federal Register (54 £E 48372) also includes a discussion of lab
packs. The Agency proposes alternate treatment standards expressed
as technologies for those lab packs meeting certain criteria. Lab packs
containing certain characteristics and listed organic hazardous waste
may be incinerated according to this proposed rule, and stabilization
is proposed to be the treatment technology for certain EP toxic metal
wastes. However, this proposed approach would not be mandatory
and generators of lab packs who choose instead to comply with
current land disposal restrictions, would be free to do so.
Source: Andrea McLaughlin, OSW (202) 382-6946
Research: Anne Kennerley
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9554.1990(02
0*' 'ft
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
' WASHINGTON. D.C. 20460
22 1990
FILE COP1
OFFICE OP
SOLID WASTE AND EMERGENCY RESPONSE
William McDonald
Chemical Compliance Manager
Wellcraft Marine
Sarasota, Florida
Dear Mr. McDonald:
This letter is in response to your question concerning the
impact of the proposed Third Third Land Disposal Restrictions
rule on D001 characteristic wastes.
The 1984 Hazardous and Solid Waste Amendments to the
Resource Conservation and Recovery Act directed EPA to set levels
and methods of treatment for hazardous wastes which substantially
reduce the toxicity of the waste. Wastes or residuals from the
treatment that meet treatment standards established by EPA may be
land disposed.
Land disposal of these hazardous wastes are prohibited
unless l) the wastes are treated to a level or by a method
specified by EPA, 2) it can be demonstrated there will be no
migration of hazadous constituents from the land disposal unit
for as long as the wastes remain hazardous, or 3) the wastes are
subject to an exemption or variance from meeting the treatment
standards.
D001 is an ignitable waste which is currently subject to
some restrictions on placement in surface impoundments, waste
piles, land treatment units, and landfills. These restrictions
can be found in 40 CFR 264.229, 264.256, 264.281, 264.312,
265.229, 265.256, 265.281, and 265.312.
There are four categories of D001 ignitable waste. The
first, ignitable liquids such as solvents and paint thinners,
must, according to the proposed rule, be treated through thermal
destruction technologies such as incineration and fuel
substitution before they can be land disposed. The second,
ignitable compressed gasses, are generally recovered by direct
use or are vented into an incinerator. The third, ignitable
reactives, are primarily inorganic solids or wastes containing
reactive materials such as alkali metals or metalloids. These
wastes must be deactivated, according to the proposed rule,
before being land disposed. The final category is oxidizers,
Pri*H4 a* RKftt* I
-------
which include such wastes as peroxides, perchlorides, and
permanganates. These wastes must also be deactivated, according
to the proposed rule, before being land disposed.
The treatment of D001 waste raises some policy issues which
EPA is still resolving, as to when dilution is a permissible form
of treatment, and if characteristic wastes, such as D001, must be
treated to levels below which they exhibit a characteristic.
See 54 FR 48490-48494. Unfortunately, EPA cannot discuss these
matters at this time, due to restrictions concerning the
rulemaking process. EPA's decision on these two issues will
appear in the Third Third Land Disposal Restrictions final rule
on May 8.
If you have questions concerning specific aspects of EPA's
proposals for DOOl wastes, please give Robert Burchard a call
at 202-475-6775.
Sincerely,
Robert Scarberry
Chief, Land Disposal Restrictions Branch
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9554.1990(03)
MAC 7 1990
Mr. Donald Stone
Regional Environmental Manager
GSX Chemical Services, Inc.
121 Executive Center Drive
Congaree Building, Suite 100
Columbia, South Carolina 29221
Dear Mr. Stone:
This letter is in response to your September 18, 1989 letter
to Mike Petruska of the EPA's Waste Characterization Branch,
requesting confirmation of a conversation you had with Mary
Stevens of the RCRA Hotline, concerning the application of waste
codes to treatment residues. Your letter asks which waste codes
would apply to scrubber water from the incineration of hazardous
wastes for the purpose of complying with the land disposal
restrictions.
If listed wastes are burned, all residues that are generated
carry the waste codes of the listed wastes from which they were
derived. For characteristic wastes that are burned, the
residuals are characteristic only if the residues themselves
exhibit a characteristic.
When deciding which Land Disposal Restriction standard
applies to residuals such as scrubber water (assuming that the
treated residues are destined for some form of land disposal),
your decision must be based on the hazardous waste designation
before incineration. That is, you must know whether the waste
incinerated exhibits any characteristic, meets the California
List criteria, and contains or is derived from any listed wastes.
Potentially, any or all of the treatment standards associated
with these different classifications of hazardous waste may
apply. In situations where multiple treatment standards apply,
the ensuing general rules should be followed:
1. If the standards are for similar treatability groups (e.g.,
all chlorinated organics), all the standards must be met,
and for common constituents, the most stringent standard
applies.
2. If they are not similar (e.g., one is for metals and the
other is for chlorinated organics), then both standards
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I have enclosed an excerpt from the LDR Third Third proposed
rule which explains these concepts further. This excerpt also
provides several examples with regard to the California List
prohibitions and clarifies when these treatment standards would
be superseded by more specific treatment standards.
If you have any questions about these issues, please call
Robert Burchard at 475-6775.
Sincerely,
Devereaux Barnes, Director
Characterization and Assessment Division
cc Mike Petruska
Robert Scarberry
Enclosure
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RCRA/SUPERFUND HOTLINE SUMMARY
9554.1990(04
MARCH 1990
3. Treatment Standards for Methanol Which Does Not
Meet the F003 Listing
A generator uses xylene for cleaning purposes. At the point of generation
the generator determines that he has generated a F003 spent solvent waste,
subject to the land disposal restrictions. The F003 listed waste has traces of
methanol in it where the methanol was used as a fuel. Would the
notification sent by the generator in 268.7(a)(l) to the treatment, storage or
disposal facilities (TSDFs) have to include the corresponding treatment
standards for methanol as well as for xylene?
No. The generator would only have to include the treatment
standards for the xylene and not for the methanol to be in compliance
with Section 268.7(a)(l). The methanol in this case was not used for
its solvent properties and would not meet any of the spent solvent
listings, which are prohibited from land disposal without first
meeting the treatment standards in 40 CFR 268, Subpart D. The spent
solvent listings cover only those solvents that are used for their
solvent properties; which is to solubilize, dissolve or mobilize other
constituents (51 FR 40606). A solvent is considered spent when it is
no longer fit for use without being regenerated, reclaimed or
otherwise reprocessed. Where solvents were used as reactants or
ingredients in the formulation of commercial chemical products,
they are not included in the listing (see December 31, 1985 Federal
Register: 50 FR 53315 and the original solvent listing background
document, November 14, 1980).
Supporting data should be maintained on-site in the generator's files.
Sources: Rhonda Craig, OSW (202) 382-7926
Ron Josephson, OSW (202) 382-4792
Thomas Ovenden, OSW (202) 475-6715
Research: Renee T. LaValle
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9554.1990(05
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
JUN 25 1990
J. lali OFFICE OF
u A^J-J. SOLID WASTE AND EMERGENCY RESPONSE
Regulatory Affairs Manager
Chemical Waste Management, Inc.
1155 Conn. Ave., N.W.
Suite 800
Washington, D.C. 20036
Dear Mr. Igli:
Thank you for your letter of May 23, 1990, requesting
clarification of the effective date promulgated in the Third
Third final rule (55 Fed. Reg. 22520, June 1, 1990) for F024.
The Third Third final rule revised treatment standards for F024
that were originally promulgated as part of the Second Third
rulemaking. The revised standards eliminate concentration
standards for chlorinated dibenzo-dioxins and furans, and require
incineration as a specified method of treatment.
Your letter suggests that EPA may not have intended to
include F024 in the 90 day national capacity variance granted to
all waste codes covered by the Third Third because the revised
standard for F024 grants relief rather than imposing new
requirements. Your point is well taken. An immediate effective
date for F024 may be included in the technical correction notice
for the Third Third. Until such a correction notice is
published, however, or until August 8, 1990, the Second Third
standard remains in effect for F024.
If you have any questions, or would like to discuss this
issue further, please feel free to contact Matthew Straus of my
staff at (202) 382-6972.
Sincerely
Director
Office of Solid Waste
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UNITED STATES ENVIRONMENTAL PRO
WASHINGTON. D.C. 204^
9554.1990(06)
JUN 25 (goo
SOUOWASTE AND EMERGENCY RESPONSE
Lynn L. Bergeson
Weinberg, BergeSOn and Neuman
1300 Eye Street, N.W.
Suite 600 East
Washington, D.C. 20005
Dear Ms. Bergeson:
ThanX you for your letter of June 8, 1990 concerning the use
of the Extraction Procedure (EP) leach test for determining
compliance with the treatment standards for lead-bearing wastes
beyond September 25, 1990, when the Toxicity Characteristic
Leaching Procedure (TCLP) replaces the EP.
Your reading of the preamble discussion in the
Third Third land disposal restrictions rule is correct; the
Agency is allowing the continued use of the EP beyond September
25, 1990 for the limited purpose of determining compliance with
the treatment standard for lead-bearing wastes. Lead-bearing
wastes that fail the TCLP, but pass the EP, will be deemed to
meet the treatment standard for D008.
On the effective date of the Toxicity Characteristic rule,
Federal regulations no longer allow the use of the EP to
determine if your waste exhibits the toxicity characteristic.
Please note, however, that if, as a matter of state law in a RCRA
authorized state, the EP is required, that requirement is not
superseded by the TC rule.
Please note that the second footnote on page 2 of your
letter, which states that the TC effective date for small
quantity generators is March 29, 1991, is incorrect. The TC
effective date is September 25, 1990. There are two compliance
dates: September 25, 1990 for large quantity generators
(generators producing over 1000 kg/month of hazardous waste) and
TSDFs, and March 29, 1991 for small quantity generators.
We will address the continued applicability of the EP in a
future land disposal restrictions rulemaking on wastes that
exhibit the new toxicity characteristic. We plan to propose this
rule within a year, and will provide opportunity for comment.
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If'you have further questions on this matter, please contact
Robert Burchard of my staff at 475-6775.
Sincerely,
irector
ste
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•.on.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.'
9554.1990(07)
JUL 30 1990
OPMCE OF
SOLID WASTE AND EMERGENCY RESPONSE
Richard A. Guida
Associate Director
Naval Nuclear Propulsion Program
Department of the Navy
Naval Sea Systems Command
Washington, D.C. 20362-5101
Dear Mr. Guida:
This letter is in response to your letter dated May 24,
1990, concerning the Land Disposal Restrictions for defueled
submarine reactor compartments. In this letter, your primary
question was whether the Navy's program for disposal of these
reactor compartments falls within the "Macroencapsulation"
standard for these wastes as promulgated on May 8, 1990 as part
of the Land Disposal Restrictions Rule for Third Third Wastes.
EPA points out that while EPA concurred on this disposal
practice as part of an extensive Environmental Impact statement
issued in May of 1984, the Hazardous and Solid Waste Amendments
of November, 1984, required EPA to establish treatment standards
for all hazardous wastes prior to land disposal. Thus, EPA
promulgated regulations covering such wastes on May 8, 1990.
While the June 1, 1990 Federal Register Notice which listed these
regulations did not provide a specific response to your comments,
your questions were answered in the administrative record for the
rule in a document entitled the "Response to BDAT Related
Comments Document, Volume I-J", (as comment number 15-A-l).
In summary, EPA determined that the practice of direct land
disposal of these compartments may meet the "Macroencapsulation"
BDAT treatment standard for D008 radioactive lead solids. The
key to assuring compliance with the standard is the stipulation
in the regulatory language that the "jacket of inert inorganic
materials" (i.e., the steel surrounding the lead) "substantially
reduce(s) surface exposure to potential leaching media". Since
the information in your letter and your comments appears to
indicate that this is true, the Agency believes that the practice
probably complies with the BDAT standard for D008 radioactive
friHUd OM Rteyeltd Paptr
-------
lead solids. The compartments probably are considered to meet
BOAT "as generated", because the lead shielding (as originally
constructed) is surrounded in a thick, sealed steel jacket. The
key to this decision is whether the steel is indeed sealed and
thereby minimizing potential exposure to any leaching material.
EPA chose to establish "Macroencapsulation" as BOAT for 0008
radioactive lead solids in order to reduce the potential for
radiation exposure during both treatment and testing. It is
important to point out that because the standard is a technology-
based standard (i.e., specified technology), compliance does not
require that the waste undergo a TCLP analysis for lead. The
TCLP analysis would have required crushing or grinding of the
material in order to verify compliance and would have gone
against the whole purpose of establishing this standard.
EPA purposely modified the proposed standard for D008 radio-
active lead solids to include "jackets of inorganic materials" in
order to specifically account for the submarine reactor compart-
ments. However, EPA felt that it was necessary to add the
language to the definition of macroencapsulation to prevent the
"jacket of inorganic material" from being interpreted as
including materials that are merely containers or drums. Thus,
we concur with your interpretation that the submarine compartment
does not meet the definition of either a drum or a container.
I hope that this information clarifies your concerns as well
as any potential concerns that may arise with the State of
Washington over the applicability of "Macroencapsulation" as BOAT
for your decommissioned reactor compartments. If you, or the
State of Washington, need further clarification or if you feel a
meeting is necessary, please call Richard Kinch, Chief of the
Waste Treatment Branch, at (202) 382-7917. Thank you for your
patience in receiving your response. The Third Third Land
Disposal Restrictions Rule has generated a significant amount of
questions. For your information, we will be reiterating the
above discussion concerning your situation in a Federal Register
Notice covering corrections to the rule. This notice should be
out by early fall.
Sincerel
Director
Office of Solid Waste
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i UNITED STATES ENVIPONMENTAl ~~~^err,r^t Ar.P\jrv
V^iKf/ WASHINGTON. D.C 9554.1990(08)
JUL 31 1990
Mr. Douglas MacMillan, Director
Hazardous Waste Policy
National Solid Wastes Management Association
1730 Rhode Island Ave., N.W. Suite 1000
Washington, DC 20036
Dear Mr. MacMillan:
k.4*
This letter responds to your inquiry dated June 13, 1990, to
Richard Kinch, of my staff, concerning several aspects of the
Third Third land disposal restrictions final rule. Your letter
included questions about the following topics: multisource
leachate, treatment verification, the dilution prohibition, the
applicability of specified technology standards, effective dates,
identification of applicable waste restrictions, inorganic solid
debris, waste tracking, lab packs, underground injection, surface
impoundments, and •treatment: in tanks and containers. Responses
to the specific questions are presented in the same order as
included in your letter.
Please note that responses are not provided for questions
21, 23, 30, 34, 35, and 36, and the first part of question 42.
Responses to these questions will be provided in the near future.
A. MULTISOURCE LEACHATE
1. In response to your question whether multisource
leachate must be manifested now as F039 — that is, before August
8, 1990 — the answer is no. Please see the Third Third final
rule preamble discussion at 55 FR 22650. However, it should also
be noted that the manifest under the federal hazardous waste
program only includes the Department of Transportation waste
description, not EPA's Hazardous Waste Number.
2. HM question points out a discrepancy between the
regulatory language of 40 CFR Part 268 where multisource leachate
nonwastewaters were granted a two-year national capacity variance
for surface disposed wastes, and the regulatory language of 40
CFR Part 148 which failed to grant such a capacity variance to
the waste when destined for underground injection. The Agency
found, upon reexamination of this1 apparent typographical error,
that other waste types destined for underground injection were
also omitted from the regulatory language by mistake (although
Prinud en Kteyeltd Paptr
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they were included in the preamble). TKe effective dates for
these classifications are as follows: for F039 nonwastewaters
that are sent offsite for underground injection, the effective
date is August 8, 1990; for F039 nonwastewaters that are being
injected onsite, the effective date is November 8, 1990; and for
all F039 wastewaters, whether being injected onsite or offsite,
the effective date is May 8, 1992. These omissions will be
addressed in a correction notice that is expected to be published
in the Federal Register in September 1990.
3. Confirmation is requested on the applicability of the
F039 nonwastewater capacity variance as it applies to
contaminated soil. The Agency agrees that soil that is
contaminated with F039 is a nonwastewater that is subject to the
two-year national capacity variance until May 8, 1992, even if
some of the sources of the multisource leachate are from waste-
codes for which any capacity variance has expired. PleaseTsee 40
CFR 268.35(b) and (e).
4. In response to your question of what mechanism will be
allowed for adopting the F039 waste code into a permit, page
22621 of the Third Third final rule preamble explains that the
procedures that should be followed are those found in 40 CFR
270.42(g). The Agency has made the determination that if a
permit is simply being changed by substituting the F039 waste
code for the multiple waste codes that heretofore were carried
through with the leachate, then only a Class 1 permit
modification is necessary* The procedures require the submission
of a Class 1 modification by the date on which the waste becomes
subject to the new requirements, August 8, 1990.
5. The question asked is what is required for adoption of
the F039 waste code at a facility with a final Part B permit in
an authorized State which has not adopted the new F039 waste
code. The Agency points out that the new waste code is
considered a HSWA regulation immediately effective in authorized
States and implemented by EPA. Thus, the facility should submit
a Class 1 modification as described in question number four
above. This serves as a "HSWA rider" to the RCRA permit. (The
RCRA permit may have been issued by the State, EPA, or jointly by
both Agencies.) The Class 1 modification enables the facility to
manage multisource leachate under the Federal HSWA program;
therefor*, the State need not take any action to recognize the
effectiveness of the modification.
6. In response to the question of whether a final disposal
facility must test for all F039 constituents even though the
generator has certified, based on his knowledge of the waste,
that certain parameters are not present, the Agency addressed the
waste analysis requirements in the Third Third final rule
preamble on page 22669. Treatment and disposal facilities may
generally rely on information provided to them by generators.
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Treatment and disposal facilities, however, must conduct periodic
detailed physical and chemical analyses of their waste streams to
assure that the appropriate Part 268 treatment standards are
being met. Even though the Agency does not specify the frequency
of such corroborative testing, this implies that a treatment or
disposal facility must test for all F039 constituents at some
time, even though the generator has certified, based on his
knowledge, that certain parameters are not present. The Agency
recognizes that waste analysis parameters and the frequency of
testing are best established on a site-specific basis. Thus, a
streamlined permit modification procedure was established in the
Third Third final rule to allow appropriate testing requirements
and frequencies to be incorporated into permits. Permit
modifications and implementation procedures are discussed at page
22621 of the Third Third preamble.
7. The scenario presented in this question is analogous to
that in question number 6. The disposal facility may generally
rely on treater-supplied information, but is also required to
perform periodic corroborative testing.
8. The question presented is whether a TSDF may dispose of
its own solidified leachate in an onsite, non-MTR cell during the
two-year national capacity variance. The Agency set out the
requirements for wastes disposed of during a national capacity
variance in the First Third final rule on August 8, 1988. These
requirements include that wastes disposed in a landfill or
surface impoundment during the period of a national capacity
variance may only be placed in a unit meeting the minimum
technological requirements (see 40 CFR 268.5(h)(2)).
9. In response to the question of whether the F039 waste
code is immediately effective on May 8, 1990, the answer is no.
The Agency delayed the effective date for the new F039
designation until August 8, 1990. This period of time, as
indicated previously, should have been used by facilities to
modify their permits to include the new waste code and their
waste analysis plans to specify the constituents and the
frequency of waste analyses. Please see the preamble discussion
at page 22650. In response to the question of notifying and
certifying requirements for F039 going for partial treatment, the
Agency requires that all constituents and applicable treatment
standards be included on the notification and certification,
regardless of whether it is sent to a facility for partial or
total treatment.
B. TREATMENT VERIFICATION
10. Under 40 CFR 264.13(a)(1), certain testing must occur
prior to hazardous waste management; thus, owners or operators of
treatment, storage, and disposal facilities must obtain detailed
chemical and physical analyses of representative waste samples.
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In addition, corroborative testing is now required on occasion
even where testing data is supplied. Approved waste analysis
plans will eventually specify the frequency of all testing.
11. In response to your question regarding the
certification in 40 CFR 268.7(b)(5)(iii), if the analysis is
performed by an off-site independent lab, who makes the
certification that "I have been unable to detect the inorganic
hazardous constituents...", such a certification can be made by
the laboratory as an authorized representative. The laboratory
would include this certification with the laboratory results to
become part of the TSD's required paperwork under section 268.7.
12. This question concerns the use of the TCLP versus the
EP for measuring compliance with the characteristic lead
treatment standard and the characteristic and associated arsenic
treatment standards. The TCLP may be used to measure compliance
for these wastes. If the waste meets the treatment standard
through analysis of the TCLP leachate, there is no requirement
that the EP must also be used. If the waste does not meet the
treatment standard through analysis of the TCLP leachate, the EP
may be used. If the treatment standard is met according to the
analysis of the leachate from use of the EP, then the waste
complies with the treatment standards.
13. This question asks for an example of the new
"referencing provision" for notifications. The preamble
discussion on page 22668 and the regulatory language of amended
section 268.7 specifies the information that is required on the
notification when referencing treatment standards. In
particular, the hazardous waste number (e.g., 0003), the
subcategory of the waste (e.g., reactive cyanide subcategory),
the treatability group of the waste (e.g., nonwastewater), and
the CFR Part, section, and paragraph where the treatment standard
appears (e.g., section 268.42(a)) should all be on the
notification when using the referencing provision. When the
treatment standard is expressed as a specified technology, the
applicable five-letter treatment code (e.g., INCIN) found in
Table 1 of section 268.42 must also be listed on the
notification.
C. DILDTTQM PROHIBITION
14. Aft scenario presented is that of a waste which has
both organic* and metals (for which treatment standards have been
established) which is blended in a tank with other wastes prior
to incineration. The resultant incinerator residues meet all
organic and metal treatment standards. In response to the
question of whether further treatment of the metals is required,
the answer is no.
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15. The scenario presented is that of an F006 waste
containing both metals and cyanides above the treatment standards
that is treated by stabilization. The treatment standards are
met for both the metallic constituents and the cyanide. The
question ia whether this is considered to be impermissible
dilution of the cyanide. The objectives of the dilution
prohibition are to assure that prohibited wastes are actually
treated rather than diluted, and to assure that prohibited wastes
are treated by methods that are appropriate for that type of
waste. The Agency considers stabilization of cyanide to be
impermissible dilution — that is, stabilization is not an
appropriate method of treatment for cyanide. Stabilization
reduces the leachability of the cyanide but does not destroy it.
In the Second Third final rule, the Agency stated that
stabilization is not an applicable technology for the treatment
of the majority of cyanide wastes (54 FR 26609). This is
supported by the legislative history of RCRA section 3004 fro)
which indicates that Congress intended that the "destruction of
total cyanides would be required as a precondition to land
disposal" (130 Congressional Record S9179, July 25, 1984,
statement of Senator Chafee). The BOAT for cyanide is based on
the performance of alkaline chlorination. This technology
destroys the cyanide constituents and converts cyanides to carbon
dioxide and nitrogen.
16. The question is what are the administrative
requirements for characteristic wastes that are blended for fuel
substitution, and in the course of blending, the characteristic
is lost. Whenever a characteristic hazardous waste loses its
characteristic (and thus its classification as a hazardous
waste), for each shipment of blended fuel, a notification and
certification must be sent to the appropriate EPA Regional
Administrator or State authorized to implement the Part 268
requirements (see 55 FR 22688, section 268.9(d)).
17. The first question is whether cyanide is considered to
be an "other inorganic." The answer is no. The Agency does not
consider cyanide to be an other inorganic and thus suitable for
stabilization (see response to question 15). The next question
is whether a facility nay stabilize cyanide wastes to meet
treatment standards if they show that there is more than just
dilution occurring. EPA maintains that merely reducing the
leachability of cyanide is inadequate treatment; the destruction
of cyanid* !• a precondition of land disposal. Stabilization,
therefore, would not be allowed because there is no evidence of
destruction of cyanide. An example is presented of treatment of
a waste containing 5900 ppm total cyanide that is stabilized
using a waste to additive ratio of one part waste to four parts
additive. After stabilization, the waste meets the 590 ppm total
cyanide treatment standard. The assertion is made that a ten
fold reduction in cyanide concentration has occurred, and a
maximum of less than half of that reduction is attributable to
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dilution. The question is whether this is permissible. As has
been established in this answer, and in answer number 15 above,
this is not permissible because stabilization is not an
applicable technology for the treatment of cyanide wastes.
18. The question asked is what is the difference between
aggregation by the treater of a waste and aggregation by the
generator; the example provided in the question concerns
aggregation of EP toxic metals in industrial sever systems. The
answer is that there is no difference. In particular, 'toxic
characteristic wastes ordinarily may not be impermissibly diluted
(either by a generator or a treater) to meet the treatment
standards if such wastes will be land disposed in a RCRA Subtitle
C or D facility. However, if toxic characteristic wastes are
treated or disposed of in certain systems regulated under the
Clean Water Act or Safe Drinking Water Act, the dilution
prohibition does not apply. Please see the preamble discussion
at pages 22651-22659.
D. APPLICABILITY OF SPECIFIED TECHNOLOGY STANDARDS
19. The Agency agrees with the interpretation that the
specified technology of "INCIN" does not include units such as
boilers, furnaces, and cement kilns that burn hazardous waste for
their fuel value or material recovery (units not regulated by the
performance standards imposed on permitted incinerators). On the
other hand, Subpart O includes among those considered to
incinerate hazardous waste, owners or operators who burn
hazardous waste in boilers or in industrial furnaces in order to
destroy it or who burn hazardous waste in boilers or industrial
furnaces for any recycling purpose and elect to be regulated
under the subpart. Thus, the specified technology of "INCIN"
does apply in these circumstances.
20. The Agency intended that the requirements of section
268.42(c)(3) (the requirement that lab packs are incinerated in
accordance with the requirements of 40 CFR Part 264, Subpart 0,
and Part 265, Subpart 0), not allow burning in boilers and
industrial furnaces. The Agency intends that such lab packs be
incinerated in units subject to the performance standards of 40
CFR 264.343 or 265.343.
22. Th« question seems to center around the fact that
incineration is required for certain P and U codes, but when
these specific wastes are constituents in listed wastes,
incineration may not be required. The question asked is whether
a performance standard (concentration-based standard)
automatically exempts a waste from incineration (treatment
standard expressed as a method). The fact that a concentration-
based standard is specified does not automatically "exempt" a
waste from incineration; in many cases, incineration may be the
only technology that will achieve the concentration levels. When
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a concentration level is specified, however, there is no
requirement that incineration must be used. As far as the
concern about air emissions, for the P and U wastes for which
incineration was specified, the Agency has reason to believe that
they will pose a significant air emission risk. Very few of
these P and U wastes are found as constituents in listed wastes;
when they are, it is much more difficult to determine the air
emission risk for the listed waste matrix than it is for the
listed P and U waste which is more likely to be an industrial
grade chemical.
E. EFFECTIVE DATES
24. The question is when is the TCLP allowed for
characterizing wastes for purposes of the land disposal
restrictions. The EP should be used to characterize wastes for
purposes of hazard determination in order to see if they are
restricted under the Third Third final rule. This is true even
after the TC final rule becomes effective on September 25, 1990.
EPA interprets the statute such that wastes that exhibit the
toxicity characteristic by the TCLP but not by the EP are not
presently prohibited because such wastes are newly identified
pursuant to RCRA section 3004(g)(4).
25. The question is whether RCRA corrective action wastes
and CERCLA cleanup wastes should be granted a national capacity
variance in the Third Third final rule, because such capacity
variances were granted in the First and Second Third rules.
The questioner is mistaken that national capacity variances were
granted for RCRA/CERCLA actions in the First and Second Third
final rules; no such variances were granted. Rather, national
capacity variances were granted for soil and debris contaminated
with First and Second Third wastes for which BOAT was
incineration. A similar national capacity variance was granted
in the Third Third final rule for soil and debris contaminated
with Third Third wastes for which BOAT is incineration,
vitrification, or mercury retorting.
26. The request is for an update on the status of K061 high
zinc waste, as to whether it received an additional one-year
variance in the Third Third final rule. Please see the
discussion in the preamble at page 22599. Stabilization remains
a permissible way of treating this waste for one additional year.
If stabilisation is used, the concentration-based standard must
be met.
F. IDENTIFICATION OF APPLICABLE WASTE RESTRICTIONS
27. The questioner believes that there is an inconsistency
between amended 40 CFR 262.11 (that indicates, it is asserted, a
generator must determine if his waste is characteristic UNLESS it
is listed), and amended 40 CFR Part 261 (which requires that the
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determination of hazardous characteristic be made for all waste).
There is no actual inconsistency between these parts of the
regulation. Amended section 262.11 actually states two
circumstances that will indicate whether the determination of
hazardous characteristic must be made: (1) for purposes of
compliance with 40 CFR Part 268 (since no further conditions are
specified, the determination must be made for all solid wastes
regardless of whether or not they are listed hazardous wastes)
or, (2) if the waste is not a listed hazardous waste (this
includes wastes that are not subject to the land disposal
restrictions so the determination must be made only for solid
wastes, not listed wastes).
28. An issue is raised in regard to a perceived discrepancy
between the requirements of 40 CFR 268.35(j) and 268.9(b)
regarding the rule that when a waste is a listed waste and^a
characteristic waste, the more specific treatment standard""
applies. The Agency has determined that treatment standards that
are in effect for listed wastes are more specific than treatment
standards in effect for characteristic wastes. The perceived
discrepancy arises when the treatment standard for the listed
waste is less stringent than the treatment standard for the
characteristic waste, as is the case in the example of chromium '
in F006 (for which the treatment standard is 5.2 ppm) and EP
toxic chromium (for which the treatment standard is the
characteristic level of 5.0 ppm). The question is which
treatment standard should be met for chromium in F006, the more
specific, or the more stringent. The rule that the more specific
treatment standard is applicable takes precedence, thus the
treatment standard for chromium in F006 is 5.2 ppm, because .it is
the treatment standard for the listed (more specific) waste.
Thus, the Agency sees no discrepancy between section 268.9(b) and
section 268.35(j).
29. A request is made for an explanation of how to classify
wastes as either characteristic wastes or listed wastes (when the
waste is considered both characteristic and listed) for purposes
of the notifications required under 40 CFR Part 268.7.
In the case of a listed waste that is classified as a
characteristic waste, the most specific treatment standard
applies (55 FR 22659) and should be included on the notification.
This means that if both the treatment standard for a listed waste
and the treatment standard for a characteristic waste are in
effect, then the treatment standard for the listed waste applies
because it i« more specific.
An example is presented of the listed waste K061, which
contains lead. Since the treatment standards for K061 are
currently in effect, the lead is subject to the K061 treatment
standard rather than the treatment standard for EP toxic lead.
The question is asked whether only the K061 waste code is
included on the generator's biennial report and manifests, or
8
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should both K061 and D008 (EP toxic lead) be included. Only the
K061 waste code should be included on the generator's biennial
report because the K061 treatment standard is more specific.
Also, since K061 includes a treatment standard for lead,
including the D008 waste code on the biennial report would cause
a double-counting of the volume of lead waste actually being
generated. Only the K061 waste code would be included on the
notification required under 40 CFR 268.7 (as well as all other
information required under section 268.7(a)(1)). Only the U.S.
Department of Transportation (DOT) description is required en the
manifest; there is no Federal requirement to list the EPA
Hazardous Waste Number.
If the treatment standard for the listed waste is subject to
an extension of the effective date (through a national capacity
variance or case-by-case extension) and the treatment standard
for the characteristic waste is in effect, then the treatment
standard for the characteristic waste applies because it is the
only standard that it is currently in effect. An example is
presented of the listed wastes K048 - K052, which contain
chromium. K048 - K052 wastes are subject to a six-month national
capacity variance; consequently, the treatment standards would
not be in effect until November 8, 1990. The treatment standard
for EP toxic chromium is effective on August 8, 1990. During the
period from May 8, 1990 until August 8, 1990, the waste is not
subject to any treatment standards due to the three-month
national capacity variance that was granted for all Third Third
wastes. Therefore, the notification would include the applicable
K048.- K052 waste code and the date upon which the waste is
subject to the prohibitions (November 8, 1990), and all other
information required under section 268.7(a)(3). The notification
would also include the D007 waste code and the date upon which
the waste is subject to the prohibitions (August 8, 1990), and
all other information required under section 268.7(a)(3).
During the period from August 8, 1990 until November 8,
1990, the waste is subject to the treatment standard for EP toxic
chromium since the effective date for this waste has passed (the
K048 - K052 treatment standard is still not in effect). The
notification would include the applicable K048 -K052 waste code
and the data upon which the waste is subject to the prohibitions
(November 8, 1990) as veil as the D007 waste code and all other
information required under section 268.7(a)(l). The waste, of
course, ayat be treated to meet the 0007 treatment standard prior
to land disposal. When the effective date for the K048 - K052
wastes has passed (November 8, 1990), the waste will be governed
by the waste code and treatment standards for the K048 - K052
wastes, since these treatment standards are now more specific,
and the D007 waste code may be omitted from the notification.
EPA points out, however, that when the listed waste displays
a characteristic that is not addressed as a constituent of
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concern in the listed waste, the treatment standard for both the
listed waste and the characteristic waste must be met (55 FR
22659). EPA applies this principle at the point of generation.
Therefore, both the characteristic and the listed waste codes
must be included on the notification.
31. Please see answer numcer 29.
32. The question is whether on September 25, 1990 (the
effective date of the TC final rule for large quantity
generators) a waste that becomes hazardous solely due to the
change from EP testing to TCLP testing is subject to the
treatment standards. Wastes that exhibit the TCLP characteristic
but not EP toxicity are considered to be newly identified wastes.
Newly identified hazardous wastes are not subject to the land
disposal restrictions until treatment standards and prohibitions
are promulgated by the Agency. This should not be considered an
'exemption1 that one may or may not take advantage of; rather,
newly identified wastes are a category of wastes that are subject
to the schedule for promulgation of regulations found at RCRA
section 3004(g)(4).
33. The question concerns the status under the land
disposal restrictions of wastes that were previously exempted
from the definition of hazardous wastes under the Bevill
amendment. These wastes are considered to be newly identified
wastes no matter when they may be generated. See also answer
number 32. Both of these matters were discussed explicitly in
the preamble to the final Third Third rule at pages 22660 and
22667.
G. INORGANIC SOLID DEBRIS
37. This question asks whether a material that is mixed
with nonvastewater materials (such as soil) and defined as
inorganic solid debris is subject to the treatment standard for
the nonwastevater material. An example is given of a soil and
cement debris mixture that carries the D006 waste code. In the
example, the material is stabilized such that the solid fraction
meets the treatment standard. In response to the question of
whether the inorganic debris portion would be subject to the DO06
treatment standard, it is difficult to determine from the example
provided how the waste is being treated, so it is difficult to
formulate an answer. It is unclear how this mixture of soil and
debris could be stabilized to meet the treatment standard for
D006 unless the cement debris was first crushed and mixed with
the soil and then the soil/debris mixture was stabilized. If
that is the case, then the debris is subject to the D006
treatment standard because it has become part of the soil matrix
and the soil is subject to the D006 treatment standard.
10
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The next question is whether the inorganic solid debris is
subject to enforcement grab sampling for the purpose of testing
the mix for meeting the treatment standards. Here again, the
debris portion would of course be subject to grab sampling for
purposes of enforcing the treatment standards (because the
stabilized soil would be subject to grab sampling for enforcement
purposes). It should be remembered, however, that if the debris
portion is separated from the soil, the debris is subject to a
two-year national capacity variance as "inorganic debris."
Inorganic debris is not required to meet the D006 treatment
standard until the effective date of May 8, 1992 (however, the
notification requirements of 268.7(a)(3) apply, and if the debris
is disposed in a landfill or surface impoundment, the unit must
meet the minimum technological requirements).
38. The question posed is whether any organics (hazardous
or nonhazardous) may be included in the classification of""
inorganic solid debris. Nonhazardous organic materials are not
precluded from inclusion in the waste matrix, provided the
material meets the definition of "inorganic solid debris" in
section 268.2.
H. WASTE TRACKING
39. A scenario is presented where a characteristic waste is
treated to below the characteristic level but the treated waste
is sent to a Subtitle C land disposal facility. The question
posed is whether the generator must notify the Agency as would be
required if the waste were disposed at a Subtitle D facility.
The answer is no; the notification should only be sent to the
Subtitle C facility. Please see the preamble discussion at page
22662.
40. The Agency is presuming that in the scenario presented,
a facility has a permit that includes a narrative description
that allows disposal of incinerator ash. If this is the case,
then the facility should be able to take any incinerator ash,
whether it is from the incineration of Third Third wastes or not.
In fact, EPA has encouraged the appropriate use of narrative
descriptions in permits to address situations just like the one
presented here. The question, however, is somewhat vague and
would actually depend upon the wording of the specific permit
language.
41. The question asked is how often must notifications for
treated characteristic wastes (presumably that are disposed of in
a Subtitle D facility) be sent to the Regional Administrator.
Such notifications must be sent with each shipment. Please see
section 268.9(d). As to whether the notification is waste stream
specific, it is unclear exactly what is being asked. The
information that must be provided in the notification is
specified in section 268.9(d), and includes a description of the
11
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waste as initially generated, including the applicable EPA
Hazardous Waste Numbers and treatability group; in this sense,
the notification is waste stream specific.
I. LAB PACKS
42. Clarification is requested on whether the simplified
lab pack procedures set out in the Third Third final rule include
burning in cement kilns. Cement kilns are not included under the
new lab pack procedures. Rather, the simplified lab pack
procedures only apply if the lab pack is burned in an incinerator
in accordance with the performance standards set out in 40 CFR
264.343 (see section 268.42, Table 1, under "INCIN").
J. UNDERGROUND INJECTION
43. Since this question pertains to the land disposal
restrictions program for underground injected waste, we will be
working with the Office of Water to prepare a response. Should
you need guidance in the meantime, please contact Bruce Kobelski
at 382-7275.
K. SURFACE IMPOUNDMENTS
44. In response to the question of when a prohibited waste
may be placed into a surface impoundment meeting minimum
technology requirements (MTR) , such a waste may be placed in a
MTR unit if it: (1) meets all applicable treatment standards; (2)
is subject to a national capacity variance or case by case
extension; or, (3) is subject to the treatment surface
impoundment exemption of 40 CFR Part 268.4. The next question is
whether a restricted waste not meeting the treatment standards
may be stored in a such a surface impoundment for up to one year
provided that all residuals not meeting the treatment standards
are removed within that year. The answer is no. Storage of
hazardous wastes is only allowable in tanks or containers;
placement of untreated hazardous waste into a unit for purposes
of storage is actually land disposal and is therefore prohibited
(unless section 268.4 is complied with). Please see RCRA section
45. In response to the question of whether F039 that is
placed in 4 permitted tank and is then pumped to a carbon
adsorptiott.cnit and then back to the tank is considered treatment
in a tank, the answer is yes. The treatment process described
may be subject to the requirements of section 262.34, including
the new waste analysis requirements of section 268.7, rather than
the requirements of 40 CFR Part 264. A determination of how to
classify this treatment process would best be made by Regional or
State permit writers who are familiar with the specifics of the
site.
12
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I trust these answers will be helpful in dealing with the
concerns of your membership. Since these answers were developed
in a short period of time, the answers provided in this document
represent the Agency's initial interpretation of the situation
described by each question, and do not necessarily reflect the
Agency's final position. Answers to many of your questions will
appear in the forthcoming corrections notice to the Third Third
final rule. If you have any further questions, please feel free
to call Matthew A. Straus of my staff at (202) 382-6972.
Sincerely,
Sylvia K. Lowrance, Director
Office of Solid Waste
13
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UNITED S1~.ES ENVIRONMENTAL PROTECTION Ac.<4CY
9554.1990(09)
flJ6 13 S90
Mr. Phillip L. Cornelia
Senior Counsel
Chemical Waste Management, Inc.
3001 Butterfield Road
Oak Brook, Illinois 60521
Dear Mr. Cornelia:
This letter is in response to your letter dated July 13,
1990, concerning the final Third Third Rule. In your letter, you
presented an example of a soil that is contaminated with U059,
P093, and KOOl and that exhibits the characteristic of lead
(D008). As you stated in your letter, U059 and P093 are Third
Third wastes and are subject to a technology-based standard of
incineration. KOOl is a First Third Waste with a numerical
treatment standard based on incineration followed by
stabilization of the ash. D008 is a Third Third waste with a
numerical treatment standard based on stabilization. You have
asked the following questions:
1. Because no capacity variance exists past August 8, 1990
for 0008 wastes, must the soil be stabilized to meet
the 0008 treatment standard?
2. Because the KOOl soil and debris variance expires
August 8, 1990, must the soil be incinerated and then
the resulting ash stabilized after that date?
3. If the soil did not contain KOOl, must the soil be
stabilized?
The response to your first question is that the soil would
not need to be stabilized in order to meet the treatment standard
for 0008 wastes. On page 22650 of the June 1, 1990 Federal
Register notice, the Agency specifically states that if soil and
debris are contaminated with Third Third prohibited wastes whose
treatment standard is based on incineration (for example U059 and
P093) and also with other prohibited waste whose treatment
standard is based on an available type of technology (for example
0008), the soil and debris would remain eligible for the
national capacity variance. Therefore, in vour example the soil
would remain eligible for a capacity variance.
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UNITE DS-^,ESENV1RO>tt*EMTAL PROTECTION A^-UCY
In response to your second question, the soil would have to
be treated to meet the K001 treatment standard for the organics
and metals after August 8, 1990. In response to your third
question, if the soil was not contaminated with K001, then the
soil would not have to be treated and would remain eligible for
the national capacity variance. During a national capacity
variance, if these wastes are disposed of in a landfill that unit
would have to meet the minimum technological requirements as
described in 3004(o).
Also, in your letter, you requested a clarification of
whether the contaminated soil in question remains eligible for
only the U059 and P093 variance or whether it also has a variance
from the 0008 treatment standard. You asked this question due to
the preamble language on page 22660 stating that, for wastes that
are subject to more than one treatment standard, during the
period of a national capacity variance for one of the wastes, the
treatment standards for any other waste codes that have not
received such a variance must be met. The answer is that the
Agency does distinguish between a contaminated soil and debris
and other prohibited wastes. The example the Agency presents on
page 22660 is only for listed wastes not for contaminated soil
and debris. The Agency does not believe that adequate capacity
exists to treat soil and debris. Therefore, a soil contaminated
with U059, P093, and D008 would be eligible for the capacity
variance but a sludge or listed waste that is contaminated with
U059, P093, and D008 would have to be treated in order to comply
with the treatment standard for D008.
If you should have any further questions, please do not
hesitate to call Monica Chatmon-McEaddy, of my staff, at
475-7243.
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Waste
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9554.1990(10
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE Of
SOLID WASTE AND EMERGENCY RESPONSE
Mr. Douglas MacMillan, Director
Hazardous Waste Policy
National Solid Wastes Management Association
suite 1000
1730 Rhode Island Ave., N.W.
Washington, D.C. 20036
Dear Mr. MacMillan:
In light of a question that has arisen about the responses
to questions 21 and 42 in our letters to you of July 31 and
August 8, 1990, I an sending this clarification to ensure that: no
misunderstanding exists about EPA's current position. Our
responses to questions 21 and 42 indicated that where EPA has
specified a particular technology as the treatment standard,
wastes governed by that standard must be treated using that
method. If the specified method is incineration, this requires
treatment in a device subject to the 40 CFR Part 264 Subpart 0
regulations, or a device that makes the equivalency demonstration
under 40 CFR 268.42.
This response is consistent with prior EPA pronouncements,
such as the preamble to the Third Third rule (see, for example,
55 FR 22536, June 1, 1990). However, our responses to questions
21 and 42 may be misinterpreted because our statement on
treatment standards and equivalency demonstrations addresses only
prohibited waste; it does not address restricted waste sent to a
device that is exempt under the Bevill amendment. A restricted
waste sent to a Bevill device would not be prohibited so long as
the residues from the waste processing remain within the scope of
the Bevill amendment (55 FR 22660-61).
As EPA indicated in the proposal to regulate boilers and
industrial furnaces (54 FR 43718, Oct. 26, 1989), we will
examine the issue of how to determine if residues from co-
processing Bevill raw materials and hazardous waste remain within
the scope of any Bevill amendment exclusion. Also, please note
that wastes sent to a Bevill device are still subject to the
administrative tracking requirements for restricted wastes under
the land disposal restrictions, but would not have to meet a
specified BDAT standard before land disposal (55 FR 22662).
tm Ktcycttd Paptr
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I trust that this clarification removes any uncertainty that
may have arisen from our earlier responses. If you have further
questions, please feel free to call Matthew A. Straus of my staff
at (202)382-6972.
Sincerely
/"Director
ffice of Solid Waste
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9554.1990(11)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
AJ624B90
OFFICE OF
„ _ ... _. _ , . SOLID WASTE AND EMERGENCY RESPONSE
Mr. Keith D. Colamanno
Senior Project Engineer
REMCOR, Inc.
701 Alpha Drive
P. O. BOX 38310
Pittsburgh, PA 15238-8310
Dear Mr. Colanarino:
In your letter of August 10, 1990, you expressed concern
with regard to the correction notice in the August 2, 1990
Federal Register (55 FR 31387). The statement which you quoted
from page 31388 of the August 2 notice is somewhat misleading.
The statement should have said that the Extraction Procedure (EP)
will no longer be used for hazardous waste identification
purposes.
As you are aware, the treatment standards for certain lead
and arsenic waste were based on the EP, and therefore, either the
EP or the Toxicity Characteristic Leaching Procedure (TCLP) can
currently be used to demonstrate compliance under Land Disposal
Restrictions (LDR) for D006 (arsenic) and D008 (lead) wastes.
Since the EP can still be used for this purpose, it is so noted
in the regulatory language of the LDR regulation.
Currently, the Waste Treatment Branch is amending the
regulatory language of the May 8, 1990 Third Third final rule
(55 £B 22520, June 1, 1990) to resolve this issue. This will be
done as part of a correction notice that will state that Appendix
I of Part 268 (TCLP) or SW-846 test method 1310 (EP) may be used
for measuring compliance. This correction notice is expected to
be published in the Federal Register before the end of the year.
Until the CFR is revised, the EP can be found in current CFR
(Part 261, App. II) and as Method 1310 in SW-846, "Test Methods
for Evaluating Solid Waste (Physical/Chemical Methods)," Third
Edition; thereafter, the EP can readily be found only in SW-846.
Prialtd a* RtcycUd Paptr
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I hope that this letter resolves any inconsistencies created
by the August 2 correction notice. If you would like to discuss
this further or have other concerns, please contact the
Characteristics Section of the Office of Solid Waste at
(202) 475-8551.
Sine
"Office of Solid Waste
-2-
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RCRA/SUPERFUND HOTLINE SUMMARY
9554.1990(12)
AUGUST 1990
2. Point of Generation
Two process units, one producing a strong acidic solution with a pH less
than 2.0 and another producing a strong basic solution with a pH greater
than 12.0, are individually joined by short lengths of pipe to a common
collecting pipe. These solutions, upon contact, neutralize one another.
This co-mingled wastestream no longer exhibits the characteristic of
corrosivity. Would this waste be considered hazardous and subject to land
disposal restrictions or, due to its neutral status only be subject to RCRA
Subtitle D regulation?
The facts as given show two hazardous wastes with the characteristic
of corrosivity. The points of generation are both upstream of the
combination in the common collecting pipes. These wastes are
subject to the land disposal restrictions. Removing the characteristic
of corrosivity by combining these wastes can satisfy the treatment
requirement of deactivation set out in 40 CFR 268.42, Table 2.
Dilution may not be appropriate if there are other treatment
requirements for the waste matrices. See 55 FR 22549, 22659 (June 1,
1990). The commingled wastestream, if not otherwise hazardous, is
not subject to any other Subtitle C regulations, including permitting.
Contact: Debbie Wood, OSW (202) 382-7937
Research: Steve Baker
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UNITED aTATES ENVIRONMENTAL PROTECT10,, AGENCY 9554.1990(13)
,
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The DOT requirements at 49 CFR 173.12 presents criteria to
be used in selecting a proper outside package. Paragraph (b) of
49 CFR 173.12 states:
The outside packaging must be a DOT specification
metal or fiber drum. It may also be a
polyethylene drum capable of withstanding:
1. The vibration and compression tests specified
in 178.f9-7(c)(1) and (2), and
2. A four foot drop test as specified in
178.224-2(b).
The Agency found the commenters1 argument about the danger
posed by opening metal drums and emptying inner containers prior
to incineration persuasive. The Agency agreed that if fiber
drums were used, the entire lab pack unit could be incinerated.
Furthermore, the Agency agreed that the DOT requirements for the
structural integrity of fiber drums would assure that lab packs
were transported in a safe container to incinerators. Therefore,
the provision was made in 40 CFR 264.316(f) and 265.316(f) that
fiber drums were acceptable, and the reference to 49 CFR 173.12
was incorporated into these sections.
As to a clarification of 49 CFR 17-3.12, it is the Agency's
understanding that when DOT regulations specify drums. that is
indeed what is meant. Thus, fiber or wooden boxes or other
containers not meeting the DOT specifications in 49 CFR Parts 178
— 199 for fiber drums may not be used as outer containers for
lab packs. The DOT specifications, however, include several
types of fiber drums, and any of these would be acceptable as
outer containers for lab packs.
Additionally, you request clarification of the effect the
performance packaging specifications proposed in HM181 will have
on lab packs when they are implemented in December of 1990.
Based on the Agency's understanding of the proposed
specifications, they should have very little impact on the lab
pack requirements. The performance-oriented packaging provisions
will specify criteria for fiber drums (as well as other DOT outer
containers) based on the DOT hazard classification of the
materials being transported (e.g., flammable liquids). The DOT
expects that such criteria will add flexibility to the
requirements for outer containers inasmuch as they may be built
in any design, or of various materials, so long as they meet the
criteria for that particular hazard classification. As to the
expected effect the performance-oriented packaging provisions
will have on lab packs, the Agency foresees that the generator
may be required to give additional attention to packing only
wastes that fit within one DOT hazard classification in the lab
pack; however, given that all the wastes included in the
Appendices to 40 CFR 268 are capable of being incinerated, the
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Agency expects that most of these wastes will fall within one or
two of the DOT hazardous classifications (i.e., flammable
liquids, flammable solids).
I hope this letter clarifies the meaning of "fiber drum" as
it pertains to lab packs regulated under the land disposal
restrictions. If additional information is needed about current
DOT specifications for fiber drums, the DOT hazard
classifications, or proposed HM181, please contact DOT directly.
If additional information is needed about the alternative
treatment standards for lab packs, please call Rhonda Craig of
EPA's Waste Treatment Branch at (703) 308-8434.
i
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9554.1990(14)
WASHINGTON, D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
CC 7 1 w
--J L \ iwT^
Mr. Kevin S. Dunn
Project Manager
Environmental Policy Center
Lav Companies Environmental Group
1828 L Street, N.W., Suite 711
Washington, O.C. 20036
Dear Mr. Dunn:
This letter is in response to your letter dated
November 16, 1990 requesting clarification on certain issues
regarding treatment standards for certain mixed radioactive
wastes.
With regards to Question l (as referred to in your letter),
"placement in a heavy stainless steel box and welding the box
closed" would not be considered to comply with the standard
identified as "MACRO" in 268.42 Table 1 (55 IB 22693 (June 1,
1990). This standard is quite clearly described in regulatory
language in Table 1 as "Macroencapsulation with surface coating
materials such as polymeric organics (e.g., resins and plastics)
or with a jacket of inert inorganic materials to substantially
reduce surface exposure to potential leaching media. Macro-
encapsulation specifically does not include any material that
would be classified as a tank or container according to 40 CFR
260.10" (emphasis added). Paraphrasing the regulatory language,
compliance with the macroencapsulation standard explicitly
prohibits containerization of wastes or materials in a tank or
container meeting the regulatory criteria under the 40 CFR
260.10.
This, is nja£ the same situation as where the U.S. Naval
Nuclear Propulsion Program wanted to. land dispose defueled
submarine reactor compartments. The information provided by the
Navy indicated that the "jacket of inert inorganic materials"
(i.e., the steel surrounding the lead) could "substantially
reduce surface exposure to potential leaching media" and that
due to their size and structure these compartments would not be
classified as a tank or container according to the definitions
in 40 CFR 260.10. EPA purposely modified the proposed standard
for D008 radioactive lead solids to include "jackets of inor-
ganic materials" in order to specifically account for these
submarine reactor compartments. EPA felt that it was necessary
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- 2 -
to add the language to the definition of macroencapsulation to
prevent the "jacket of inorganic material" from being
interpreted as including materials that are merely containers or
drums.
With regards to the plastic coated, lead lined gloves in
Question 2 of youf letter, they would be considered to comply
with the standard identified as "MACRO" provided that none of
the lead is exposed (i.e., the entire surface of the lead is
coated) and provided that the coating provides a substantial
reduction in surface exposure to potential leaching media (i.e.,
the gloves should not be expected to be exposed to physical,
chemical, or thermal conditions where the integrity of the
surface coating could likely be breached). With regards to the
lead weights in Question 2. the wastes may be considered to meet
the specified method of "MACRO", as generated, provided the
stainless steel surrounding the lead weights does not meet the
definition of a tank or container and provided a substantial
reduction in surface exposure to potential leaching media can be
determined.
The standard identified as "MACRO1* currently applies only
to D008 wastes fitting the description of "Radioactive Lead
Solids" as defined in Table 3 of 268.42 (55 £B 22700, (June 1,
1990)) (e.g., those wastes containing elemental lead forms of
lead or that act specifically as radioactive shielding). This
standard is currently not applicable to the 0006 wastes referred
to in Question 3. These 0006 wastes would have to comply with
the concentration-based standard for 0006 which is based on a
TCLP analysis. Verification of compliance with this standard
would require crushing or grinding of the material and
compliance cannot be achieved by dilution. Thus, macroencapsu-
lation processes would not comply with existing BOAT standards
for metals.
Other than a treatability variance your 0006 waste may be
macroencapsulated if a no-migration petition is granted. As of
today, EPA had only granted a two-year capacity variance for
mixed wastes from the statutory deadline prohibiting the
disposal of mixed wastes scheduled in the First, Second, and
Third Third wastes. Previous capacity variances issued for
mixed wastes scheduled in the Solvent and Dioxin Rule and the
California List Wastes Rule had expired and thus, these mixed
wastes are banned from land disposal units unless they meet the
promulgated treatment standards.
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I trust this letter addresses all your concerns and
clarifies any outstanding issues you may have had on the
applicability of the treatment standard identified as "MACRO".
If you need further clarification, please contact Richard Kinch,
Chief of the Waste Treatment Branch, at (703) 308-8434.
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Waste
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STATES ENVIRONMENTAL PROTECT,-., AGENCY
9554.1991(01)
JAN 8 199!
Richard J. Pastor
Director, Government Relations
Envirosafe Mgt. Services, Inc.
P.O. Box 833
Valley Forge, Pennsylvania 19482-0833
Dear Mr. Pastor:
This letter-is in response to your letter dated October 25,
1990, concerning a possible inconsistency in the Agency's policy
on the regulation of cyanides under the Land Disposal Restrictions
Program of RCRA. In particular, you indicated specific instances
where you believe the Agency has been inconsistent in its position
on the use of stabilization for wastes containing cyanides. I
hope that this letter will help to clarify this matter. In that
vein, I would like to review the points you raised in some detail,
and to provide an explanation of our views, particularly as to the
full meaning of preamble language in the Land Disposal Restriction
rules.
First, you referred to the promulgation of the First Third
Land Disposal Restrictions (53 FR 31152) for F006 wastes, where
the Agency stated that the treatment standards for F006 were based
on stabilization using cement kiln dust and that the use of other
agents in the stabilization process is not precluded. Then you
noted the statement that EPA does not consider stabilization an
appropriate BDAT for cyanides. While you did not discuss these
reference* any further, you seemed to imply that when compared to
each othwr, an inconsistent policy on cyanides could be seen.
However, a closer examination of the First Third Land
Disposal Restrictions shows that the Agency did establish
treatment standards based on stabilization, but onlv for the
metals contained in FQ06. (Note: The First Third LDR rule
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promulgated treatment standards for cyanides in F006 wastes as
"reserved"). The preamble for F006 wastes (53 FB 31152, column
3) specifies the Agency's position on stabilization of cyanides
in F006 wastes versus stabilization of metals by stating; "EPA
does not consider stabilization—BOAT for the metals in this
waste—to be a demonstrated technology for the treatment of
cyanide." This statement is, to my reading, an accurate
reflection of EPAJs current position.
Your letter also emphasized some of the Agency's language in
the Second Third LDR rule (54 £B 26609) as follows: "The Agency
does not agree with commenters that stabilization is an applicable
technology for the treatment of the majority of cyanide wastes.
While some data may indicate that stabilization processes appear
to reduce the leachability of some forms of cyanides, the Agency
contends that destruction of cyanide is clearly a preferred
treatment method." Your added emphasis appears to imply that the
Agency was trying to indicate a degree of uncertainty about its
position. Your letter then quotes a later section of the preamble
as follows: "... based on the review of the available treatment
data, the Agency believes that the conventional cyanide treatment
technologies provide substantial treatment of both the amenable
and total cyanide concentrations as measured by the cvanide
amenable to chlorination test in method 9010 (EPA Publication SW-
846."
Emphasis of these passages appears to give the impression
that the Agency was stressing the use of the test method to meet
the numerical treatment standard as being more important than
destroying the cyanide. However, the language that directly
precedes the emphasized phrase sheds light on how to read the
quoted passage, i.e., that the Agency believes.that conventional
cyanide treatment technologies provide the necessary treatment to
achieve these standards. This is in agreement with the
legislative history (cited in our preamble and your letter) that
"destruction of total cyanides would be required as a precondition
to land disposal."
Certainly, the Agency is on record as saying that "other
technologies that can achieve these concentration based standards
are not precluded from use." However, this statement cannot be
taken alone, and all other applicable regulatory language must be
considered. In particular, section 268.3(a) states that "... no
generator, transporter, handler, or owner or operator of a
treatment, storage, or disposal facility shall dilute a restricted
waste as a substitute for adequate treatment to achieve compliance
-------
with subpart D of this part, ... ." Given the Agency's firm
position that cyanides must be destroyed and that stabilization,
as cyanide treatment, is considered impermissible dilution based
on the current lack of substantive evidence of cyanide destruction
in the stabilization process, use of general statements to
contradict specific determinations on BOAT standards is not the
appropriate reading of our intentions.
*•
Your letter also refers to a letter dated June 13, 1990, from
Douglas Mac Millan of NSWMA to Richard Kinoh of EPA. The example
referred to in your letter as question number 15 is really NSWMA's
question number 17, a hypothetical situation .for stabilization of
cyanides not supported by any submitted data. Our July 31, 1990,
response was that "destruction of cyanides is a precondition for
land disposal" and that the situation presented in question number
17 "is not permissible because stabilization is not an applicable
technology for the treatment of cyanide wastes." I have enclosed
a copy of EPA's response.
The Agency has established a treatment standard for the
majority of cyanide wastes at 590 ing/kg total cyanides based on
data from well-designed, well-operated cyanide destruction tech-
nologies. (Lower standards have been established for a few
cyanide wastes.) As noted in the administrative record for the
Second Third LDR Rule, data from certain land disposal facilities
indicate that the majority (85%) of F006 wastes were below the
original proposed treatment standard of 110 mg/kg total cyanides.
In fact very few wastes that were treated for cyanides indicated
total cyanides of 5,900 mg/kg (as in question 17) or as much as
1% (as in your intended waste acceptance policy). Perhaps these
cyanide wastes that you were considering for stabilization did not
receive efficient cyanide treatment in the first place.
Your reference to the "on-going" stabilization of F001, F002,
F003, F004, and F005 solvents does not really bear upon the
Agency's position on cyanides. Given what we consider to be a
clear indication of our position on the stabilization of cyanides
in regulatory discussions, the determinations of BOAT for these
solvents should not raise any indirect ambiguities on our separate
decisions for cyanide.
I trust that the fuller explanations above will assist you
in working with the treatment standards for cyanides as a pre-
cursor to land disposal. I encourage you to continue to discuss
this matter more fully with members of my staff if any questions
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still remain. In that event, I suggest that you contact Richard
Kinch, Acting Chief of the Waste Treatment Branch (703-308-8434).
I am certain that Envirosafe shares our concern about the safe and
effective treatment and disposal of cyanides. 'We look forward to
continued mutual efforts in this regard.
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Waste
Enclosure
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9554.1991(02)
RCRA/SDPERPUND HOTLINE MONTHLY SUMMARY
JANUARY 1991
1. Classification of Leachate Contaminated Ground Watey
Hazardous waste migration from an active Subtitle C landfill has resulted in local
ground water contamination. As part of a corrective action at the facility, 400-
gallon»of contaminated ground water are withdrawn from the uppermost aquifer
and will be sent off-site for underground injection. During the course of the clean-
up, thefacility determined that a leachate resulting from the disposal of a variety of
listed hazardous wastes is responsible for the contamination. In accordance with the
EPA "contained-in" policy, the ground water must be managed as a hazardous
waste, namely the leachate from the landfill For the purposes of compliance with
the Land Disposal Restrictions in 40 CFR Part 268, what hazardous waste
classification and treatment standard would apply to the ground water?
The leachate meets the definition of a multi-source leachate that is derived from
the treatment, storage or disposal of more than one listed waste, excluding F020-
F023 and F026-F028. In the Third Third Land Disposal Restrictions rule
promulgated on June 1,1990 (55 PR 22520), EPA announced its decision to
eliminate the practice of classifying multi-source leachate according to the
various listed wastes from which it was derived. In this rule, the Agency
established a separate treatability group for multi-source leachate, classified by
a single waste code, F039. (55 FR 22619) The effective date for this new
designation was August 8,1990, at which time the landfill facility was required
to classify its ground watar, or more precisely, the multi-source leachate
contained in the ground water, as F039. (55 F£ 22650)
Although the F039 waste classification became effective August 8,1990, EPA
granted a two-year national capacity variance until May 8,1992, for F039
wastewaters that are destined for underground injection (40 CFR Part 148.16).
The extension of the effective date was based upon EPA's assessment that
current treatment capacity for underground injected F039 wastewaters was
insufficient to require an immediate LDR prohibition effective date. (55 £E \
22646) During the period in which the variance is in effect, the F039 ground
water mixture, if disposed in a landfill or surface impoundment, must be
managed in a unit that satisfies the minimum technological standards in RCRA
Section 3004
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9554'. 1991 (03)
RCRA/SDPERFUND HOTLINE MONTHLY SUMMARY
APRIL 1991
l- Treatment of Reiniected Ground Water Resulting from RCRA Corrective Artinn
For the purposes of RCRA corrective action, must all contaminated groundwater
that is withdrawn from an underlying drinking water aquifer be treated to BOAT
standards established in the land disposal restrictions (40 CFR Part 268) prior to
reinjection of the water into the same aquifer?
No. There are two provisions which potentially restrict or prohibit injection of
contaminated groundwater the Land Disposal Restrictions(LDRs) under
RCRA Section 3004 and the injection prohibited under RCRA Section 3020(a).
Groundwater which is not contaminated with "hazardous waste" is not
subject to either LDRs or Section 3020. Groundwater which contains
hazardous waste, but for which there is no LDR standards, is subject only to
Section 300.
RCRA Section 3020(a), prohibits the injection of a hazardous waste by
underground injection into or above an aquifer formation which contains an
underground source of drinking water. Section 3020(b) specifies that such
prohibition does not apply to contaminated groundwater which is reinjected
into the aquifer from which it was withdrawn if three criteria are met 1) it is
part of corrective action required under RCRA or CERCLA intended to clean-
up such contamination; 2) the contaminated groundwater is treated to
substantially reduce hazardous constituents prior to reinjection; and 3) the
proposed corrective action will be sufficient to protect human health and the
environment upon completion.
Groundwater which is contaminated by a hazardous waste for which there
are promulgated LDRs are also sub ject to the prohibition in Section 3020(a).
Moreover, EPA has interpreted the waiver provision under Section 3020(b) to1
also be available for these wastes. See OSWER Directive #9234.1-06. Under
this interpretation, the Section 3004 LDRs otherwise applicable to disposal of
contaminated groundwater have been superceded, where the waste is
disposed by underground injection, by the restrictions on such disposal
under Section 3020. Thus, if the implementing agency at a particular site
finds that the treatment of groundwater as part of the response action has
'substantially reduced" the hazardous consiruents and the response action is
"sufficient to protect human health and the environment," then the
groundwater may be reinjected even if it does not meet otherwise applicable
BDAT requirements.
Source: Dave Pagan, OSW (202)382-4497
Research: Karen R. Alex
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9554.1991(04)
RGRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 1991
must be used to obtain an extract of the waste.
2. SW-846 Test Methods Following that, as with LDR, any appropriate
method may be used to analyze the extract for
Are the test methods published in "Test Methods hazardous constituents. In determining the
for Evaluating Solid Waste, PhyzicallChemical characteristic of ignitability, the regulations
Methods." known as SW-846. required to show reference two specific test methods, the Pensky-
compiiance with 40 CFR Part 268 land disposal Martens (method 1010) and the Setaflash
restrictions iLD.R) in situations where the treatment (method 1020), either of which must be
standard is expressed as a concentration? Are SW- employed when testing. The characteristic of
346 methods required to show compliance with Part corrosivity also references a specific test
261, Subpan C hazardous waste characteristics? method. If the generator chooses to test the pH
of a given waste stream, method 9040 must be
Generally, the test methods found in SW-846 are used.
not required but are intended to serve as guidance.
EPA recommends these methods for evaluating Several other regulatory sections also require
solid waste and the Agency will use the the use of SW-846 test methods. For example,
recommended methods in enforcement situations. in completing a petition to delist a waste from a
There are a handful of exceptions to this rule where specific facility, SW-846 methods must be used
oecific test methods are required. in accordance with §260.22.
Compliance with LDR for wastes that have a
treatment standard expressed as constituent
concentrations in wastes (CCW. §268.43) can be
shown using any appropriate method. This section
does not specifically require the use of
SW-846 methods. If the waste treatment standard is
expressed as consumer.: concentrations in waste
extracts (CCWE. §268.41), then the Toxiciry
Characteristic Leaching Procedure (TCLP), which is
specifically referenced in §268.41 (a), must be
performed. Following that, however, any
appropriate method may be used to determine
concentrations of hazardous constituents in the
extract and to show compliance with LDR.
Similarly, in identifying Pan 261, Subpan C
characteristics. §262.11 provides that a generator
has the option of applying knowledge of the
hazardous characteristics of the waste in light of the
materials or the processes used, or testing the
material to determine whether or not it is a
hazardous waste. If the generator chooses to test, he
must use the method prescribed in Subpan C of 40
CFR Pan 261. The toxicity characteristic, for
*11 the TCLP. \vrncn
-------
9555 - LAND DISPOSAL
RESTRICTIONS
RESERVED
ATKl/l 104/68 kp
-------
OSWER Directive ^9555.00-C
OVERVIEW OF
THE EFFECT OF THE LAND DISPOSAL RESTRICTIONS
ON
RADIOACTIVE MIXED WASTE
The 1984 Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation
and Recovery Act (RCRA) restrict the land disposal of hazardous wastes, including mixed
waste. This overview outlines the major aspects of the land disposal restrictions as they
apply to mixed wastes. A more detailed analysis is found in the attached guidance
document.
WHAT IS MIXED WASTE?
Mixed waste is defined as a waste mixture that contains both radioactive materials subject to
the Atomic Energy Act (AEA) and a hazardous waste component regulated under RCRA.
The hazardous waste (i.e. the non-AEA material) can be either a listed hazardous waste in
Subpart D of 40 CFR 261 or a waste that exhibits any of the hazardous waste
characteristics identified in Subpart C of 40 CFR Pan 261.
WHAT MIXED WASTES ARE CURRENTLY SUBJECT TO
THE LAND DISPOSAL RESTRICTIONS (LDRS)?
The LDR regulations currently apply to all hazardous waste, including mixed waste, listed
or identified as of November 8,1984 under RCRA 3001. They also apply to several
hazardous wastes newly listed after November 8,1984 for which treatment standards have
been developed. Treatment standards for radioactive waste mixed with solvents (F001 -
F005), dioxins (F020 - F023 and F026 - F028) and California list wastes are currently
effective. EPA deferred issuing treatment standards for radioactive waste mixed with
scheduled hazardous waste until the promulgation of the last scheduled LDR rule on May
8,1990 (the so-called Third Third rule). After May 8,1990, all mixed wastes were
restricted from land disposal. However, for all mixed waste addressed in the Third Third
rule, EPA granted a two-year national capacity variance based on the lack of treatment
capacity. This variance delays the imposition of treatment requirements for land disposal
until May 8, 1992. (See 55 Efc 22660, June 1,1990.)
AFTER MIXED WASTES BECOME SUBJECT TO THE LDRS
CAN THEY BE STORED?
After the effective date, the HSWA amendments prohibit any storage of a land disposal
restricted waste, including mixed waste, except for the sole purpose of accumulating
sufficient quantities in a tank or container to facilitate proper recovery, treatment, or
disposal of that waste. (See 40 CFR 268.50, the storage prohibition.) There are,
however, a few instances where continued storage of LDR waste is allowed in tanks or
containers:
(1) Continued storage of wastes first placed in storage prior to the applicable LDR
date for that waste, until the waste is removed from storage.
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OSWER Directive =9555.00-'
Variance petitions should be sent to the U.S. EPA Administrator and the Office of Solid
Waste (see 40 CFR 268.44).
(For further discussion on the extensions and variances, see pages six through eight of the
attached document.)
HOW DOES STATE LAW APPLY TO MIXED WASTE?
Like other RCRA requirements related to mixed waste, the LDRs will apply only in States
where EPA ^ministers the RCRA program (unauthorized States) or in States that have
adopted mixed waste requirements as pan of their authorized State programs. In other
States, the LDRs will not apply to mixed waste until the State becomes authorized for
mixed waste. States may implement their own disposal restrictions as a matter of State law
if such actions are more stringent or broader in scope than the actions of Federal programs
(RCRA section 3009 and 40 CFR 271.1(1)). In Slates with more stringent or broader in
scope restrictions, State law would govern. Twenty-two States were RCRA authorized fen-
mixed waste as of September 1, 1990. For a list of States with mixed waste authorization
refer to pages twelve and thirteen of the attached document
FURTHER INFORMATION
I. See flow chart on the following page
2. Look at attached guidance document
3. Call your Regional EPA or State contact
-------
Defining Mixed Radioactive and Hazardous Waste for the
Purposes of Complying with the Land Disposal Restrictions (40 CFR Part 268)
Figure 1. Identification of Mixed
Is the waste
radioactive waste
that is regulated
under the Atomic
Energy Act?
It is not mixed waste, but it
may be RCRA Hazardous
Waste subject to the Land
Disposal Restrictions
^^A.
Do Non-AEA
Materials cause the
waste to exhibit any ofthe
RCRA Hazardous Wa
Characteristics?
Are Listed
Hazardous Wastes
contained in the
radioactive waste?
Y£S
1 r°
The watte it |
Go
Mixed m
Watte. M
It is not mixed waste, 1
nor is it a RCRA •
Hazardous Waste. •
*
to Figure 2.
NOTE
This flowchart is a simplified version of the Land
Disposal Restriction regulations of 40 CFR Part 268.
and should not be used in lieu of those regulations.
-------
Regulation of Mixed Wastes Under the RCRA Land Disposal Restrictions Program
Is there a
treatment standard
established for the RCRA
Hazardous Waste
portion of the
mixed waste?
Mixed waste can continue to be land
disposed without treatment until effective
date of treatment standard. This will
apply to the hazardous portion of mixed
waste identified or listed under RCRA
(3001 after November 8,1984.
Is the waste
subject to the two
year national
capacity variance for
scheduled thirds
mixed waste?
Do current available
treatment methods
meet the applicable
standards?
Figure 2. Treatment
Methods and Standards
under LDR.
Go to Figure 3.
While national capacity variance is
in effect LDR notification and certifies
lion requirements must still be met.
If wastes subject to the variance are
disposed of in either RCRA surface
impoundments or landfills, the units
must be in compliance with the
minimum technological requirements
(MTR)ofRCRA }3004(o).
Mixed waste can be land
disposed alter meeting
applicable treatment
standards.
Does the
treatment avail-
able render the mixed
waste and treatment
residue
non-hazardous?
Waste must be
disposed as RCRA
hazardous waste
NOTES:
• If the hazardous component of the mixed waste is listed, but not listed solely
because it exhibits one or more of the characteristics in Subpart C of Part 261,
then it remains a hazardous waste regardless of treatment.
R31 The mixed wngte must be disposed of at a mixed waste facility permitted
iSa under RCRA and licensed by NRC or Agreement State Authority.
When the treatment
standards* are met and if
the waste is not hazardous,
the waste may be disposed
of as radioactive waste.
•Note: Third Third treatment lUndardi
can go b«low charcrUrftUc l«v»li
-------
Regulation of Mixed Wastes Under the RCRA Land Disposal Restrictions Program (continued)
START
Current treatment
methods are unable to
satisfy applicable
treatment standards.
Therefore, depending
upon the situation, a
mixed waste handler
may pursue the following
three options:
SFTUATION
[2
Safe disposal
can be
demonstrated
in a particular
unit or units.
The treatment
standards are
unachievable for
the particular
waste.
QJ
The treatment
standard is
achievable but
not available.
Request a
"no migration*
variance.
Is
no migration
variance
granted?
( Figure 3. Options Under LDR: "|
I Variances and Extensions J
Disposal of mixed
waste without
treatment.
Request a
variance to
treatment
standards.*
There are two types of treat-
ment standard variances
that can be granted. They
are:
1) a site-specific variance; or
2) a national treatability
variance. For further
discussion on these
variances, sec pages 7-8.
JfES
u treatment
standard variance
granted?
s
^ Site-specific variance I
v permits disposal of
mixed waste with
alternative treatment.'
New treatment
standard permits
disposal of mixed
waste aAer treatment
to new level.
'Request a
case-by-case
extension for one
year from the
national effective
date (Renewable
once Tor an
additional year).
Is
caae-by-case
extension
granted?
Disposal of mixed
waste without
treatment until
effective date.
NOTES:
While the case-by-case and national capacity variances are in
effect, LDR notification and certification requirements must still
be met. Also, if wastes subject to the exemptions are disposed of
in either surface impoundments or landfills, the units must be in
compliance with the minimum technological requirement.
(MTR) of RCRA, Section 3004(o). 'rements
E3 The mixed waste must be disposed of at a mixed waste
facility permitted under RCRA and licensed hy NRC or
Agreement State Authority.
* NOTE: If the treatment standard is technology-baaed then
apply for an equivalent treatment method pursuant to 40
CFR J268 42(b). If the treatment standard is concentration-
based then pursue a treatment standard variance (40 CFR
$268.44).
-------
OSWER Directive *9555.00-
GUIDANCE
•
RESOURCE CONSERVATION AND RECOVERY ACT
LAND DISPOSAL RESTRICTIONS
EFFECTS
ON STORAGE AND DISPOSAL OF COMMERCIAL MIXED WASTE
Executive Summary
The 1984 Hazardous and Solid Waste Amendments (HSWA) of the Resource Conservation and
Recovery Act (RCRA), through the land disposal restrictions (LDR), prohibit disposal of
hazardous wastes that have not been pretreated to standards required by EPA, unless the wastes are
subject to an exemption. The HSWA amendments also prohibit any storage of a land disposal
restricted waste, except for the sole purpose of accumulating sufficient quantities to facilitate proper
recovery, treatment, or disposal of that waste.
The LDRs may impact the day-to-day management of mixed waste by generators. Mixed waste is
defined as a waste that satisfies the definition of radioactive waste subject to the Atomic Energy Act
and contains hazardous waste that is either listed as a hazardous waste in Subpart D of 40 CFR
Pan 261 or exhibits any of the hazardous waste characteristics identified in Subpart C of 40 CFR
Pan 261. The hazardous component of mixed waste is regulated under RCRA.
LDR regulations currently apply to all mixed radioactive and RCRA hazardous wastes. The first
group of mixed wastes subject to the LDR regulations were mixed radioactive and RCRA
hazardous wastes that contain spent solvents, dioxins, or California list wastes. The remaining
RCRA hazardous wastes were placed in three groups known as the First, Second, and Third
Thirds. EPA deferred issuing treatment standards for radioactive waste mixed with First Third and
Second Third hazardous wastes until the statutory effective date for the Third Third, May 8, 1990.
On May 8, 1990, all mixed wastes containing hazardous wastes listed or identified as of
November 8, 1984 were restricted from land disposal. However, mixed wastes that contain
scheduled third wastes were granted a two-year national capacity variance which is explained later
in the discussion. (Please note that mixed wastes granted a capacity variance are still considered
restricted since scheduled third mixed wastes disposed in RCRA surface impoundments or landfills
during the two-year period can only be placed in units that meet certain minimum technological
requirements. Also during the variance, these wastes are subject to 40 CFR 268.7 waste analysis
and recordkeeping requirements, and California list prohibitions if applicable.)
When the variance expires on May 8, 1992, ail mixed wastes will be prohibited from storage
except to accumulate sufficient quantities to facilitate proper recovery, treatment or disposal. (See
40 CFR 268.50, the storage prohibition.) There are, however, a few exceptions to the storage
prohibition as indicated later in the discussion. Mixed wastes containing spent solvents, dioxins or
California list wastes are currently subject to the storage prohibition.
EPA is aware that there is currently a shortage of treatment and disposal capacity for mixed waue
which may cause mixed waste handlers to be out of compliance with the storage prohibition.
Therefore, EPA plans to issue a policy statement regarding this matter in the fall of 1990.
-------
OSVER Directive =9555.00-
greater than or equal to 50 ppm, and both liquid and nonliquid hazardous wastes containing
designated concentration levels of halogenated organic compounds (HOCs).
(Most of these wastes are subsumed by other waste codes in the scheduled thirds (i.e.,
if a treatment standard has been promulgated for a California list waste in the scheduled
thirds then the more waste-specific treatment standard takes precedence over the California
list prohibition), and so the California list prohibitions were largely superseded on May 8,
1990, although the California list prohibitions may continue to apply during the period of a
national capacity variance for scheduled waste. For example, if a Third Third mixed waste
also meets the definition of a California list waste, it must be treated to prohibition levels
specified for the California list waste prior to land disposal, although it is subject to a two-
year national capacity variance.)
(3) At least one-third of all listed hazardous wastes-August 8,1988
(First Third).
(4) At least two-thirds of all listed hazardous waste-June 8,1989
(Second Third).
(5) Remaining wastes that were identified or listed as of
November 8, 1984--May 8,1990 (Third Third).
To find the complete list of all scheduled thirds wastes refer to 40 CFR 268, Subpart B-Schedule
for Land Disposal Prohibition and Establishment of Treatment Standards.
Newlv Identified and Listed Waste
EPA is required to make land disposal determinations for any hazardous waste identified or listed
after November 8, 1984 within six months of the effective date of identification or listing. Unlike
currently listed and characteristic wastes, the statute does not impose an automatic land disposal
prohibition if EPA misses a deadline for issuing treatment standards for any newly listed or
identified waste.
In the Third Third rule, EPA promulgated treatment standards for five wastes newly listed after
November 8, 1984. Four of these wastes are within the F002 and F005 spent solvent listing and
the other is F025 light ends and spent filters/aids and desiccants subcategory. (EPA also
promulgated treatment standards for several newly listed wastes in the Second Third rule.)
Examples of newly listed wastes where treatment standards have not been established are the
wastes newly promulgated under the TC rule. Mixed radioactive TC wastes are therefore currently
not subject to the LDRs.
Soft Hammer
HSWA established "soft hammer" provisions which are regulations for the management of wastes
scheduled in the First and Second Thirds for which EPA failed to promulgate treatment standards
by the scheduled deadlines (RCRA 3004(g)(6)). These did not include First and Second Third
wastes that EPA rescheduled to the Third Third such as mixed wastes. These provisions applied
only until May 8, 1990 when the "hard hammer" provisions described below superseded them.
Before May 8, 1990, soft hammer wastes could be land disposed in a landfill or surface
impoundment, only if:
(1) The generator determined that placement in a landfill or surface impoundment
was the only practical alternative to currently available treatment, and
-------
OSWER Directive 469555.00-'.
Once a treatment technology is determined to be demonstrated and available, EPA collects and
analyzes performance data from the specific treatment EPA then analyzes how each treatment
technology substantially diminishes the toxicity of the waste or substantially reduces the likelihood
of migration of hazardous constituents from the waste. Finally, EPA chooses the "best" treatment
technology based on performance data (e.g., the levels to which the technologies can treat specific
hazardous constituents in the waste), and sets a performance standard based on this specific
technology. Where constituent specific performance data cannot be obtained or is deemed
unnecessary, EPA considers specifying that a technology must be used for the waste.
It is important to note that, in some cases, the specific technologies identified as the basis for
BOAT are simply those technologies which EPA used to develop the waste-specific performance
standard. Any technology or combination of technologies not otherwise prohibited can be used to
achieve these standards. In other words, a specific treatment technology does not
have to be used unless the specific method of treatment is specified as the
treatment standard.
A treatment standard can be expressed as:
(1) Concentration Levels - any treatment technology may be used, as long as
hazardous constituents in the waste are treated to specific concentration levels
(2) Treatment Technologies - the standard specifies which technology must be used
to treat the waste before land disposal.
(3) Deactivation - the treatment standard for a number of subcategories of D001-D003
wastes which specifies the removal of the characteristic of ignitability, corrosivity or
reactivity. Recommended technologies that may be used to achieve deactivation are
referenced in Appendix VI of Part 268.
To date, EPA has set special treatment standards for four categories of mixed waste. They include:
(1) radioactive lead solids with a BOAT treatment standard of macrocapsulation;
(2) radioactive elemental mercury with a BDAT treatment standard of amalgamation;
(3) radioactive hydraulic oil contaminated with mercury and a BDAT standard of
incineration and,
(4) radioactive high level wastes generated during the reprocessing of fuel rods with
a BDAT standard of vitrification.
The remaining mixed wastes are subject to those promulgated treatment standards that apply to the
hazardous portion of the waste unless EPA publishes specific standards for mixed waste
treatability groups in the future, (For further discussion on mixed waste treatment standards see 55
ER 22532 and 22626, June 1, 1990.)
Effective Dates tor Land Disposal Restrictions
As soon as EPA sets a treatment standard, wastes subject to that standard are automatically
prohibited from land disposal, unless the wastes meet the treatment standard or are disposed in an
EPA approved no-migration unit (3004(h)(l)). EPA may through rulemaking revise a treatment
standard after the statutory date. If no treatment capacity is available, EPA may defer the effective
date of the standard, as explained below. Also, if wastes are generated that cannot be treated to the
-------
OSWER Directive ?9555.00-01
Variances From the Prohibition
•
No Migration Petition
In carrying out the directives of RCRA Sections 3004(d)(l), (e)(l), and (g)(5), EPA will consider
petitions to allow land disposal of untreated restricted waste, provided the petitioners demonstrate
"to a reasonable degree of certainty that there will be no migration of hazardous constituents from
the disposal unit or injection zone for as long as the wastes remain hazardous". For underground
injection wells, EPA has interpreted this to mean the concentration of hazardous constituents must
not exceed safe levels at the unit boundary. (EPA has not yet formally interpreted the statutory
standard with respect to surface disposal units, although regulations for non-migration petitions
currently exist at 40 CFR 268.6.) This demonstration can be made through site-verified modeling
and monitoring, and must include an evaluation of air, surface water, ground water and soil
exposure scenarios.
EPA expects that there will be relatively few cases in which this demonstration can be made,
however, EPA is proposing to grant a conditional variance for ten years to the Department of
Energy's (DOE) Waste Isolation Pilot Plant (WIPP) in Carlsbad, New Mexico. This is the first
such proposal to grant a no-migration petition to a unit other than an underground injection well. If
granted, the conditional variance will allow DOE to place transuranic or alpha-emitting mixed
radioactive waste in the WIPP (an underground salt formation) without regard to LDR treatment
standards for testing and experimentation purposes only.
Petitions for surface land disposal units are to be submitted to EPA Headquarters and petitions for
underground injection wells to the Regional Administrator. EPA draft interim final guidance on no
migration petitions for surface units is available for petition applicants.2 A notice of availability for
this document will be published around October 1990 concurrently with a proposed rule on no-
migration variances for surface units. A final version of the guidance is scheduled for release
around October 1991 concurrently with the final rule on no migration variances.
Variance From the Treatment Standard
EPA recognizes that wastes may exist that cannot be treated to the levels specified as the treatment
standard (or, in some cases, by the method specified). In such cases, a petition may be submitted
requesting a variance from the treatment standard. EPA envisioned that wastes may be subject to a
treatability variance in cases where the treatment standard for a particular waste cannot be met
because the waste does not fit into one of the BDAT treatability groups. A particular waste, such
as a mixed waste stream, may be significantly different from the wastes considered in establishing
treatability groups because the waste contains a more complex matrix, making it more difficult to
treat Variance petitions must demonstrate that the treatment standard established for a given waste
cannot be met This demonstration can be made by showing that attempts to treat the waste by
available technologies were not successful, or through appropriate analyses of the waste, which
demonstrate that the waste cannot be treated to the specified levels. Variances are not granted
based on a showing that adequate BDAT treatment capacity is unavailable.
Treatability variances can be divided into two categories; a national treatability variance and a site-
specific variance. A national treatability variance must be based on a demonstration that the
waste is significantly different (physically or chemically) from the waste or treatability group used
to set die treatment standard, such that the existing treatment standard cannot be met The national
treatability variance:
(1) Establishes a new treatability group and treatment standards for a waste and all
similar wastes.
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OSWER Directive ^9555.0
Dilution as Treatment
Under the LDRs, dilution is prohibited as treatment for both listed and characteristic wastes (see
40 CFR 268.3). However, exceptions to the prohibition were made for
(1) Certain characteristic wastes generated and managed in waste treatment systems
regulated by the Clean Water Act (See 40 CFR 268.3(b)). (Note that prohibited wastes
treated by inappropriate methods are considered impermissibly diluted.)
(2) Listed and characteristic wastes that are aggregated for legitimate treatment in
centralized treatment systems. (Note that centralized treatment of incompatible
wastestreams is not considered legitimate treatment and is viewed as impermissible
dilution.)
(3) Characteristic wastes that are disposed into hazardous or non-hazardous Qass I
injection wells regulated under the Safe Drinking Water Act and do not exhibit any
prohibited characteristic of hazardous waste at the point of injection.
(4) Prohibited non-toxic ignitable, reactive and corrosive wastes that are treated by dilution
to meet a treatment standard.
Storage Prohibition
In addition to prohibiting the land disposal of hazardous wastes, Congress also prohibited the
storage of any waste which is prohibited from land disposal unless "such storage is solely for the
purpose of the accumulation of such quantities of hazardous waste as are necessary to facilitate
proper recovery, treatment, or disposal" [RCRA Section 3004(j)]. The intent of Congress was to
ensure that long-term storage was not used as a means of avoiding a land disposal prohibition.
Currently a capacity shortage exists for treatment and disposal of mixed wastes that may cause
mixed waste handlers to be in violation of the storage prohibition. As a result, EPA plans to issue
a policy statement regarding this matter in the fall of 1990. (For further discussion on storage
issue see 55 FR 22673, June 1, 1990.)
The implementing regulations that address the prohibitions on storage of LDR waste are found in
40 CFR 268.50. This regulation essentially restates the statutory language.
Allowed Storage Times
It is apparent from the language in HSWA that Congress wished to prohibit extended storage of a
LDR waste in lieu of treatment. There are, however, a few instances that allow for the storage of
LDR waste in tanks or containers:
(1) Continued storage of wastes first placed in storage prior to the applicable effective date
of a LDR, until the wastes are removed from storage.
(2) Placement of wastes in storage after the applicable effective date, only if the untreated
wastes are stored solely for accumulation in the amounts necessary to facilitate proper
treatment, recovery or disposal.
(3) Storage of restricted wastes that are not prohibited from land disposal because they are
exempt from the land disposal restrictions by statute or EPA regulation, (see 54 £& 36968,
September 6,1989.)
-------
OSWER Directive *9555.00-C
compounds, and codified the statutory prohibitions on liquid corrosive wastes. Also on this date,
statutory prohibitions went into effect for liquid hazardous wastes containing certain metals and
free cyanides. The California list standards were set up as interim treatment standards until more
waste-specific standards could be established.
These two rules prohibit the land disposal of mixed waste that contains RCRA solvents or dioxins
or California list wastes unless treatment standards developed for the hazardous waste portion are
met In other words, a spent solvent, dioxin or California list mixed waste must be treated to those
concentrations or using the treatment method specified for its hazardous component prior to land
disposal. For example, if a non-liquid mixed waste is identified as hazardous under 40 CFR Pan
261 and it contains greater than 1000 mg/kg halogenated organic compounds (i.e., it is a California
list waste), it must be incinerated as specified in Section 268.42.
HSWA also required EPA to prepare a schedule for restricting the land disposal of all hazardous
waste listed or identified as of the date of the enactment of HSWA, excluding solvent- and dioxin-
containing wastes. On May 28, 1986, EPA published a schedule (51 FR 19300) for setting
treatment standards for the listed and identified hazardous waste. This schedule placed each of the
listed and identified wastes in one of the "Thirds".
EPA promulgated the final rule addressing the First Third wastes on August 17, 1988 (53 FR
31137). In the First Third rulemaking, EPA postponed establishing treatment standards for mixed
waste to the Third Third. (See 53 £R 31137 and amended Section 268.12.) The final rule
establishing treatment standards for the Second Third wastes was published on June 23,1989 (54
E& 26594). As was the case for mixed waste in the First Third, EPA postponed establishing
treatment standards for mixed waste covered under the Second Third until the Third Third.
The Third Third rule was published on June 1, 1990 (55 FR 22520). In the rule, EPA granted
mixed wastes containing scheduled third hazardous wastes a two-year national capacity variance.
EPA also established treatment standards for four categories of mixed waste outlined on page five.
After May 8,1992, the hazardous portion of all mixed waste must meet the appropriate treatment
standard for all applicable waste codes prior to disposal.
Effects of the LDR on the Storage and Disposal of Mixed Waste
Consistent with the intent of these regulations, the major impact of the land disposal restrictions on
mixed waste disposal is that, on May 8,1990, all waste must meet treatment standards prior to
land disposal unless a variance or extension to the effective date is granted. It may be difficult or
impossible to treat land disposal restricted mixed waste because a shortage of mixed waste
treatment capacity exists; therefore, variances may be necessary.
Restricted wastes that are exempt from (e.g., wastes granted a national capacity variance) or not
subject to a land disposal prohibition (e.g., wastes that meet specified treatment standards) are also
exempt from or not subject to the storage prohibition. Wastes that do not meet a specific treatment
standard and are not exempt from LDR by statute or regulation are prohibited from storage unless
such storage is solely for the purpose of accumulation of such quantities of hazardous waste as are
necessary to facilitate proper recovery, treatment, or disposal. The storage prohibition does not
affect those scheduled third mixed wastes that are disposed or stored prior to May 8, 1992.
Instead, the prohibition addresses storage of scheduled thud mixed wastes first placed into stocife
after May 8,1992 unless these wastes are granted an additional variance.
It is important to note that mixed waste is not the only category of waste where treatment capacity
is or may not be available on an LDR effective date. For example, no incinerators are curready
permitted to treat already-stored prohibited dioxin wastes.
1 1
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OSWER Directive 4»555.00-0
Summary
•
All mixed waste was subject to the RCRA land disposal restrictions on May 8, 1990 unless it was
disposed of in land based units prior to that date stored, without being removed from storage after
the effective date, is in a State that is authorized for RCRA's base program but has not yet received
authorization for mixed waste, or is a newly identified or listed waste after November 8, 1984 for
which treatment standards have not yet been promulgated. Currently, solvent- and dioxin-
containing mixed wastes and California list mixed wastes have to be treated to the treatment
standard for the hazardous portion of the waste. Treatment standards for radioactive mixed waste
that contains scheduled third wastes are not effective due to a two-year national capacity variance;
however, if these wastes are disposed of in RCRA surface impoundments or landfills the units
must meet minimum technological requirements. These wastes are also subject to 40 CFR 268.7
reporting and recordkeeping requirements and the California list prohibitions if applicable.
The first step in dealing with LDRs is to determine whether the waste is a RCRA hazardous waste.
Next, it must be established whether a treatment standard has been promulgated for the waste. If
so, it is a restricted waste and subject to certain recordkeeping requirements of 40 CFR 268.7.
Third, it must be determined whether the waste is destined for a prohibited form of land disposal
and whether the treatment standard is in effect for the waste. If so, then the waste is a prohibited
waste subject to all LDR requirements unless the generator or treater has obtained a variance or
extension from the LDRs. However, each mixed waste handler needs to identify the types and
quantities of mixed waste he or she currently generates and stores to evaluate the present and future
treatment capacity for the waste(s).
13
-------
U.S. EPA, "Case-By-Case Extensions: A Guidance Document to Support the
Land Disposal Restrictions"
U.S. EPA, "No Migration Variance to the Hazardous Waste Land Disposal
Prohibition: A Guidance Manual for Petitioners, Draft Interim Final",
March 1990, NTIS No. PB 90-204-736.
U.S. EPA, "Joint EPA/NRC Guidance on the Definition and Identification
of Commercial Mixed Low Level Radioactive and Hazardous Waste".
January 7, 1987. OSWER Directive Number 9432.00-2.
U.S. EPA, "Guidance on the Definition and Identification of Commercial
Mixed Waste Low-Level Radioactive and Hazardous Waste and Answers to
to Anticipated Questions", October 4, 1989.
15
-------
UNITED STATED ENVIRONMENTAL PROTECTION AGENCY
9555.1987(01!
October 2, 1987
Mr. H. V'avne Hibbitts, Director
rnvircnnental Protection Division
Decartment of Enercy
Oak Pidqe Operations
Post Office Pox P.
Oek Pidoe, Tennessee 37P?l
Pear Mr. Hibbitts?
I air re«nondino to your letter to Lee Thomas, dated "uoust lp,
1997, reouestlno an extension of the effective date of the storao*»
orohibition imposed by the land disposal restrictions. The solvent
wastes for which the extension is reouested are Generated at
sites in Tennessee, Ohio, and Kentucky. They pose an unusual
problem because they are co-contarinated with rarlionuclldes an"*
we are not aware of any disposal facilities that accent low-level
radioactive mixed wastes. An incinerator to discos* of .these
wastes is being built and a draft peririt has been issued *or
public comment. The renuested extension cover* the time ne
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OSVFR Directive «9555.00-
9555.1990(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
SEP 28 J990
OFFICE Of
SOLO WASTE AND EMERGENCY RESPONSE
TO ALL NRC LICENSEES:
SUBJECT: GUIDANCE ON THE LAND DISPOSAL RESTRICTIONS' EFFECTS ON
STORAGE AND DISPOSAL OF COMMERCIAL MIXED WASTE
The purpose of this letter is to announce the availability
of guidance on the land disposal restrictions (LDR) for NRC
licensees. The 1984 Hazardous and Solid Waste Amendments (HSWA)
to the Resource Conservation and Recovery Act directed EPA to
develop regulations restricting the land disposal of RCRA
hazardous wastes. The intent of the LDR provisions is to
minimize the potential risk to human health and the environment
by requiring treatment of wastes before land disposal. Since the
hazardous component(s) of radioactive mixed waste is RCRA
regulated, mixed radioactive waste handlers may now or soon will
manage waste subject to the RCRA land disposal restrictions.
The attached guidance is intended to provide a general
overview of the land disposal restriction regulations as well as
to provide information on areas of the regulations that may
particularly affect mixed waste handlers.
As identified in the guidance, the land disposal
restrictions have created new responsibilities for mixed waste
handlers. Therefore, it is important that mixed waste handlers
take the time to develop a good understanding of the land
disposal regulations. This guidance should not be used as a
substitute for the land disposal restriction regulations found at
40 CFR 268 or the Federal Register rules that contain the
promulgated LDR regulations. (See list of major rules at the end
of guidance). Instead it should be used as a general guidance to
familiarize the mixed waste handler with the land disposal
restriction regulations.
Sincerely,
SylviaJK. Lowrance, Director
Office' of Solid Waste
U.S. Environmental Protection
Agency
Prutttd on Rtcycltd Paptr
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Administrative Information
1. Specify the amount of time needed to comnlete al
capacity for the waste.
2. Provide information about the process oeneratino the
waste and about the physical/chemical properties of the
waste, including!
0 A description of the process oeneratino the waste.
0 The FPA Hazardous Waste Number.
0 A descriotlon of the composition and ohvsical form of
the waste stream.
0 The ouantity of waste Generated p»r vear.
0 The certification that the information is true, accurate,
and complete, sioned by an authorized representative.
Demonstrations
1. Submit capacity fiaures for the incinerator.
2. Submit caoacity figures for the maximum Quantity of wa«te
that would be subject to the extension.
3. Submit descriptions and PC*A permit numbers of the storaoe
facilities where the waste will be stored prior to ineinerafion.
Althouph we have initiated action on your reouest, we will
not be able to oropone our decision until we receive the renuest-d
information. You should be aware that a case-by-case extension
of the effective date is a rulemakino procedure, recruirino publi-
cation of the Aoency'a tentative decision to allow the public an
opportunity to comment on your renuest. *fter considering th^lr
comments, the final decision must also be published in the Federal
Pegister.
We will wake every effort to process your application in a
timely manner. In the interim, if you have further rue^tions or
problems, feel free to contact Phonda Craio at (?0?)
SincereIv,
uarcia tfi13 iam*
Director
Office of «elid
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Waste Minimization
ATKl/1112/34sm
-------
9560-
MISCELLANEOUS
ATKl/l 104/69 kp
-------
9560. 1985(01 :•
HP 1 J 885
MEMORANDUM
SUBJECT: Waste Minimization* Permit Certification £
and Joint Permitting ^
FROM: Bruce R. Weddle, Director '-
Permits and State Programs Division (WB-563) J
TOi Hazardous Waste Division Directors T
Regions I-X %
ff
B
The purpose of this memorandum is to provide guidance to £
permit writers for incorporating the $3005(h) waste minimiza- <*
tion certification requirement of the Hazardous and Solid u>
Waste Amendments of 1984 (HSWA or the Amendments) into RCRA £
permits. It is also intended to clarify joint permitting i
of this requirement. Waste minimization has a unique effect N>
on the joint permitting process which was described in RCRA £
Statutory Interpretation (RSI) #5 dated July 1, 1985, because
it does not mandate any technical efforts or substantive ^
judgments. ' ^
e
Permit Certification if
——•—"—--———"—" • o
RCRA S30O5(h), a« UMBd*<9 by HSWA J224, require* that all •.
RCRA permits for on-site treatment, storage or disposal issued
after September 1, 1985, include a condition requiring the i£
permittee to certify in the facility operating record thati M
o The generator of the hazardous waste has a program in _
place to reduce the volume or quantity and^ozicity of =
such waste to the degree determined by the generator e
to be economically practicable? and £
o The proposed method of treatment, storage or disposal S
is that practicable method currently available to the
generator which minimizes the present and future
threat to human health and the environment*
The legislative history of these provisions clearly
indicates that HSWA waste minimization requirements are
not meant to impose a significant new burden to gene-
rators, nor are they meant to form the basis for specific
waste minimization standards or regulations at this
time. Bather, Congress intended that the substantive
-------
- 2 -
judgments as to what is 'economically practicable" and what is
the most "practicable method currently available* are to be
made by the generator in light of his or hex own particular
circumstances. . , . .
In addition, RCRA |8002 requires that the Administrator
submit a Report to Congress by October 1, 1986, on the feasi-
bility of establishing standards or taking other actions to
ensure that hazardous waste 'generators are taking steps to
minimize the waste they produce.__._ , .
The new waste minimization permit certification
requirements are intended to be an interim measure pending
delivery of the Report to Congress in October, 1986. The
conclusions reached in the Report will in large part
determine whether specific, substantive waste minimization
standards or regulations are necessary or feasible.
Permit Writers' Guidance
The Final Codification Rule published in the Federal
Register on July 15, 1985, added a new provision to }264.73(b)
requiring the permittee to record at least annually a waste
minimization certification statement in the written operating
record kept .at the facility* Pursuant to this requirement,
permit writers should incorporate into any on-site treatment,
storage or disposal permit issued after September 1, 1985, a
condition requiring that a waste minimization certification
statement be included in the facility operating record*
We reconaend incorporating this condition into the permit
by adding to Module XX(L)(1) (General Facility Conditions,
Recordkeeping and Reporting, Operating Record) the language
"and <9 Con-site only])". The revised model permit condition
will read as follows t.
NOODLE XX—CZHEKAL FACILITY COHDXTXOB6
e e e e • ' • •
L. Reeordkeepinq and Reporting
1. Operating Record. The Permittee shall maintain a written
operating record* at the facility in accordance with
40 CFR 264.73U), (b)(l), (2), (3), (4), (5), (6), (7 [off-
site only]), (8), and (9.Con-site only]).
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- 3 -
Joint Perad.tt.ing
The joint permitting guidance (*SI #5) states that where
facilities are affected by HSWA, joint Federal-State permits
will be issued for those provisions for which the State has
not yet been authorised. This implies that there are some
facilities that will not be affected by HSWA at all. However,
the waste »ini»iration certification is required for all on-
site facilities even where no other provisions of the Amendments.
*PP^y* This leads to the question of how the waste minimization
requirement will be addressed in permits.
The guidance states that in those cases where permits
are not issued simultaneously (see RSI 15 for those exceptions),
EPA sust issue a public notice when it determines the appli-
cability of HSWA. The State-issued permit will become a full
RCRA permit only after EPA issues a permit addressing the
waste minimisation requirement and any other applicable HSWA
requ irements.
In all other permitting situations, EPA and the State
will issue permits simultaneously. However, when it is
clearly determined that $3005(h) is the only applicable HSWA
requirement, and the State has the authority to impose permit
conditions requiring this certification, EPA does not intend
to issue a separate Federal permit (or offer separate public
notice)*
The procedure for implementing this approach is for EPA
to write a generic letter to the State on how to proceed
whenever this situation occurs. Specifically, the letter
must explain that the State has authority to address $3005(h)
and that the State will use its authority to include this
requirement* This letter will apply to waste minimization only;
where other HSWA requirements are applicable to a particular
facility a joint Federal-State permit must still be issued.
Finally* the letter must explain that EPA always has the
authority to insert additional permit conditions as necessary
to protect human health and the environment* Where information <
becomes available to EPA which demonstrates the need for such . •
additional permit conditions, EPA will exercise that authority.*
The State should place a copy of EPA*a generic letter in the.
public docket of each facility permit for which this approach is
used. In this way* the public will have access to Information
about EPA's decision. Following these procedures will allow for
States to issue BCBA permits by incorporating the waste
minimization requirements without the need for a separate Federal
permit*
-------
P«rmit« brmnah »t
oci
I-X
-------
5SWFR Directive «v555.X'
9555.1990(01)
k
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SEP 28 090
OFFICE OF
SOUO WASTE AND EMERGENCY RESPONSE
TO ALL NRC LICENSEES:
SUBJECT: GUIDANCE ON THE LAND DISPOSAL RESTRICTIONS' EFFECTS ON
STORAGE AND DISPOSAL OF COMMERCIAL MIXED WASTE
The purpose of this letter is to announce the availability
of guidance on the land disposal restrictions (LDR) for NRC
licensees. The 1984 Hazardous and Solid Waste Amendments (HSWA)
to the Resource Conservation and Recovery Act directed EPA to
develop regulations restricting the land disposal of RCRA
hazardous wastes. The intent of the LDR provisions is to
minimize the potential risk to human health and the environment
by requiring treatment of wastes before land disposal. Since the
hazardous component(s) of radioactive mixed waste is RCRA
regulated, mixed radioactive waste handlers may now or soon will
manage waste subject to the RCRA land disposal restrictions.
The attached guidance is intended to provide a general
overview of the land disposal restriction regulations as well as
to provide information on areas of the regulations that may
particularly affect mixed waste handlers.
As identified in the guidance, the land disposal
restrictions have created new responsibilities for mixed waste
handlers. Therefore, it is important that mixed waste handlers
take the time to develop a good understanding of the land
disposal regulations. This guidance should not be used as a
substitute for the land disposal restriction regulations found at
40 CFR 268 or the Federal Register rules that contain the
promulgated LDR regulations. (See list of major rules at the end
of guidance). Instead it should be used as a general guidance to
familiarize the mixed waste handler with the land disposal
restriction regulations.
Sincerely,
0
SylviaTK. Lowrance, Director
Office" of Solid Waste
U.S. Environmental Protection
Agency
riMtd on Rteyclid Paptr
-------
Administrative Information
1. Specify the amount of time needed to complete al
capacity for the waste.
2. Provide information about the oroces? oeneratino the
waste and about the physical/chemical properties of the
waste, including;
0 A description of the process oeneratino the waste.
• The FPA Hazardous Waste Number.
0 A description of the composition and physical form of
the waste stream.
• The Quantity of waste Generated o*»r vear.
0 The certification that the information is true, accurate,
and complete, sioned by an authorized renre«entative.
Demonstrations
1. Submit caoacity fipures for the incinerator.
2. Submit capacity figures for the maximum ouantity of wa«te
that would be subject to the extension.
3. Submit descriptions and PC^A permit numbers of the storaoe
facilities where the waste will be stored prior to incin«»r«Mon.
Although we have initiated action on your reouest, we will
not be able to oropone our decision until we receive the rerwest^rt
information. You should he aware that a case-by-case extension
of the effective date is a rulemaking procedure, recruirino publi-
cation of the Aoency's tentative decision to allow the public an
opportunity to comment on your renuest. After considering their
comments, the final decision must also be published in the Federal
Pegister.
We will make every effort to process your application in a
timely manner. In the interin, if you have further ouewtions or
problems, feel free to contact Phonda Craio at (?02)
Sincerely,
uarcia Filliamn
Director
office of Solid w««te
-------
Subtitle D
ATKl/1112/35sm
-------
9571 - MINING
WASTES
Subtitle D
ATKl/l 10V7 Ikp
-------
9571.1935(01)
,/
Mr. Donald A. Robbins
Departnent of Environmental Sciences
ASARCO Incorporated
3422 South 700 West
Salt Lake City, Utah 94119-4191
Dear Mr. Robbins:
Thank you for your recent letter and sungestions on accroaches
to the difficult problem of requlatinq the nanaqement of those
mining wastes which pose a hazard if improperly manaqed. We share
your concerns both with respect to the suitability of usinq the
Toxicity Characteristic Leaching Procedure (TCLP) to identify
which mining wastes warrant RCRA regulatory control and the need
for tailored management standards for hazardous mininq-wastes.
The TCLP was developed primarily to simulate the leachabilitv
of an industrial waste co-disposed with sanitary refuse or other
putrescible materials. Mining wastes, because of the relatively
large volumes of material involved, are not likely to encounter
such disposal conditions even if not regulated. However, althouah
mining wastes are generally not acidic, many mininq wastes contain
pyritic minerals which generate an acidic leachate unon exposure
to air. Thus, the acidic environment modeled by the EP/TCLP may
be appropriate for mining wastes even if the model environment
used to develop the TCLP is not. In fact, the leachate generated
by mining wastes can often be more acidic than the refuse derived
leachate. Thus, a different leach procedure (which, for some
mining wastes, could be more aggressive than the TCLP) mirjht he
appropriate.
No decision has yet been made as to what type of test
procedure to use in identifying which mining wastes require
regulation under Subtitle C of RCRA. A decision tree process is
one approach that is being considered. Any such decision tree
will require a method for determining the waste's acid generation
potential. While we do not presently have anv work ongoing to
develop test methods for determining a waste's acid generating
potential, we welcome your thoughts on this problem. We would
also be willing to work with you and other interested parties in
a cooperative effort to develop such a test.
-------
Aa to.your request for tailored nanaqenent standards, we
aaree with the need to develop tailored "anaqonent standards
for nininq wastes before Tubjectinq the-n to Subtitle C control
will indicate sane in the 19B6 Deport to Conqress.
I *r»preciate a>SA3CO'3 offer of assistance in develoninq
protocols to assess the leaching potential of nlninq wastes.
I would suqqest that you contact Alan Corson or David Friedman
(202/332-4770) to follow up on developing a cooperative
proqran in this area.
Sincerely yours,
Garcia S. U
Director
Office of Solid r?aste
WH-562B/DFRIEDMAN/raa/rm SB 248/382-4770/10-1-85
Disk MAi7:20 OSWER-07135
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33/1.1*86(04]
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
JULY 86
4. Mining Waste, K064, and §3004(x)
EPA published a prooosed rule in the October 2, 1985 Federal Register
(50 FR 40292). The proposed rule would reinterpret the minim waste
exclusion at 40 CFR 261.4(b)(7) as it applies to processing wastes.
Only large volume, relatively low toxicity processing wastes would
be excluded, specifically phosogypsum, bauxite refining muds,
primary metal smelting slags, and slag from elemental phosphorus
reduction. The reinterpretation also proposed to relist six smelting
wastes previously listed as hazardous. One of the six smelting
wastes prooosed to be relisted is K064, acid plant blowdown slurry/
sludge resulting form the thickening of blowdown slurry form orimarv
copper production.
If EPA finalizes the listing of K064, can EPA modify existing Subtitle
C requirements under Section 3004(x) of RCRA for units handling K064?
Section 3004(x) authoriizes EPA to modify existing Subtitle C require-
TTents to take into account the special characteristics of mininq
wastes, the practical difficulties associated with implementation of
such retirements, and site-specific characteristics.
Only large volume, relatively low toxicity processing wastes would
be excluded, specifically, phosphoqypsum, bauxite refining muds,
orimarv metal smelting slags, and slag from elemental phosphorus
reduction. The reinterpretation also proposed to relist six smell inn
wastes previously listed as hazardous. One of the six smeltina
wastes proposed to be relisted is K064, acid plant blowdown slurry/
sludge resulting from the thickening of blowdown slurry from primary
copper production.
If EPA finalizes the listing of K064, can EPA modify existing Subtitle
C requirements under §3004(x) of RCRA for units handling K064? Section
3004(x) authorizes EPA to modify existing Subtitle C requirements to
take into account the special characteristics of mininq wastes, the
practical difficulties associated with implementation of such require-
ments, and site-specific characteristics.
Mo; S3004(x) authority would not apply to K064. Section 3004(x)
authority only applies to wastes temporarily excluded under $3001(b)
(3)(A)(ii) (the "Bevill Amendment"), i.e., solid waste from
the extraction, beneficiation, and processing of ores and
minerals, that subsequently become subject to Subtitle C of
RCRA based on the results of a §8002 study. If finalized, the
proposed reinterpretation would narrow the scone of the "Bevill
Amendment." Wastes that are no longer encompassed by the
exclusion, including this primary copper smelting waste (if
listed in the final rule), would not be mining wastes (solid
wastes from the extraction, beneficiation, and processing of
ores and minerals). Therefore §3004(x) would not apply.
Source: Meg Silver (202) 382-7706
Research: Kevin Weiss
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9571.1987(01)
OCT b
MEMORANDUM
SUBJECT: Decision Deadlines for Retrofitting Waiver Requests
FROM: Marcia B. Williams, Director /S/
Offics of Solid Waste
TO: Robert Greaves , Acting Chief
Waste Management Branch/ Region III
In your memorandum of April 20, 1987, you raised two issues
concerning the applicability of RCKA section 3004(u) te coal
combustion fly ash units, and on decision deadlines fop ,r*t»oflt^
ting waiver requests. This memorandum provides guidenoc OB retrofit
waiver requests deadlines; we expect resolution of th* ^pplieabiMty
of 3004(u) is»ue within the neat few weeks, and will pKo»Ad« \
separata guidance on that issue.
The issue raised in your memorandum concerns the
for making a decision on inter in status surface impo«ada?nt
retrofitting waiver requests filed under section 300S( J ) (13) .
EPA no longer needs to address this issue) for the SCN Corp.
facility you describe because it has been determined that the
wastes SCM manages in its impoundment are "mining wastes* excluded
from Subtitle C under the "Bevill* amendment, section 3001(b)(3).
we are responding, however, in case other facilities apply for
waivers under section 300S(j)(13). While procedural deadlines in
section 3005(j)(5) address waiver requests filed in accord t nee with
section 3005(j)(2), (3), and (4), no reference is made to requests
filed under section 3005(j)(13). However, as stated on page 1-5 of
the July 1986 Interim Status Surface Impoundment Retrofitting Vari-
ances Guidance Document, EPA believes it is appropriate to establish
deadlines am* procedures for (j)(13), including public notice and
comment proSjSdures, equivalent to the other exemptions. The reason
for this poJBteT is that the November 7, 1988 deadline for retrofit-
ting applies to those facilities seeking a section 300S(j)(13)
waiver as well as to those seeking the other waivers. Therefore,
as a matter of policy, you should make a final decision on any
request for a variance under section 3005(j)(13) by November 7,
1987, in order to provide the facility with adequate time to
retrofit, if the waiver request is denied. However, since the
November 7, 1987 date is not required as a statutory condition
-------
for waivers under ••ction 3005(J)(13), you do have soae fltxiMl
ity not provided under section* 3005n
3005(j)(13) Mvmt by Bov««b«r 7, 1987. due to conpeliing
reatona («.9ti til* n»*
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1989(01)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
JANUARY 89
1. Ore and Mineral Extraction, Beneficiation and Processing Exclusion
Applicability
The owner/operator of a taconite ore mining and processing facility uses several
different processes to increase the taconite ore's concentration. These processes
include a grinding and magnetic separation process that constitutes benefication.
This beneficiation process incorporates the use of Whirmore grease for
mechanical lubrication. The Whitmore grease is removed once every ten years
and is sent for disposal. Is this grease, which exhibits the characteristic of EP
toxicity, exempt from being a hazardous waste pursuant to 40 CFR Section 261 4
In the November 19, 1980 Federal Register (45 FR 76620), the EPA
promulgated regulations excluding solid waste from the extraction,
beneficiation, and processing of ores and minerals from the definition of
hazardous waste. The preamble to this Federal Register stated this exclusion
applied to wastes produced in, and unique to the exploration, mining,
milling, smelting and refining of ores and minerals. The exclusion did not
apply to solid wastes, such as spent solvents, pesticide wastes, and di',:aided
commercial chemical products, that were not unique to the mining and
processing operations (45 FR 76619).
Since 1960, common mining and processing operations have included the
long-term application of Whitmore grease to heavily used machinery, gears
and other difficult to access equipment. However, Whitmore grease is not
limited to the mining industry, but can be used on any industrial equipment
where short term grease applications are limited by difficult access and heavy
use. Therefore, because the Whitmore grease is not unique to mining
operations, it is not excluded pursuant to 40 CFR Section 261.4 (b)(7). The
grease that can no longer be used for its intended purpose and that is going for
disposal would be a solid waste pursuant to 40 CFR Section 261.1 (c)(l) and 40
CFR Section 261.2, respectively [see January 4, 1985 Federal Register (50 FR
663)]. This solid waste will be a hazardous waste if it meets a listing under 40
CFR Part 261 Subpart D or exhibits any characteristic under 40 CFR Part 261
Subpart C.
Source: Bob Hall (202) 475-8814
Research: Jace Cuje (202) 382-3000
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9571.1989(02}
RCRA/SUPERFUND HOTLINE SUMMARY
OCTOBER 1989
5. Notification Requirements for New Wastes Not Covered by the
Bevill Exclusion
In the September 1,1989 Federal Register (54 £R 36592), EPA significantly
modified the Bevill Exclusion. (40 CFR 261.4(b)(7)) This final rule narrows
the scope of the exclusion by identifying, under Section 3001 of RCRA,
additional substances as hazardous wastes subject to Subtitle C. Since
these regulations are not being imposed pursuant to HSWA, they will not
be effective in authorized States until the States revise their programs to
adopt equivalent requirements. In an authorized State, when must a
generator or transporter of such substances or an owner/operator of a
facility which treats, stores, or disposes of such substances notify under
Section 3010 of RCRA?
Under Section 3010(a) of RCRA, "not later than ninety days after
promulgation of regulations under Section 3001 identifying any
substance as hazardous waste subject to this subtitle, any person
generating or transporting such substance or owning or operating a
facility for treatment, storage, or disposal of such substances shall
notify the implementing agency of their activity." However, also
under this section, EPA was given the option of waiving the
notification requirements following the revision of any regulation
promulgated under Section 3001, at the discretion of the
Administrator.
Since the final rule published in the September 1, 1989, Federal
Register (54 FR 36592) revises regulations promulgated pursuant to
Section 3001, the Administrator may use the provided waiver option.
The Administrator did, in fact, use the option (see 54 FR 36592) as it
was intended; persons who have previously notified of their
hazardous waste activity and have received an EPA I.D. number need
not re-notify. All other persons, regardless of the authorization status
of their State, who generate, transport, treat, store, or dispose of any
substance now subject to Subtitle C as a result of this final rule, must
notify under section 3010; that is, not later than November 30, 1989
(ninety days after the promulgation of the final rule).
Source: Dan Derkics (202) 382-3608
Research: Kevin Dunn
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9571.1990(01
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MAP I 5 1990
Mr. Richard Davis
Brush Wellman, Inc.
1200 Hanna Building
Cleveland, Ohio 44115
Dear Mr. Davis:
On November 30, 1989, at Brush Wellman's request,
representatives of EPA's Office of Solid Waste (OSW) net with
representatives of Brush Wellman at EPA Headquarters. At this
meeting, Brush Wellman requested clarification of the Bevill
status of each of the three wastes addressed in the September 1
final rule, and provided additional information on the nature of
the beryllium production operations conducted at the Delta, Utah
plant. (Meeting minutes and a copy of Brush Wellman's written
statement may be found in the docket for the September 1, 1989,
final rule.)
At the November, 1989 meeting Brush Wellman requested that
beryl plant discard and raffinate discard (processing raffinate)
be reclassified as beneficiation wastes, and provided several
statements supporting this position. First Brush Wellman
reasoned that, in an operational sense, the beryl ore and
bertrandite ore circuits produce identical intermediate products
and very similar waste streams; to subject them to different
regulatory requirements would therefore be arbitrary and
unreasonable. Second, the key production steps that distinguish
the beryl and bertrandite circuits (melting and fritting) involve
only physical changes to the ore; nothing is added to or removed
from the beneficiated ore during these operations, and they do
not generate any waste streams (except for APC dusts). Indeed,
it was stated that the purpose of the melting-fritting sequence
is merely to change the crystalline structure of the mineral to
make it more amenable to the leaching (beneficiation) that
follows, rather than to purify or refine the mineral value.
Finally, Brush Wellman contended that the two wastes that were
removed from the Bevill exclusion by the September 1 final rule
had been explicitly studied in the Report to Congress on
extraction and beneficiation wastes, and hence were de facto
beneficiation wastes; i.e., their regulatory status had already
been established.
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- 2 -
In the September 1, 1989, final rule, EPA established the
final definitions and criteria that would be used to determine
which mineral processing wastes are eligible for the Bevill
exclusion, and applied these criteria to all wastes for which
existing information was adequate to make Bevill exemption
status determinations. Based on public comments and additional
analyses found in the dockets, the final definitions of mineral
beneficiation and processing differed markedly from those
employed in the November, 1988 and April, 1989 proposed rules.
One of the key distinctions between the two types of mineral
industry operations, as discussed in the preamble to the
September 1, 1989, final rule, is that beneficiation operations,
including those using heat, may alter the physical/chemical
characteristics of or remove water and/or carbon dioxide from the
ore or mineral but do not change its basic physical structure,
while processing wastes are generally not earthen in character
and are physically dissimilar to the ore or mineral (or
beneficiated ore or mineral) that entered the processing
operation.
Among the industry sectors (and associated wastes) that were
addressed in the September 1 final rule was the primary beryllium
industry, which consists solely of the Brush Wellman facility
near Delta, Utah. In conducting its evaluation, EPA used
information submitted by Brush Wellman in the form of public
comments on notices of proposed rulemaking addressing the Bevill
exclusion and in your response to the 1989 National Survey of
Solid Wastes from Mineral Processing Facilities. The process
flow diagram (enclosed) provided by Brush Wellman with its survey
response indicates a dual beryllium production circuit, in one
circuit beryl ore is used and in the other circuit bertrandite
ore is used; each mineral undergoes a different series of steps
that yield a "pregnant leach solution" that is combined and
subjected to further purification steps.
In deciding whether the solid wastes generated by this plant
were eligible for the Bevill exclusion, EPA evaluated each of the
production steps in order to determine whether and where mineral
beneficiation operations end and mineral processing operations
begin at the Brush Wellman facility. In the case of the
bertrandite ore circuit, the facility's flow diagram indicates
that essentially all of the operations from initial crushing and
grinding through solvent extraction and stripping could be
considered beneficiation operations, according to the Agency's
final definition of beneficiation. In the beryl ore circuit,
however, EPA's interpretation of the production steps employed
was that the ore undergoes a mineral processing operation
(melting) relatively early in the production sequence; hence, all
steps following this initial processing step are, by definition,
processing steps. Moreover, because the beryl leach solution
arising from the beryl ore circuit is combined with that from the
bertrandite circuit, all subsequent steps in the operation would
-------
be defined as processing operations, and all wastes generated
from these steps would be defined as processing wastes, and hence
subject to the high volume criteria.
After review and analysis of the new information provided by
Brush Wellman in the November 30, 1989 meeting, EPA now concludes
that all operations associated with the beryl and bertrandite ore
circuits upstream of the iron hydrolysis step are beneficiation
operations. As a consequence, the waste streams that are
generated by these two production circuits, including beryl plant
discard and processing raffinate, are mineral beneficiation
wastes rather than processing wastes. Wastes generated
downstream of the iron hydrolysis step, such as sludge leaching
slurry are considered low volume mineral processing wastes, and
are removed from the Bevill exclusion as of the effective date of
the September 1, 1989, final rule.
EPA stresses that this decision reflects the application of
the same criteria that were enunciated in the September 1 final
rule. The Agency's change in position on the status of the
wastes generated at the Delta, Utah facility is due solely to
receipt of detailed information on the operations of that
specific facility and was not available previously. This
information suggests that EPA's previous determination was in
error, in that the Agency's assumption (based on the response to
the National Survey) was that the melting step resembled smelting
or similar pyrometallurgical (processing) techniques, rather than
serving as a means of recrystallizing the beryl ore
(beneficiation) prior to leaching.
If you have any further questions concerning the Bevill
status of these wastes, please contact Dan Derkics or Bob Hall of
my staff at 202-382-3608 or 202-475-8814, respectively.
Sincerely,
Robert Tonetti
Acting Deputy Director
Waste Management Division
Enclosure
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9571.1990(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
APR 9 1990
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Erast Borissoff
Executive Director
American Coal Ash Association, Inc.
1000 16th Street, NW Suite 507
Washington, DC 20036
Dear Mr. Borissoff:
This letter is written to follow up on the August 2, 1989,
meeting between you and other representatives of the American
Coal Ash Association (ACAA) and representatives of the Office of
Solid Waste concerning the status of coal ash as a "solid waste"
(and your June 23, 1989, letter to the EPA administrator). I
apologize for the delay in getting this letter to you and hope
the delay has not inconvenienced you. In the meeting, you '
presented substantial evidence of the beneficial uses for coal
ash as alternatives to its disposal. We applaud your efforts
toward reducing the amount of wastes being land disposed.
As you know, EPA has been amenable to supporting coal ash's
beneficial use, as evidenced by publication of the 1983 Guideline
for Federal Procurement of Cement and Concrete Containing Fly
Ash, and the use of fly ash as a stabilizing medium in setting
treatment standards that certain hazardous wastes must meet prior
to land disposal.
While EPA is very interested in furthering such beneficial
recycling efforts, we do not believe that the designation of coal
ash as a "solid waste" is the most important issue; the issue, as
we see it, concerns ensuring that recycling activities are
conducted using environmentally sound practices. As was stated
in the meeting, coal ash is defined as a solid waste in the
Resource Conservation and Recovery Act (RCRA); consequently, t:--
change you request is statutory rather than regulatory. EPA's
authority is limited to regulatory changes.
You also request that il?A "preclude States and political
subdivisions from establishing or continuing in effect any
requirement applicable to beneficial use of coal ash which would
be inconsistent with any rule prescribed by the Administrator
applicable to such beneficial use." This is beyond EPA's
authority. For example, Federal regulations p.-mulgated under
Subtitle C of RC.-A (i.e., hazardous waste regulations) are the
minimum hazardous waste management requirements to p~ ttect human
a* RicycUJ P.
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- 2 -
health and the environment. States that are authorized to
implement RCRA Subtitle C programs are able to, and sometimes do
exceed Federal requirements in terms of stringency. Even in
nonauthorized States, State regulations governing hazardous
wastes must be complied with in that State. The regulation of
Subtitle 0 wastes (e.g., coal ash) is primarily managed by State
and local governments. Although EPA can encourage States to
promulgate regulations that reflect the growing need to encourage
beneficial recycling of solid wastes it cannot require a State
regulatory Agency to be less stringent.
As RCRA reauthorization is being considered in Congress,
waste minimization and recycling are already a strong focus.
Should you have information you wish to share with the Congress
on the environmentally sound recycling of coal ash and its
beneficial uses, the appropriate time to do so is now. I thank
you for your interest in the beneficial use of coal ash and
encourage your continued marketing of such uses as an alternative
to disposal. If you have further questions or need additional
information, you should contact Mr. Pat Pesacreta, of my staff,
at (202) 382-7915.
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Haste
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AFR 6I99C 9571.1990.03
Mr. Richard McQuisten
Project Manager
Department of Energy
P.O. Box 1189
Laramie, Wyoming 82070
Dear Mr. McQuisten:
Thank you for your letter on March 12, 1990, concerning
environmental regulations applicable to the use of retorted oil
shale and coal fly ash. I have been asked to reply.
On March 8, 1988, the Environmental Protection Agency
(EPA) submitted to Congress a report entitled Wastes from the
Com-bustion of Coal by Electric Utility Power Plants. This
report presented the results of studies carried out pursuant to
Section 8002(n) of the Resource Conservation and Recovery Act
of 1976 (RCRA), as amended (42 U.S.C. § 6982(n)). This report
is available from the U.S. Department of Commerce, National
Technical Information Service (NTIS), 5285 Port Royal Road,
Springfield, Virginia, 22161. Their phone number is (703)487-
4650. The report number is PB88-177977 and the Appendices
number is PB88-177985.
This report indicates that EPA has concluded that coal
combustion waste streams generally do not exhibit hazardous
charactistics under curent RCRA regulations, and that EPA does
not intend to regulate under RCRA Subtitle C fly ash, bottom ash,
boiler slag and flue gas desulfurization wastes. These wastes
are currently subject to RCRA Subtitle D, which pertains to solid
(non-hazardous) wastes, and which is administered by state Solid
Waste regulatory agencies. A list of State Solid Waste Directors
can be provided by the Association of State and Territorial Solid
Waste Management Officials. The Association may be contacted by
phone at (202)624-5828.
In 1985, EPA issued a Report to Congress entitled Wastes
from the Extraction and Beneficiation of Metallic Ore, Phosphate
Rock, Asbestos, Overburden from Uranium Mining and Oil Shale.
-------
This report is also available from NTIS (report number PB88-
162631). On July 3, 1986, EPA issued a Regulatory Determination
that stated that solid wastes from the extraction and
benef iciation of ores and minerals were best regulated under RCRA
Subtitle D, not under Subtitle C. (See 51 FR 24496, copy
enclosed.) EPA staff is currently developing a draft Subtitle D
regulatory approach known as the "strawman" (copy enclosed) which
if finalized as a rule, would place minimum standards on oil
shale extraction and benef iciation wastes. At present, however,
EPA does not have any RCRA regulations specific to oil shale
retort wastes until EPA finalizes, in early 1993, its Subtitle D
rule on extraction and benef iciation wastes.
It should be noted that the U.S. Synthetic Fuels
Corporation, an office in the Treasury Department, currently
provides financial support to the Union Oil Shale Project in
Colorado. Synthetic Fuels maintains excellent files on the
environmental effects of the plant and may have data on retorted
shale. They can be contacted at (202)634-2506.
Thank you for your interest in fly ash and oil shale. If I
can be of further assistance, feel free to contact me, at
(202)382-6972.
Sincerely,
Robert Tonetti, Acting Chief
Special Waste Branch
Enclosures
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JUN 2 7 1990
9571.1990(04
Karl T. Johnson
Assistant Vice President, Regulatory Programs
The Fertilizer Institute
501 Second St. N.E.
Washington, D.c. 20002
Dear Mr. Johnson
This letter is in response to the two concerns you raised in
your April 16, 1990 letter to Dan Derkics, and which staff also
discussed at their April 18, 1990 meeting with you.
The first issue you raised concerns the status of corrosive,
low volume secondary materials such as precipitates and spilled
materials that are generally recycled in the phosphoric acid
plants' recirculating water systems. You are correct in your
interpretation of the impact on these wastes from the recent
rulemakings on the mining waste exclusion. The Agency
interpretation of the mixture rule as it applies to mineral
processing wastes could result in the entire water circulation
system losing its exempt status if there is continued circulation
of the corrosive secondary materials through the system.
In your letter, you suggest that the upcoming Report to
Congress (RTC) may result in a determination that the co-
management of secondary materials with process wastewater is
appropriate and would not endanger the exempt status of the
entire water system. The Agency does not believe that the RTC is
an appropriate vehicle to recommend such changes, due in part to
the severe time constraints the court has imposed on the Agency
for completion of the report. Instead, any Agency action
addressing these issues would have to be in the form of a
proposed and final rulemaking amending the mixture rule.
Undertaking such a rulemaking by the Agency at this time,
however, is unlikely due to other court ordered, higher priority
deadlines. In addition, it is unclear what impacts such a
rulemaking would have on other industries.
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- 2 -
Consequently, it would be prudent for the phosphoric acid
industry to take the steps necessary to comply with the
requirements of the recent Bevill rulemakings.
The second issue raised in your April letter concerns the
mixture rule and the use of phosphoric acid process wastewater in
the production of ammoniated phosphate fertilizer. You are
correct in your interpretation of the rule. The mixture of non-
hazardous ammoniated phosphate fertilizer waste with process
wastewater does not make a phosphoric acid plants water
recirculation system a hazardous waste management unit when the
mixture of process wastewater and non-hazardous ammoniated
phosphate wastes is returned to the system.
If you have any additional questions concerning these
matters, please contact Bob Hall or Dan Oerkics at (202) 475-8814
or (202) 382-3608, respectively.
Sincerely,
Robert Tonetti
Acting Branch Chief
Special Waste Branch
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•
f ^S^ \ UNITED STATES ENVIRONMENTAL PROTECTION AG
\SSSJ WASHINGTON, D.C. 20460 9571.1990(04
MAY 2: ".:!
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Mr. T. S. Ary
Director
Bureau of Mines
2401 E. St., N.W.
Washington, O.C. 20241
Dear Mr. Ary:
Thank you for your letter dated April 6, 1990, concerning
iron and steel slags, and their status in the upcoming Report to
Congress (RTC) on Mineral Processing Wastes. EPA appreciates the
contributions that the Bureau of Mines has made to the RTC to
date, and we would be pleased to meet with you to discuss issues
related to these slags.
Although the RTC has not been completed yet, based on the
information the Agency has collected to date on iron and steel
slags it is likely that the Agency will recommend that these
wastes remain within the Bevill exclusion — that is, we believe
these wastes will become permanently exempt from regulation as
hazardous waste under Subtitle c of the Resource Conservation and
Recovery Act (RCRA).
Iron and steel slags which are used in a manner constituting
disposal are currently considered "discarded materials" and thus
meet the definition of solid wastes under Section 1004(27) of
RCRA. See 40 CFR S 261.2 or 53 Fed. Reg. 31,198 (Aug. 17,
1988) for details. EPA is further considering, however, whether
such slags are similar enough to virgin aggregate that they
should not be classified as solid waste. EPA will address this
issue in greater detail in the upcoming Report to Congress, as
already promised in the final "Bevill Rule" (54 Fed. Reg. 36,615
(Sept. 1, 1989)). In any event, if these slag materials were to
continue to be exempt from Subtitle C regulation, I would expect
the use of slag materials would continue. Please let us know,
however, if the Bureau of Mines has reason to believe that
continued classification of these slags as solid wastes would
cause market disruptions and harm to the slag recycling industry.
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- 2 -
EPA is committed to furthering beneficial reuse and
recycling of materials such as iron and steel slags, to the
extent that these activities are conducted using environ-
mentally sound practices. Our search for documented cases in
which mineral processing wastes may have endangered human health
and the environment has revealed at least one instance where
blast furnace and basic oxygen furnace slag is believed to have
caused ground water and surface water contamination from the use
of the slag as fill and a landfill liner (see enclosure). Infor-
mation such as this must be analyzed before the Agency can make
an informed decision, concerning wastes.
Regulation of these slags as hazardous might have an effect
on their rate of utilization. The current process (RTC, followed
by public comment, regulatory determination and, if necessary/
the development of a regulatory program) is the appropriate
mechanism for addressing the environmental concerns and the
concerns about encouraging beneficial use in a safe manner.
Toward that end, Bob Hall of my staff will be in touch with
Larry Miller to arrange a mutually agreeable time for a meeting/
preferably in early June. Bob can be reached at (202) 475-8814.
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Waste
Enclosure
cc: Bob Hall
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9572 - STA1
PROGRAMS
Subtitle D
ATKl/l 104/72 kp
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OSVER POLICY DIRECTIVE
*9572.00-2
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
SOUO WASTE AND EMERGENCY «ES*ONSS
-rp 22 |0>--
THIS LETTER WAS SENT TO ALL STATE AND TERRITORIAL ENVIRONMENTAL
COMMISSIONERS
Dear:
As discussed in se.veral recent meetings with State and local
officials and with the State/EPA Committee, the Administrator
and I believe it is important to renew our efforts to develop
strategies for management of municipal solid wastes. We
particuTarlv believe that statewide solid waste planning is
an important step in assuring safe and adeguate solid waste
management capacity.
In this reoard, I want to encourage you to review and, where
appropriate, update your State's solid waste plan. In these
plans, we believe States should identify a general strategy
for protecting health and the environment from adverse
effects associated with solid waste disposal. I believe that
the following areas warrant particular attention in solid
waste management plans:
0 An indication of current and projected guantities
and locations of solid wastes generated in the
State
0 The expected future roles of source reduction,
recycling, incineration/energy recovery, landfillina
and/or other management approaches
• A sunaary of key regulatory and oermitting
requirements which apply to solid waste management
in yonr State
• An indication of the role of the public and various
political subdivisions in solid waste planning
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OSWER POLICY DIRECTIVE #9572.00-
The above and related information would be very helpful as
we jointly develop a national perspective on solid waste
management. To assist in this local-State-Federal effort, I
would be interested in receiving the latest version of your
plan, if available, in the next few months. I also would
request that copies of plans be sent to the appropriate EPA
Regional Offices.
I am aware that you have also been contacted in recent months
by your regional EPA office and requested to certify
compliance with Section 4005(c) (1) of the Hazardous and
Solid Waste Amendments of 1986. This section requires States
to develop and implement permit programs or other systems of
prior approval for facilities which receive household
hazardous waste and hazardous waste from smal] quantity
generators. Many of -you have responded, or are in the
process of respondinq to this request, and we are qrateful
for your cooperation. This system, together with sound
long-ranqe planning, should help lead us toward more efficient
and environmentally sound methods of handling solid waste in
the future.
An enclosure to this letter lists a number of documents which
may be of use when developing or revising your State solid
waste plan. For your additional information, I am also
enclosing a copy of a speech on solid waste management which I
delivered January 29 at a conference sponsored by the Council
of State Governments in New York City. The speech is similar
to testimony I presented last December 3 before the Subcommittee
on Toxic Substances of the Senate Committee on Environment and
Public Works.
Thanks very much for your help. Please let me know if EPA can
provide any assistance in responding to this request.
Sincerely,
J. Winston Porter
Assistant Administrator
Enclosures
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OSWER POLICY DIRECTIVE #9572.00-2
SOURCES OF INFORMATION FOR STATE SOLID WASTE MANAGEMENT PLANNING
Guidelines for Development and Implementation of State So.lid
Waste Management Plans (40 CFR Part 256) - 44 FR 45066,
July 31, 1979, amended at 46 FR 47051, September 23, 1981.
Criteria for Classification of Solid Waste Disposal Facilities
and Practices (40 CFR Part 257) - 44 FR 53460, September 13,
1979; amended at 46 FR 47052, September 23, 1981.
Municipal Waste Combustion Study: Report to Conqress,
June 1987 (Available from NTIS - Publication No. PB87-206074).
Testimony of Dr. J. Winston Porter before the Subcommittee
on Toxic Substances, Senate Committee on Environment and
Public Works, December 3, 1987.
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1986(01)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
SEPTEMBER 86
4. State Programs
40 CFR 271.1(i) allows a state's authorized RCRA program to be broader
in scope or more stringent than the Federal RCRA program. What is the
difference between state program elements that are broader in scope
and more stringent than Federal requirements? What are some examples?
The best available guidance distinguishing between "more stringent"
and "broader in scope" is program implementation guidance (PIG)
84-1. A state program that is broader in scope than the Federal
program either: 1) expands the size of the regulated community; or 2)
incorporates program elements that do not have a Federal counterpart.
Examples of requirements that are broader in scope are permits for
Federally-exempt wastewater treatment units, special licenses for
transporters, and listing of wastes which are not listed Federally.
A state program requirement that is more stringent has a direct Federal
program counterpart. Examples of more stringent requirements are
requiring generators to submit an annual, rather than a biennial report;
shorter duration periods for permits; and stricter management standards
for permitted or interim status tanks and containers.
The distinction between broader and more stringent state requirements
is significant because EPA may enforce a more stringent state require-
ment but not a state requirement that is broader in scop. RCRA $3008
(a)(2) allows EPA to enforce any provision of an authorized state's
approved program. More stringent state requirements fall into this
category. State provisions that are broader in scope are not part of
the Federally approved RCRA program, according to 40 CFR 27l.l(i), and
are therefore not enforceable by EPA (see also PIG 82-3).
Source: Marty Madison (202) 382-2229
Research: Jennifer Brock
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UNITED STATES ENVIRONMENTAL PROTECTION t 9572.1988(03)
WASHINGTON. Q.C. 20460
DEC 13 1988
THE AOMINIJTHATO*
MEMORANDUM
SUBJECT: Policy Regarding Hazardous Waste Management Capacity
and RCRA Consistency Issues
TO: Regional Administrators
In recent months we have focused on two parallel, but
overlapping, issues in the hazardous waste management area. One
issue has been the development of guidance for the State hazardous
waste capacity assurance process called for by Section 184(c)(9)
of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA). The other has been the issue of EPA's
approach to State actions which may be inconsistent with the
federal Resource Conservation and Recovery Act program.
This past June a task force on these RCRA consistency and
CERCLA capacity issues presented their findings to me. In
add^tiorTT we have now completed our guidance to the States for
the CERCLA capacity assurance process. Based on an evaluation of
the findings and guidance, I now want to present to you EPA's
policy in the area of RCRA consistency and CERCLA capacity
assurance.
First, we will rely on the CERCLA process as our primary
vehicle for ensuring that States have adequate capacity to manage
their hazardous wattes. As ouc CERCLA capacity guidance indicates,
the States must provide EPA with a good knowledge of their current
and projected wast* amounts and management practices, including
correlation of imports and exports between States; description of
waste niaimization programs; and discussions of laws and regulations
which asvy affect the state's ability to manage wastes. EPA must
approve these State assurances in order for EPA to provide Superfund
remedial actions in a State after October 17, 1989.
Secondly, the Regions should use the procedures for withdrawal
authorized State RCRA programs in the case of failure to use the
RCRA uniform manifest system, or for unreasonable restrictions on
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-2-
int'erstate waste movements. The CERCLA capacity assurance process
should be uaed as an initial response to State actions which
prohibit waste management within State boundaries without environ-
mental justification. States may be able to resolve issues
related to such actions themselves during the interstate discussions
that the CERCLA process will foster. The Regions should, therefore,
decide whether to initiate proceedings to withdraw State RCRA
programs for prohibitory actions after determining that the CSRCLA
process has proven ineffective.
I believe the above dual approach to be a positive one
allowing us to work within the legal authority provided, and to
assist States in developing needed waste management capacity.
Lee M. Thomas
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9573 - MUNICIPAL
WASTE COMBUSTION
Subtitle D
ATKl/l 104/73 kp
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9573.1986(01)
JUH2T 086
Mr. Steve Stander
c/o Department of Plant
and Soil Sciences
Stockbridge Hall, Room 10
University of 'lassachusefcts
Anherst, Massachusetts 01003
Dtar ur. Standan
This is in response to your June 9, 1936, request for
information regarding municipal vasts Incinerator ash management,
resource recovery, and regulatory statutes applicable to such
incineration.
Disposal of solid residues from municipal waste combustion
(HWC) processes is generally accomplished by landftiling. Ply
ash as well as other residues from MWC processes sometimes
exhibit the characteristics of hazardous waste and, therefore,
are regulated under the applicable dispoeal standards in 40 CFR
Parts 260 through 265. Other than those occasions when the MWC
reeiduee meet the definition of hazardous waste, the Federal
regulations that apply are the same as those for any non-hazardous
waste. Theee regulations are the "Criteria for Classification
of Solid v/aste Disoosal Facilities and Practice*' (40 CPR Part
257} which were pronulgated on September 13, 1979, under authority
of the Resource Conservation and Recovery Act (RCRA). A copy of
these Criteria is enclosed for your information.
On the State level, regulatory strategies re-;arUirv7 disoosal
of MWC residues are greatly varied. Currently, your hone State
of Massachusetts has no specific restrictions addressing
of MWC residues. However, it is -sy understanding chat future
Massachusetts regulations raay require that disposal of tn«
residues DSJ restricted to landfills which are lined *nii have
leachate collection systems. For additional information, you
nay wish to contacti
Mr. William ?. Cass, Director
Division of Solid and Hazardous *'aste
Department of environmental Quality
Engineering
One Writer Street, 5th Floor
Soeton, Massachusetts 02199
(617) 292-5589
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Zn response to the various Congressional mandates written
into the tiasardous and Solid Waft* Amendments of 1984, the U.S.
Environmental Protection Agency (EPA) has recently initiated
several projects in an effort to address subject areas pertinent
to your inquiry. The Agency is currently developing a technical
information docuaent for use by State and local governments in
evaluating municipal waste combustion projects. Included in
this document will be the results of a study to determine the
characteristics of ash from MWC processes. We anticipate that
this document will be available in February 1987. EPA is also
evaluating the potential health and environmental impacts from
the disposal of these residues. The results of this assessment
should be available within the year.
EPA'a Municipal and Environmental Research Laboratory in
Cincinnati, Ohio, is currently investigating ash sampling and
analytical techniques. Should you require technical information
at this level, you may contact!
U.S. EPA
Center for Environmental Research
Information/ORO
26 west St. Clair Street
Cincinnati. OH 45268
I am also enclosing a list of references which address a
broad range of topics which should be pertinent to your study.
I hope this information is useful to you. If you hava
further inquiries, please do not hesitate to contact me.
Sincerely,
Gerri Dorian
Special wastes 3rancn
Enclosures
cc: 3ob Janney, SPA (w/o enclosures)
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RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY 957j.i967(0
MARCH 87
9. Subtitle D Survey
LTider the Subtitle D Survey, the EPA is evaluating solid waste
•disposal facilities in response to the Hazardous and Solid Waste
Amendments o£l984. The authority EPA is using to obtain the
survey information is sited in §3007(a) of RCRA. However, this
authority only allows access to facilities which handle or have
handled hazardous waste. Where does EPA get its authority to
access and obtain information at a facility that does not or has
not handled hazardous waste?
EPA gets its authority to access entry and- obtain information at
solid waste disposal facilities from §3007(a) of RCRA. This
section requires any person who handles or has handled hazardous
wastes to furnish to EPA information relating to such wastes
and to allow access to the facility and its records to EPA or
authorized State officials, for the purpose of developing or
assisting in the development of any regulation or for enforce-
ment purposes. The scope of EPA's inspection authority is not
limited under the statute to hazardous wastes identified or
listed under Subtitle C but rather extends to any waste that
the Agency believes may meet the statutory definition of a
hazardous waste under $1004(5). As defined by Congress, the
term hazardous waste means any solid waste that EPA reasonably
believes
"because of its quantity, concentration or physical,
chemical, or infectious characteristics may-
(A) cause or significantly contribute to an increase in
mortality or an increase in serious irreversible, or incapacitating
reversible, illness; or
(B) pose a substantial present or potential hazard to '.uman
health or the envirormnt when improperly treated, stored,
transported, or disposed of, or otherwise managed." (emphasis
added)
Solid wastes which may contain any of the hazardous constituents
listed in 40 CFR 261, Appendix VIII which may form the basis
for listing actions under 40 CFR 261.11 would fall within the
statutory definition of hazardous waste and would be subject to
EPA's information gathering and inspection authorities.
These authorities also apply Co hazardous waste from households
and small quantity generators which are often placed in nunicipal
landfills and other Subtitle D disposal facilities.
Consequently" when EPA needs information to facilitate regulatory
development or enforcement, EPA can use Section 3007 to obtain
information from Subtitle 0 facilities.
Source: Jim Craig (202) 382-3410
Research: Joe Nixon
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
9573.1990(01)
FEE I 6 1990
SOUO WASTE AND EVfcPGESCv «ES»ONSE
Guy Sutherland
Managing Director
Lomax Development Corporation
P.O. Box 41206
Houston, TX 77241
Dear Mr. Sutherland:
This is in response to your letter of January 12, 1990, in
which you inquire about any regulations which may apply to you
should you choose to export municipal solid waste (i.e., non-
hazardous waste) from the United States to an unspecified country
in Central America. At the present time, the Environmental
Protection Agency (EPA) does not have the authority to control the
export of this type of waste; therefore, there are no EPA
regulations that apply. (For your information, EPA does regulate
the export of hazardous waste under section 3017 of the Resource
Conservation and Recovery Act (RCRAM. Thus, there is no
requirement that you provide written proof of acceptance by the
receiving country.
As you may be aware, the U.S. government is in the process of
deciding whether to sign the Basel Convention. The Basel
Convention governs the transboundary movement of wastes. Should
the U.S. sign and ratify the Convention, certain new requirements
will apply to persons exporting municipal wastes. Such
requirements would include a notification and consent procedure for
the export of municipal solid waste.
In addition, there is legislation currently pending before
Congress, which, if passed, would regulate exports of municipal
solid waste. The legislation would ban the export of solid waste
unless it was made pursuant to a bilateral or regional agreement
with the receiving country. The exporter would also have to obtain
a permit from EPA to export the waste under the proposed
legislation.
Although there are no EPA regulations that apply at the
present time to the export of wastes such as those referred to in
your letter, this situation could change should the U.S. become a
signatory to the Basel Convention or should pending legislation
pass. You may find it valuable to keep informed on legislative
developments in this area.
on Uteyet* faptr
-------
Should you have questions regarding this letter you may
contact Emily Roth of my staff at (202) 382-4777.
Lowrance
.rector
Office of Solid Waste
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9573.1990(02
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
-~ 29 1990
Of
SOLID WASTE AND EMERGENCY RESPONSE
Ms. Julie Sullivan
9 Bittersweet Court
Centerport, New York
Dear Ms. Sullivan:
11721
I am writing in response to your March 6 letter to Sylvia
Lowrance regarding the Environmental Protection Agency's (EPA)
interpretation of the regulatory status of municipal waste
combustion ash.
As you noted, EPA articulated its interpretation of
Section 3001(i) of the Hazardous and Solid Waste Amendments in
the July 15, 1985 Federal Register (pages 28725-26). The
Agency stated that there was no specific legislative language
or history indicating that ash generated by energy recovery
facilities accepting non-hazardous wastes from commercial or
industrial sources would be exempt from regulation under
Subtitle C if such ash exhibits a characteristic of a hazardous
waste. Because the Section 3001(1) exemption did not extend to
the ash from energy recovery facilities, ash generated by the
combustion of non-household wastes is required to be handled
like any other waste - if it exhibits a hazardous waste
characteristic, it must be managed accordingly.
Recently, Sylvia Lowrance reiterated the Agency's position
regarding the regulatory status of ash, in testimony before the
House Subcommittee on Transportation and Hazardous Materials.
Ms. Lowrance indicated that although the statute is ambiguous,
EPA continues to believe that its interpretation of existing
law is correct. The testimony also makes clear, however, that
EPA believes that ash could be managed safely as a special
waste under RCRA Subtitle 0, with the use of management
controls such as disposal in lined monofills, leachate
collection systems, and groundwater monitoring. Accordingly,
the Agency supports Congressional legislation that would
provide EPA with clear authority to regulate ash from municipal
waste combustors under Subtitle 0.
Two recent court decisions (enclosed) have rejected EPA's
statutory interpretation and concluded that Section 3001(1) of
RCRA does exempt ash from regulation under Subtitle C.
Print** on RtCfcUd Paptr
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Environmental Defense Fund. Inc. v. Wheelabrator Technologies,
Inc. No. 88 Civ. 0560 (S.D.NY. Nov. 21, 1989). Environmental
Defense Fund. Inc. v. City of Chicago No. 88 C 769 (N.D.IL.
Nov. 29, 1989). The Agency is considering the appropriate
response to these decisions.
I hope that this information sufficiently addresses your
questions. Than* you for your interest.
Doreen sterling
Chemist
Municipal Solid Waste Program
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9573.1991(01)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MAY 1991
2. Regulation of Municipal Waste Combustion (MWC) Ash
Two cities have recently constructed combustion facilities to manage municipal solid
waste. The first city has an energy recovery plant, while the second has a non-
energy recovery incinerator. Both units generate a'fly and bottom ash. Would these
types of ash be subject:~ RCRA hazardous waste regulation if the ash exhibited a
toxicitv characteristic?
*
No. The ash would not be subject to the 40 CFR 261.24 toxicity characteristic
(TO regulation. The Clean Air Act Amendments of 1990 were enacted on
November 15,1990; Section 306, entitled "Ash Management and Disposal,"
established that for a period of two years after the date of enactment, MWC
ash from "solid waste incineration units" would not be regulated as a RCRA
Subtitle C waste should it exhibit a hazardous waste characteristic of
ignilability, corrosivity, reactivity, or toxicity in 40 CFR Part 261, Subpart C.
(Note: MWC ash would not be regulated as a hazardous waste in 40 CFR
Part 261, Subpart D since it is not a listed source.) The term "ash from solid
waste incineration units burning municipal waste" includes fly and/or
bottom ash from both energy recovery and incineration facilities managing
municipal waste. During the two year moratorium, however, MWC ash
would be subject to: 1) current federal regulations in 40 CFR Part 257
governing the disposal of solid waste, 2) state regulations governing solid
waste disposal; and 3) state regulations governing municipal waste
combustion ash disposal or utilization/reuse, where they exist. See also
Environmental Defense Fund. Inc. v. Wheelabrator Technologies. Inc.. Docket
No. 90-7437 (2d Cir. April 24,1991).
Source: Andrew Teplitzky, QSW (202) 382-4536
Research: Cynthia Hess -•*
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UNr.uD STATES ENVIRONMENTAL PROTECTION AGENCY 1990(Q1)
NOV 28 1990
Marilynne Wilson, RN
Quality Assurance Coordinator
Family Home Care
P.O. Box 2145
Spokane, Washington 99210-2145
Dear Ms. Wilson:
Thank you for your letter dated October 12, 1990 regarding the
proper disposal of old medications.
Expired medications from households may fall into the category
of household hazardous waste. Household hazardous waste (HHW) is
appropriately identified by applying two criteria. First, the
waste must be generated by individuals on the premises of a
temporary or permanent residence for individuals. Second, the
waste stream must be composed primarily of materials found in the
waste generated by consumers in their homes. Other items that may
fall into this category may include excess household cleaners, lawn
and garden products, and paint thinners, among others, when
intended for disposal. Based on the information in your letter,
it is not clear whether the medication you manage qualifies as HHW.
However, you should be able to determine the regulatory status of
the material based on the aforementioned criteria. At the Federal
regulatory level, HHW is excluded from hazardous waste regulations
under Subtitle C of the Resource Conservation and Recovery Act
(RCRA). Please note that state or local regulations may be more
stringent than Federal regulations.
Although household hazaidous waste is excluded from
Subtitle C regulations, the Environmental Protection Agency (EPA)
shares concerns such as yours regarding household hazardous waste.
In fact, EPA attempts to address some of these concerns in the
enclosed publication entitled A Survey of Household Hazardous
Wastes and Related Collection Programs. This report contains the
results of a comprehensive nationwide survey of HHW. In this
publication the Agency identifies: existing information on the
types and quantities of HHW; the impacts of HHW on homeowners,
solid waste collection and disposal personnel, and the environment;
and existing collection programs at the state and local levels.
You may also be interested in the enclosed publication Household
Hazardous Waste: Bibliography of Useful References and List of
State Experts which lists resources and contacts for HHW programs.
-------
With regard to disposal of old medications, rinsing the
bottles and flushing this type of waste down a toilet may be the
most appropriate method of disposal. Additionally, most
pharmacists recommend flushing expired tablets and capsules down
the toilet. By disposing of these normally minute quantities of
household waste in this fashion, the possibility of exposing
children that might be attracted to the potentially harmful
materials while in the trash is removed. Federally, any mixture
of domestic sewage and other wastes that pass through a sewer
system to a publicly owned treatment works (POTW) for treatment is
not regulated under Subtitle C.
*>
I suggest you consult your local publicly owned treatment
works (POTW) to determine if local limits or general/specific
prohibitions are applicable when disposing of expired medications
in this manner. I also suggest you contact your state solid waste
program office to determine if they can provide additional HHW
disposal guidance. The address in Washington is:
Solid And Hazardous Waste Management Division
Department of Ecology
Mail Stop PV-11
Olympia, Washington 98504
(206) 459-6316
Thank you for your interest in proper waste management. I
hope this information is useful when determining the appropriate
disposal options for expired medications.
Sincerely,
Mike Petruska, Chief
Waste Characterization Branch
Enclosures
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9574.1991 (01)
WASHINGTON, D.C. 20460
MAY 30 1991
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Lynn L. Bergeson
Weinberg, Bergeson, and Neuman
1300 Eye Street, N.W.
Suite 600 East
Washington, D.C. 20005
Dear Ms. Bergeson:
This letter responds to your April 12, 1991 letter on behalf
of the Battery Products Alliance (BPA) requesting clarification
of the scope of the 40 CFR 261.4(b)(l) household waste exclusion
under the Resource Conservation and Recovery Act (RCRA) .
Specifically, you have raised the issue of the applicability
of the exclusion to nickel-cadmium batteries (NiCds) removed from
household products by service centers where the household
products are taken to the service center by a consumer. Further,
you express concern that the Agency ' s interpretation of the scope
of the household waste exclusion is contrary to both the
legislative and regulatory histories of the exclusion.
First, thank you for your interest in developing recycling
programs for NiCd batteries and in the applicability of RCRA
regulations to these programs. We are considering the points
that you and BPA member companies have raised in your letters
concerning the difficulties involved in implementing NiCd
recycling programs if the batteries exhibit the Toxicity
Characteristic.
Turning to the Agency's interpretation of the household
'waste exclusion, you are correct in understanding our
interpretation to be that batteries removed by consumers in their
homes are within the exclusion and are exempt from the hazardous
waste regulations, and batteries removed by service centers from
appliances taken to the service centers by consumers are not
within the exemption.
This means, of course, that if spent NiCds generated by
service centers exhibit any of the hazardous waste
characteristics, they are subject to the RCRA hazardous waste
regulations. Service centers must determine the total quantity
of hazardous waste generated per month to determine whether they
must manage the NiCds in compliance with the conditionally exempt
Printed on Recycled Paper
-------
small quantity generator regulations of 40 CFR 261.5, or the
generator regulations of 40 CFR Part 262. Also, individual
states may have more stringent or additional regulations
governing the management of these wastes.
Although others may have a different interpretation of the
legislative history of the household waste exclusion, the
Agency*s interpretation of the legislative history and of the
scope of the exclusion have been consistent since promulgation of
the exclusion in 1980. Note that the May 19, 1980 Federal
Register (45 ZB 33099) states that EPA interpreted Congressional
intent "... to exclude waste streams generated by consumers at
the household level" (i.e., by homeowners at home).
Additionally, a November 13, 1984 Federal Register notice (49 IB
44978) which amended the household waste exclusion also included
a discussion of the scope of the exclusion in the preamble. The
1984 notice explained that based on legislative history, it is
appropriate to apply two criteria to define the scope of the
exclusion. First, the waste must be generated by individuals on
the premises of a temporary or permanent residence for
individuals (i.e., a household) and second, the waste stream must
be composed primarily of materials found in the wastes generated
by consumers in their homes. If a waste satisfies both criteria,
it is considered a household waste. Thus, spent NiCd batteries
generated by homeowners would fall under the household waste
exclusion, while those generated by service centers and other
businesses would not.
We recognize that the NiCd battery situation (i.e., many
states considering take-back programs and many products
manufactured such that spent batteries must be removed by service
centers) may present some unique opportunities for safe and
effective recycling. We are also aware of your concerns about
implementation of recycling programs in states considering
legislation designed to increase the rate of NiCd recycling. We
are therefore currently examining the available options to
determine how to facilitate such programs. We expect it will
'take us several more weeks to assess options and reach a
tentative decision on how to best address your concerns. At that
time, we will notify you of the results of our analysis and of
our plans to implement the decision.
To ensure that you are fully informed about our current
thinking on an approach to this issue, there are several options
that we are exploring. First, we are investigating what could be
accomplished in the short term to alleviate the problems you have
identified. One possibility is to extend the current regulations
governing lead-acid battery reclamation to spent NiCd battery
reclamation. As part of this effort, we must evaluate issues
such AS the size of the problem, hazards posed by waste disposal
and recycling, and the feasibility of possible solutions. Any
information that you could provide concerning the following items
-------
would be extremely helpful: 1) the types and quantities of
cadmium and nickel used in batteries in the United States, 2)
current management practices for spent NiCds, 3) collection and
storage systems currently in place and planned, 4) recycling
processes currently in use and planned, and 5) quantities of
batteries reclaimed within the U.S. and overseas.
Second, as you are aware, we are currently conducting a
comprehensive analysis of the RCRA regulations to determine how
they could best be Modified to encourage environmentally sound
recycling of hazardous wastes. In particular, one of the issues
being studied is how to address reverse distribution systems that
involve the return of hazardous wastes to product manufacturers.
Thank you for your continued interest in increasing the
environmentally sound recycling of NiCd batteries and how RCRA
regulations impact such efforts. Should you have any further
questions regarding the household waste exclusion, please contact
Mike Petruska at (202) 475-8551.
Sincerely,
David Tlussard
Director
Characterization and Assessment
Division
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9574 - HOUSEHOLD
HAZARDOUS WASTE
Subtitle D
ATKl/1104/74 kp
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OSWER POLICY DIRECTIVE NO. 9574.00-1
>.- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I WASHINGTON. D.C. 20460
MOV ! !S88
SOuC WAS" AND sME.HGENC^ "ES'C
MEMORANDUM
SUBJECT: Clarification of Issues Pertaining to Household
Hazardous wast£_ Collection Programs
FROM: J. Winstott Porter
Assistant Administrator for Solid Waste
and Emergency Response
TO: Waste Management Division Directors,
Regions I-X
As you know, the Agency enthusiastically supports
household hazardous waste (HHW) collection and management
programs. As part of this support, EPA has sponsored annual
HHW conferences since 1986. The first collection programs
began in 1981. As of October 1988, over 1300 collection
programs have been set up in 44 States and more programs are
being planned all the time. EPA believes these programs are
important because they: (1) promote citizen awareness
regarding proper handling of HHW; (2) reduce the amount of HHW
in the municipal solid waste stream which ultimately is
taken to municipal waste combustors or landfills; (3) limit
the amount of HHW which is dumped down a drain and ultimately
discharged to a publicly-owned treatment works (POTW), or is
dumped indiscriminately; (4) remove a greater amount of HHW
from the home, thereby reducing potential safety hazards; and
(5) help to reduce the risk of injuries to sanitation workers.
Several issues have been raised pertaining to HHW
collection programs. These issues include the liability of
collection-, program sponsors under the Resource Conservation
and Recovery- Act (RCRA) and the Comprehensive Environmental
Response, dispensation, and Liability Act (CERCLA); EPA's
recommendations regarding the management of HHW; and the
regulatory status of HHW that contains dioxin.
-------
- 2 -
This memorandum clarifies our position on these issues.
You should note, however, that State positions may vary; the
State agency should be contacted for details on the State's
policies or regulations regarding HHW.
1. What does EPA recommend regarding management of HHW
collected in HHW collection programs?
•
As you know, all household wastes are exempt by
definition from the Federal hazardous waste regulations
promulgated under Subtitle C of RCRA. Section 261.4(b)(l)
unconditionally exempts household wastes, including HHW, from
the Subtitle C regulations even when accumulated in large
quantities. This exemption also applies to HHW collected
during an HHW collection program. However, when household
wastes are mixed with hazardous wastes from small quantity
generators, this resulting mixture is subject to tjie small
quantity generator rules in Section 261.5. For this reason,
sponsors of HHW collection programs should be careful to limit
the participation in their programs to households to -avoid the
possibility of receiving regulated hazardous wastes from
commercial or industrial sources and triggering all or some of
the Subtitle C controls on this waste.
•
Household waste, including HHW, is subject to the
regulations under Subtitle 0 of RCRA. The current Subtitle D
regulations governing the disposal of any solid waste are the
"Criteria for Classification of Solid Waste Disposal
Facilities and Practices" (4O CFR Part 257). These
regulations are general environmental performance standards
that are implemented by the States. On August 30, 1988 (see
53 FR 33314) EPA proposed new rules for municipal solid waste
landfills at 40 CFR Part 258. HHW can legally be disposed in
any solid waste disposal facility, including a municipal solid
waste landfill, that is in compliance with the existing
"Criteria" and Stats and local requirements.
Although HHW is exempt from the Federal RCRA Subtitle C
hazardous waste regulations, EPA rflcgnaflTVig that sponsors of
HHW collection programs manage the collected HHW as a
hazardous waste. When a community has already gone to the
effort and expense of collecting these materials, Subtitle c
controls provide a greater level of environmental protection.
In selecting a management option, the Agency recommends that
program sponsors follow the waste management hierarchy of:
-------
(t) Reusing and recycling as much waste as possible;
(2) Treating waste in a hazardous waste treatment
facility; and, finally,
(3) Disposing of remaining waste in a hazardous waste
landfill.1
The Agency also recommends the use of licensed hazardous
waste transporters who will properly identify, label,
manifest, and transport the collected wastes for recycling,
treatment, or disposal. Although sponsors are not required to
manage HHW as a hazardous waste, it is clear from seeing the
programs in action, that, in fact, sponsors usually contract
with hazardous waste management professionals to run the
programs. These contractors generally manage the HHW as a
hazardous waste and usually make efforts to reuse and recycle
the waste.
k
2. What is the regulatory status of HHW that contains dioxin?
As stated above, HHW is unconditionally exempt from
Federal RCRA Subtitle C regulation. This exemption includes
HHW that contains dioxin, such as pesticides. Like any
household waste, HHW that contains dioxin must be disposed
of in accordance with EPA's rules under Subtitle D of
RCRA.
The RCRA land disposal restrictions rule issued
November 8, 1986, applies only to those dioxin-bearing
wastes that are specifically listed as hazardous wastes
under Subtitle C of RCRA. Therefore, this rule does not
apply to any HHW and does not prohibit hazardous waste land
disposal facilities from receiving any HHW, even those
potentially containing dioxin.2 Although dioxin-containing
HHW are exempt from EPA's land disposal restrictions rule,
we understand that, due to public perception concerns,
some Subtitle C hazardous waste management facilities
currently do not accept dioxin-bearing HHW. EPA will
explore options with State and local governments so that a
solution to this problem can be found. For example, we
are looking at way* to encourage the waste management
industry to reconsider their position and accept these
wastes. Soae communities have chosen to temporarily
store this dioxin-bearing HHW until a more permanent
management option can be found.
1To the extent that non-hazardous liquids are not
containerized in accordance with Sections 40 CFR 264.314(d),
265.314(c), 264.316, and 265.316, such liquids are subject to
the non-hazardous liquids restrictions set forth at Sections
264.314(e) and 265.314(f).
2Likewise, the land disposal restrictions do not apply to
any other HHW.
-------
3. What liability do HHW collection programs sponsors have
under Subtitle c of RCRA?
As stated above, Section 261.4(b)(l), exempts household
wastes, including HHW, from the Federal Subtitle C
regulations. As a result, handlers of HHW are not potentially
liable under Subtitle C of RCRA for failure to follow the
regulations and are not required to manage collected HHW in
Subtitle C hazardous waste management facilities. As
previously mentioned, however, EPA recommends that this waste
be handled as a Subtitle C hazardous waste.
4. What liability do sponsors of HHW collection programs have
under CERCIA?
CERCLA does not contain an exclusion from liability for
household waste or an exclusion based on the amount of waste
generated. Any waste that qualifies as a hazardous substance
under CERCLA is subject to the liability provisions of Section
107. Hazardous substances are defined under Section-101(14)
and designated under Section 102(a) of CERCLA. HHW may
qualify as a "hazardous substance" if it contains any
substance listed in Table 302.4 of 40 CFR Part 302. If a
household waste contains a substance that is covered under
these CERCLA sections (whether or not it is a RCRA hazardous
waste), potential CERCLA liability exists.
Communities should recognize that potential liability
under CERCLA applies regardless of whether the HHW was picked
up as part of a community's routine waste collection service
and disposed of in a municipal waste landfill (RCRA Subtitle
0) or if the HHW was gathered as part of a special collection
program and taken to a hazardous waste landfill (RCRA Subtitle
C). The additional safeguards provided by HHW collection and
Subtitle C management may reduce the likelihood of
environmental and human health impacts and, therefore, may
also reduce potential CERCLA liability.
I hope this information will assist you in addressing
questions regarding HHW collection and management programs.
We are providing copies of this memorandum to States and the
major waste management trade associations. I request that you
make this information available to any other interested
parties in your Region. If you require additional information
or clarification on these issues, please contact Allen Maples
of the Municipal Solid Waste Program at (202) 382-4683.
cc: State Solid and Hazardous Waste Directors
Bryan W. Dixon, ASTSWMO
Dana Duxbury, Consultant to Tufts University, CEM
William Forester, APWA
H. Lanier Hickman, GRCDA
Sheila Prindiville, NSWMA
Hazardous Waste Branch Chiefs, Regions I-X
Regional Subtitle D Coordinators, Regions I-X
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9574.1985(01
JAN 22 1985
Mr. Kevin Bromberg
Small Business Administration
2725 I Street, g.W.
Washington, D. C. 20416
Dear Mr* Brombergs
I am responding to the December 31, 1984, letter that Z
received from Mr. Chuck Marshall (JACA Corporation) requesting
Information on the disposal of nonhazardous liquid vastevaters
and sludges in sanitary landfills under the "old RCRA lav* and
•new RCRA lav.*
The Federal Government has no specific regulations on the
disposal of bulk or containerized nonhaxardous liquids in
sanitary (nonhatardous waste) landfills* The EPA "Criteria* or
guidelines regarding sanitary landfills were issued under
< Subtitle D of RCRA on September D , 1979, in 40 CFR Part 257.
i These Criteria, in general, establish performance standards
g for sanitary landfills. Specific design and operating practices
needed to meet the performance standards must be determined by
£ the facility owner or operator and may be specified by the
^ State through state regulations or State-issued permits.
\ Restrictions on liquids or certain liquids in landfills may be
1 needed at specific sites, depending on the facility design and
*• location, in order to meet the Criteria performance standards.
z To get current information on State requirements, you should
£ check vith the State agencies (list of State agencies is
g enclosed).
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1) The landfill has a synthetic liner and • functioning
leachate collection and removal eystem, as per
|264.301(a), or
2 ) B«fora disposal, the bulk liquids or fra« liquids
ar« traated or stabilized ao that fraa liquids ara
no longar praaant.
In regard to th« disposal of containerized nonhatardous
liquids in hazardous waste landfills, CPA's current requirement
is that all free-standing liquids Bust be removed from the
container before the vaste is placed in the landfill.
The RCRA amendments will change the rules regarding the
diapoaal of nonhasardoua liquids in hazardous vaste landfillSt
The amendments require that 22 months after enactment
(November 9, 1915), the placement of any liquid that is not
a hazardous vaste in a landfill for vhich a permit is required
under §3005(c) or vhich is operating pursuant to interim status
granted under $3005(e) is prohibited, unless the ovner or
operator demonstrates specific items to the Administrator (see
enclosure).
If you have any further questions concerning this letter,
you may contact Mr. Paul Cassidy of my staff at 382-4(82.
Sincerely,
John H. Skinner
Director
Office of Solid haste
Enclosure
ccs Chuck Marshall
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Administrative Directives
ATKl/1112/36sm
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9581 - RCRA GRANT
FUNDS
ATKl/l 104/75 kp
-------
9581.1988(0'
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
NOV
MFMOR ANDLJM OFFICE OF
MbMUKAINUUM souo WASTE AND EMERGENCY RESPONSE
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
AUGUST 88
FROM: Thea McManus, Project Officer
Office of Solid Waste
Hubert Warters, Deputy Project Officer-[HV
Office of Emergency and Remedial Response
TO: See List of Addressees
This report is prepared and submitted in support of Contract #68-01-7371.
I. SIGNIFICANT QUESTIONS AND RESOLVED ISSUES - AUGUST 1988
A. RCRA
1. Source Reduction and Recycling Technical Assistance Grants For States
On July 18,1988 (53 £R 27077) EPA announced the availability of a new financial
assistance program, "Source Reduction and Recycling Technical Assistance" for
States to develop or expand source reduction and recycling technical assistance
programs. The program is a grant/cooperative agreement program designed to
provide assistance to a limited number of states to establish or expand technical
assistance programs that address the reduction of pollutants from air, land,
surface, water and ground-water.
How much money is available to states through this program?
Congress appropriated $4 million for the source reduction and recycling
program. Of the total $4 million, $3 million will be awarded to States in fiscal
year 1989 under cooperative agreements. Approximately 10-12 states will be
selected through open competition. Each selected state will be eligible to
receive no more than $300,000.
What procedures should a state follow to receive grant money?
To apply for funds, State environmental agencies must: (1) submit a letter of
intent by August 15, 1988; and (2) submit a grant applications package by
September 30,1988.
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1. Source Reduction and Recycling Technical Assistance grants For States
(Cont'd)
What types of activities are eligible for funding?
These cooperative agreement funds are to be used specifically for establishing
and expanding source reduction and recycling assistance programs that
address the transfer of pollutants across all environmental media. A list of
possible activities eligible for funding include the following:
—Hiring personnel and/or procuring necessary expertise to support the
establishment and development of multimedia program;
—Providing direct technical assistance in source reduction and recycling,
especially to small and medium-sized firms;
—Conducting demonstration activities and/or in-plant pilot scale studies of
pollution prevention technologies;
—Developing and delivering programs to train staff to provide technical
assistance to generators in identifying and implementing source reduction
and recycling opportunities and activities;
—Developing or expanding state technical information clearinghouses that
contribute to national technical transfer networks or clearinghouses;
—Expanding and improving waste exchange programs among industry, states
and local governments;
—Developing and distributing industry/process-specific technical manuals
and /or brochures to help generators identify and implement source
reduction and recycling activities; and,
—Conducting outreach activities such as presentations, workshops and
seminars.
What are the differences between this program and ROTA?
ROTA (Resource Conservation and Recovery Act Integrated Training and
Technical Assistance Initiative) is designed to provide assistance to States to
plan and implement hazardous waste training and technical assistance
activities in support of the States' RCRA programs. The activities funded
under ROTA must include: (1) the development of a long term plan for
training and technical assistance activities; (2) delivery of RCRA program
training activities for State regulators; and (3) implementation of an initial
pilot technical assistance project in waste minimization.
The cooperative agreement funds will be awarded to States to establish multi-
media waste reduction technical assistance programs. Unlike ROTA, this
program is not specifically limited to wastes regulated under RCRA.
Source: Jackie Krieger (202)382-6972
Research: Chris Bryant
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