UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
FEB 2 3 1993
MEMORANDUM
SUBJECT: RCRA Enforcement Policy Cpmpendium Distribution
FROM: i^t/Susan Bromm, Director
/ RCRA Enforcement Divis
TO: Addressees
I am pleased to provide you with the RCRA Enforcement Policy
Compendium. The compendium was prepared to ensure that RCRA
enforcement policy memorandum and directives relating to the RCRA
Subtitle C enforcement program are accessible to you and your
staff. The Compendium includes 65 documents issued between 1980
and 1991.
A "tear-off" sheet is included in Volume I of the
compendium. Please register your copy of the compendium by
mailing the form to the address identified on the form. The
registration forms will be used to supply you with updates to the
compendium.
The public can obtain a copy of the compendium through NTIS
at (703)487-4650; order number PB92-963624. A hard-copy of the
compendium will cost $120, and $62 for a copy on microfiche.
Please contact Tracy Back at (202)260-3122 or Nancy Browne
at (202)260-9326 with any questions on the compendium. In
addition, please share your ideas regarding documents that should
be added to the compendium with Nancy or Tracy. We hope you find
the document useful.
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PB92-963624
OWPE92RE001C
September 1992
RCRA ENFORCEMENT
POLICY COMPENDIUM
Volume II
Office of Waste Programs Enforcement
U.S. Environmental Protection Agency
Washington, DC 20460
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INTRODUCTION - VOLUME II OF III
The RCRA. Enforcement Policy Compendium was developed by the RCRA Enforcement
Division. The Compendium was created to serve as a reference'tool to ensure that RCRA
enforcement policy memoranda and directives relating to RCRA Subtitle C are accessible to EPA
Headquarters personnel, Regional staff, and State enforcement program personnel. The
Compendium includes 65 documents issued between 1980 and 1991'.
The primary resources utilized to gather documents for the Compendium were the
Hazardous Waste Collection at the EPA Headquarters Library, the Superfund Docket, the
Enforcement Document Retrieval System, RCRA Enforcement Division staff, other EPA
Headquarters staff, and Booz, Allen staff. Other resources, such as the National Technical
Information System (NTIS) and the Center for Environmental Research Information (CERI), were
consulted.
Because the Compendium is intended as a working reference volume and not an historical
record, it includes only the most recent version of documents and neither drafts of documents that
were later finalized nor documents that have been superseded. To facilitate ease of use, the number
of documents included in their entirety in the Compendium has been limited. Two lists of the
documents included in the Compendium, one alphabetical and the other chronological, have been
inserted to allow for easy identification of the contents.
The Compendium is divided into 15 sections that follow this Introduction. For
convenience sake, these sections have been further divided into three volumes. Volume I contains
Sections 1 through 3, Volume II includes Sections 4 through 8, and Sections 9 through 15 are in
Volume HI. The first 13 sections contain policy memoranda and directives. Each of these
sections contains a category of document relevant to RCRA Enforcement. These sections include:
Section 1 Administrative Orders/Administrative Authorities
Section 2 Civil/Criminal Actions
Section 3 Corrective Action
Section 4 Federal Facilities
Section 5 Federal/State Relations
Section 6 Financial Responsibility
Section 7 Ground Water
Section 8 Interim Status
Section 9 Off-Site Policy
Section 10 Permitting
Section 11 Referrals
Section 12 Settlement
Section 13 Violation Classification
The above categories are ordered alphabetically in the Compendium. Within each of the 13
sections, a table of contents lists, in chronological order, the documents that are included in their
entirety in that section of the Compendium. The table of contents entry includes the title of the
document; its directive number, where applicable; the date it was effective, if it is an official EPA
directive; an issued date, based on the date stamped on the document, if it is not an official EPA
directive; its originating source(s); and other RCRA enforcement categories to which the document
applies. A second list in each section, immediately following the table of contents, references
documents that appear elsewhere in the Compendium but are relevant to the section. Several
sections did not require a list of references to other documents.
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Section 14 of the Compendium lists documents that are relevant to RCRA enforcement but
were not included due to space restriction, or other concerns.
Section IS of the Compendium is a list of Federal Register final rules, interim final rules,
and corrections to final rules, that were published between 1980 and December 31,1990 and are
relevant to the enforcement of RCRA Subtitle C. These notices are grouped by relevant Code of
Federal Regulations (CFR) part and, within this grouping, appear in chronological order. Each
notice is listed under every CFR part for which it is relevant.
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Section 4
Federal Facilities
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en
w
O
O
3
FEDERAL FACILITIES
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Section 4 - Federal Facilities - Table of Contents
(Documents that appear in their entirety in this Section of the Compendium)
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
Enforcement Actions Under RCRA and CERCLA at Federal Facilities
9992.0
01/25/88
OSWER
Administrative Orders/Administrative Authorities
Corrective Action
Permitting
Settlement
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
^^sss^^^ss^
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
Elevation Process for Achieving Federal Facility Compliance Under RCRA
9992.01a
03/24/88
OSWER
Referrals
Settlement
Enforcement Actions at Government-Owned Contractor-Operated Facilities
09/08/88
OWPE
Federal Facilities Negotiations Policy
9992.3
08/10/89
OSWER
Administrative Orders/Administrative Authorities
Settlement
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Section 4 - Federal Facilities - Cross References
(Documents that are referenced under Federal Facilities but appear in the
Primary Section indicated)
TITLE
Enforcement Response Policy
DIRECTIVE NO.
SOURCE
PRIMARY
SECTION
9900.0-1A
OWPE
Violation Classification
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OSWER Directive # 9992.0
January 26, 1988
MEMORANDUM
SUBJECT: Enforcement Actions Under RCRA and CERCLA at Federal
Facilities
FROM: J. Winston Porter, Assistant Administrator
Office of Solid Waste and Emergency Response
TO: Regional Administrators
Regions I-X
BACKGROUND
Statutory language makes it clear that Federal facilities
must comply both procedurally and substantively with RCRA and
CERCLA in the same manner as any non-Federal entity. The purpose
of this memo is to lay out the statutory -authorities under RCRA
and CERCLA that EPA may use at Federal facilities to achieve
compliance and expeditious cleanup.
Over the past year, a great deal of effort has been spent
identifying those enforcement tools that are available to EPA in
the hazardous waste programs to achieve a higher level of
compliance at Federal facilities. Specifically, the successful
negotiation of individual agreements such as the corrective
action order with the Department of Energy (DOE) at the Idaho
National Engineering Lab and the Interagency agreement with the
Department of Army (DOA) at the Twin Cities Army Ammunition Plant
demonstrated significant progress in efforts to achieve
compliance and cleanup at Federal facilities. Further
clarification of EPA's enforcement capabilities at Federal
facilities has come from the Department of Justice in
Congressional testimony.
To continue the above progress in resolving compliance and
cleanup issues at Federal facilities, I am outlining the
enforcement and permitting response actions that EPA can
currently implement to formalize compliance and cleanup actions
at the Federal facilities. A description of the available
enforcement and permitting response actions is given for each of
the following scenarios.
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1) A Federal facility with RCRA compliance issues.
2) A Federal facility with RCRA corrective action issues.
3) A Federal facility with CERCLA issues.
4) A Federal facility with RCRA and CERCLA issues.
I. A FEDERAL FACILITY WITH RCRA COMPLIANCE ISSUES
At a Congressional hearing on April 28, 1987 before the
House Oversight and Investigation Sub-Committee, of the Committee
on Energy and Commerce, the U.S. Department of Justice testified
that EPA may not issue Administrative Orders at Federal
facilities under Section 3008(a) of RCRA to address compliance
violations of regulatory requirements. (See Attachment 1 for a
copy of DOJ's Congressional testimony). When addressing RCRA
compliance violations, EPA will issue the Federal facility a
Notice of Noncompliance (NON). EPA will then negotiate a Federal
Facility Compliance Agreement (FFCA) to resolve the compliance
issues outlined in the NON. Detailed below is a description of
the components of a NON and a FFCA.
A. Federal Facility Notice of Noncompliance
EPA will issue a Notice of Noncompliance (NON) as the
initial enforcement action at a Federal facility with RCRA
compliance violations. The notice should be sent to the
responsible Federal official at the facility, or their delegate.
The issuance of a NON at a Federal facility is parallel to the
issuance of a RCRA Section 3008(a) administrative complaint to a
private facility and, therefore, must conform with a RCRA Section
3008(a) complaint in content and format. As outlined in the
model language (Attachment 2), the NON should contain the
following components:
1) A general reference to the Resource Conservation and
Recovery Act as amended.
2) The factual basis for the issuance of the NON (e.g.,
acts, omissions and conditions identified during an
inspection).
3) A reference to the waiver of sovereign immunity under
Section 6001 of RCRA.
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4) A reference to the citizen suit provisions of Section
7002 of RCRA.
5) A reference to administrative, civil and/or criminal
sanctions under section 3008 of RCRA that may be
applied to an individual who is in charge of hazardous
waste management activities at a facility.
6) A detailed allegation of all RCRA violations with
citations to authorized state or EPA regulations.
7) A detailed compliance schedule (both actions and
timeframes) for the correction of violations.
8) The alternatives to the actions provided for in the NON
(e.g., Presidential exemption or specific legislative
relief from Congress).
9) A specific date or timeframe by which the Federal
facility must provide a written response to EPA
regarding their plans for addressing the violations
outlined in the document and/or a specific date for a
conference.
It is essential that the NON specify the violations, remedy,
and timeframes for implementing the remedy in the same manner
that a strong administrative or civil complaint would be drafted.
B. Federal Facility Compliance Agreement
After the NON has been issued, the final negotiated
document resolving compliance violations between the Federal
facility and EPA will continue to be called a Federal Facility
Compliance Agreement (FFCA). A very important section in any new
FFCA is the enforceability clause. Model enforceability language
is attached (Attachment 3) for your inclusion in any new FFCA.
Where appropriate, and when you can obtain expeditious agreement
from the affected Federal facility, you should add the
enforceability clause to existing Federal Facility Compliance
Agreements as well. This language reflects EPA's view that a
"requirement" in Section 7002 includes statutory and regulatory
requirements and other items which are mandated by these
requirements (e.g., schedules of compliance, various plans,
recordkeeping and reporting) and that this final negotiated
document is enforceable under Section 7002. This language also
recognizes that under RCRA Section 6001, Federal agencies are
required to comply with the agreement, subject to available
appropriations.
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All FFCAs should contain the model dispute resolution
clause found at Attachment 4. This dispute resolution language
emphasizes resolution of disputes at a lower level. In cases
where disputes are escalated to higher levels, the EPA
Administrator is the final decision maker.
C. Issuance of RCRA Section 3008 fa) Order to a Government-Owned
Contractor Operated Facility (GOCO)
When addressing RCRA compliance issues at a Federal
facility, EPA also has the option of issuing an enforcement
action against the non-Federal operator of a facility. In many
cases, contractors have the operational responsibility for waste
generation and management operations at a Federal facility.
At the aforementioned Congressional hearing on this topic,
DOJ stated that they saw no constitutional or statutory problems
to asserting Section 3008 authority (or any other authority)
against contract operators of government-owned facilities (GOCOs)
(see Attachment I, DOJ Testimony). This means that EPA and the
states have the full range of enforcement authorities under RCRA
and CERCLA at GOCOs that are available for private facilities.
Actions against GOCOs can be valuable enforcement tools
especially at facilities where the contractor does the majority
of the waste management work (i.e., DOE facilities). On a
factual basis EPA has not experienced trouble establishing the
contractor as the operator. The Mixed Energy Waste (MEWS) task
force found that at most of the major DOE facilities the
contractor(s) are the operators. A memo labeled Attachment 5 in
this package gives some criteria for determining the operator at
a Federal facility.
GOCOs are not shielded from enforcement actions for non-
compliance with environmental laws. Therefore, I strongly
encourage you to determine who is the operator of hazardous waste
management activities at a Federal facility when developing an
enforcement strategy at the facility. You should then examine
the factual association of the contractor at the facility. When
the primary operator at a Federal facility is clearly the
contractor(s), and the factual association of the contractor at
the facility. When the primary operator at a Federal facility is
clearly the contractor(s), and the factual basis for the
enforcement action is clearly defined, you should consider the
use of all RCRA and CERCLA authorities available for non-Federal
facility actions. The Federal Facilities Compliance Task Force
in the Office of Waste Programs Enforcement and the Office of
Enforcement and Compliance Monitoring will be working with your
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OSWER Directive # 9992.0
staff to identify those cases which may be good candidates for a
GOCO enforcement action.
II. A FEDERAL FACILITY WITH RCRA CORRECTIVE ACTION ISSUES
A. Corrective Action Orders (3008(hi) at Federal Facilities
With regard to corrective action and the applicability of
administrative orders under RCRA Section 3008(h) at Federal
facilities, DOJ has taken the view that corrective action orders
are integral to the permitting process. Since Section 6001 of
RCRA expressly requires Federal facilities to comply with
hazardous waste permits, DOJ has concluded that administrative
orders under Section 3008(h) can be issued to Federal facilities.
Based on this DOJ determination, Section 3008(h)
administrative orders should be issued whenever possible and
appropriate (e.g., an interim status facility which is not
seeking a RCRA permit or the issuance of the permit is not
expected in the near future). The existing administrative
procedures for issuing RCRA 3008(h) orders, as set forth in the
February 19, 1987 memorandum to the regional offices, will be
applied to Federal agencies. However, Federal agencies will have
the opportunity to elevate disputes to the Administrator for a
final decision in the event a dispute cannot be resolved at the
Regional Administrator level. Consistent with these procedures,
EPA will issue orders as necessary, and provide a reasonable
opportunity for Federal agencies to discuss the order with EPA.
If the Federal agency chooses not to invoke these procedures, the
order becomes final and effective.
As in the NON and FFCA, a Section 3008(h) order being issued
to a Federal facility should state the waiver of sovereign
immunity found in Section 6001 of RCRA. It should also contain
the model dispute resolution language found in Attachment 4. The
model enforceability language found in Attachment 3 is not
necessary since the order will explicitly cite the statutory
authority in Section 3008(h), and is, therefore, enforceable
under Section 7002 of RCRA. There should be no difference in the
factual basis for the issuance of a corrective action order
between a private facility and a Federal facility. The initial
order should be sent to the responsible Federal official at the
facility, or their delegate.
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B. Issuance of a 3008(h) Order to a Government-Owned
Contractor-Operated Facility (GOCO)
As described in Part III, RCRA Compliance, Section C, DOJ
has determined that EPA has the authority to exercise all of its
Section 3008 enforcement options at GOCOs. This authority is not
limited to RCRA compliance issues under Section 3008(a). It
includes corrective action authorities under Section 3008(a). It
includes corrective action authorities under Section 3008(h) and
Section 3013 of RCRA. All CERCLA enforcement authorities apply
to GOCOs as well.
III. A FEDERAL FACILITY WITH CERCLA COMPLIANCE ISSUES
A. Section 120 Interaqency Agreements
Under Section 120 of the Comprehensive Environmental
Response Compensation and Liability Act as amended by the
Superfund Amendments and Reauthorization Act (hereinafter
referred to as CERCLA), Federal agencies must enter into an
"interagency" agreement (IAG) for all necessary remedial actions
at Federal facilities on the NPL.
The Agency is viewing the Section 120 Interagency agreement
as a comprehensive document to address hazardous substance
response activities at a Federal facility from the remedial
investigation/ feasibility study (RI/FS) through the
implementation of the remedial action. All such interagency
agreements must comply with the public participation requirements
of Section 117. The timetables and deadlines associated with the
RI/FS and all terms and conditions associated with the remedial
actions (including operable units or interim actions) are
enforceable by citizens and the States through the citizen suit
provisions of Section 310 of CERCLA. In addition, Section 122(1)
of CERCLA authorizes the imposition of civil penalties against
Federal agencies for failure to comply with interagency
agreements under Section 120. Procedures for imposing these
penalties are provided for in Section 109 of CERCLA.
B. Other CERCLA Authorities Available at Federal Facilities
EPA has the authority to issue administrative orders to
Federal agencies under Section 104 and Section 106 of CERCLA.
Section 106 orders should be used where needed to assure
compliance with Federal facility requirements for response
action. Orders under Section 104(e)(5)(A) of CERCLA can be used
to collect information and obtain access to Federal agency sites
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where needed.
Executive Order 12580 clarifies that EPA is authorized to
issue Section 104 and Section 106 administrative orders to other
Federal agencies, with the concurrence of the Department of
Justice. Section 4(e) of the Executive Order provides that:
Notwithstanding any other provision of this Order, the
authority under Section 104(e)(5)(A) and Section 106(a)
of the Act to seek information, entry, inspection,
samples or response action from Executive Departments
and agencies may be exercised only with the concurrence
of the Attorney General.
CERCLA enforcement authorities under Section 106, both
administrative and judicial, can be used against government
contractors at Federal facilities. Administrative orders against
contractors do not require concurrence of the Department of
Justice. In addition, Section 120(e)(6) provides that, if the
Administrator determines that the response actions can be done
properly at the Federal facility by another responsible party,
then the Administrator may enter into an agreement with such
party under the settlement provisions of Section 122 of the
statute. Following the approval by the Attorney General of any
such agreement relating to a remedial action, the agreement will
be entered in the appropriate united States district court as a
consent decree under Section 106 of CERCLA.
States also have a variety of enforcement authorities under
CERCLA, so the exercise of EPA's enforcement authorities should
be closely coordinated with the States. First, Section 121(e)(2)
of CERCLA authorizes States to enforce any Federal or state
standard, requirement, criteria or limitation to which the
remedial action must conform under CERCLA. Second, Section 310
authorizes citizen suits to require Federal agencies to comply
with the standards, regulations, conditions, requirements, or
orders which have become effective pursuant to CERCLA including
lAGs under Section 120 of the Act. Third, Section 120(a)(4)
clarifies that State laws regarding enforcement, are applicable
at Federal facilities not included on the NPL. In addition,
Section 120(i) states that nothing in CERCLA Section 120 shall
affect or impair the obligation of the Federal agency to comply
with the requirements of RCRA, including corrective action
requirements (see section IV.C., "Importance of the States as a
Party to the IAG"). EPA enforcement actions against Federal
agencies should therefore be carefully coordinated with States,
to avoid potentially duplicative or conflicting exercises of
authority.
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IV. A FEDERAL FACILITY WITH CERCLA AND RCRA ISSUES
In many cases, facilities subject to an IAG will also have
RCRA liabilities. The most common example of the RCRA/CERCLA
overlap is where a unit(s) at the facility has interim status or
a permit under RCRA and a portion of the facility is undergoing a
CERCLA remedial investigation.
A. Enforcement Options
When developing a comprehensive strategy for addressing both
RCRA and CERCLA issues at a Federal facility, EPA and the states
should consider the following options, alone or in combination,
as possible mechanisms for getting enforceable requirements in
place:
1. A RCRA Permit
All RCRA Subtitle C permits issued after November 8, 1984,
will contain provisions for implementing the corrective action
requirements of 40 CFR Part 254 Subpart F (or authorized state
requirements), and Section 3004(u) and (v) of RCRA. For
facilities that have or are seeking a RCRA permit, the
requirements for a "CERCLA' remedial investigation and cleanup
could be met by implementing these requirements through RCRA
corrective action. It is important to keep in mind, however,
that the extent of coverage of the RCRA permit is generally
limited to hazardous wastes/constituents (e.g., some CERCLA
hazardous substances such as radionuclides are not RCRA hazardous
constituents and, therefore, the permit may not be able to
address all of the releases at a facility).
2. A RCRA Corrective Action Order
The corrective action authority under Section 3008(h) of
RCRA can be used at RCRA interim status facilities to address
releases from RCRA regulated units and other solid waste
management units. At a Federal facility that has interim status,
a RCRA corrective action order could address the investigation
and clean-up of releases in lieu of a "CERCLA" response action or
as an interim measure. (Again, the extent of coverage in the
RCRA corrective action order is limited to RCRA hazardous
wastes/constituents.)
3. Imminent and Substantial Endangerment Orders
CERCLA Section 106 can be used to address releases from RCRA
units or CERCLA sites when an "imminent and substantial
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OSWER Directive # 9992.0
endangerment" is shown.
4. An Interagency Agreement under Section 120 of CERCLA
A Section 120 IAG could be drafted to incorporate all RCRA
corrective action requirements and CERCLA statutory requirements.
Where some or all of a Federal installation has been listed on
the NPL, the CERCLA Section 120 IAG is required for remedial
action by statute.
The first agreement under Section 120 of CERCLA (IAG) was
finalized on August 12, 1987. The IAG at Twin Cities Army
Ammunition Plant (TCAAP) is a three party agreement between EPA,
the State of Minnesota, and the U.S. Department of the Army.
Several notable provisions that should be incorporated in every
CERCLA Section 120 IAG include a dispute resolution process that
denotes the EPA Administrator as the final decision maker, an
enforceability clause which states that provisions of the
agreement are enforceable by citizens and the State through the
citizen suit provision of Section 310 of CERCLA, and a means for
resolving both the RCRA and CERCLA requirements when both
statutes apply. Further guidance on CERCLA Section 120
agreements is being developed and will be made available to the
Regions as soon as possible. In the interim, the Regions should
consult with Headquarters on any IAG issues they encounter.
B. Strategy for Action at RCRA/CERCLA Sites
The decision on which of the above mechanisms to employ at a
Federal facility will be made on a facility specific basis.
However, if the Federal facility is on the NPL or is likely to be
placed on the NPL, I encourage the use of a Section 120 IAG to
incorporate both RCRA and CERCLA activities under one enforceable
agreement and to serve as a comprehensive plan for investigatory
and remedial activities at the facility, whether RCRA or CERCLA.
EPA, the State, and the Federal facility would agree on a
facility wide strategy, setting priorities and schedules for
action. If properly framed, the agreement would satisfy the
facility's RCRA corrective action requirements, as well as the
public participation requirements of Section 117 of CERCLA and
Part 124 of RCRA. At a later date, if appropriate,
corrective/remedial action requirements found in the IAG could be
incorporated into the RCRA permit for those facilities seeking an
operating or post-closure permit, in satisfaction of RCRA Section
3004(u) and (v) requirements. An Interagency Agreement under
Section 120 of CERCLA does not serve as the replacement for a
RCRA permit at a unit seeking an operating permit.
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C. Importance of the State as a Party to the IAG
CERCLA Section 120(i) states that nothing in CERCLA Section
120 shall affect or impair the obligation of the Federal agency
to comply with the requirements of RCRA, "including the
corrective action requirements." One interpretation of CERCLA
Section 120(i) is that the provision allows "re-cleanup" of a
release using RCRA corrective action authorities during or after
a cleanup of that release under CERCLA; this could be a problem
if a State, authorized to implement the RCRA program, contested
the technical standards of an IAG. In order to avoid arguments
over the interpretation of Section 120(i), as well as to avoid
potentially duplicative exercises of authority, I encourage the
inclusion of the State as a full signatory party for LAG'S at
RCRA facilities.
A three party agreement will ensure the following state
roles in the agreement:
0 appropriate application of state clean-up standards
0 public participation requirements
o enforceability
o involvement in setting priorities
0 dispute resolution
o review and comment on technical documents
This type of agreement would resolve differences between EPA
and state requirements up front.
CONCLUSION
This memo is the first step in developing an integrated
RCRA/CERCLA Federal facility compliance and cleanup strategy.
The fundamental principle of the strategy is that there is no
difference between environmental standards for Federal facilities
and private facilities. EPA holds Federal facilities accountable
for environmental cleanup and will proceed with enforcement
actions at Federal facilities in the same way that we would
proceed at private facilities. Although the limitations of
enforcement authorities at Federal facilities have frustrated
EPA's enforcement capabilities in the past, the RCRA corrective
action requirements in combination with CERCLA authorities under
Section 106 and Section 120 provide many options for achieving
cleanup at Federal facilities.
I have recently established a Federal Facilities Compliance
Task Force within OWPE which is dedicated to achieving compliance
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OSWER Directive # 9992.0
and cleanup at Federal facilities. The Task Force will be
working closely with the CERCLA Enforcement Division and RCRA
Enforcement Division of OWPE, other offices within Headquarters,
and the Regions to develop guidance and policy regarding Federal
facilities, to resolve difficult issues that arise from EPA's
negotiations with Federal facilities, to track ongoing
negotiations between EPA and Federal agencies, to pinpoint areas
for potential enforcement response, and to relay the Agency's
efforts at resolving compliance, corrective action and permitting
issues at Federal facilities.
I am requesting that you forward any Federal Facility
Compliance Agreements, Interagency Agreements, etc., that you are
negotiating with Federal facilities in your Region to Gene A.
Lucero, Director of the Office of Waste Programs Enforcement
(Mail Code: WH-527).
As I mentioned earlier, the Task Force will be working with
the Regions to pinpoint areas for possible enforcement action.
As DOJ has encouraged EPA to take appropriate enforcement actions
at GOCOs, the Task Force is interested in GOCO candidates for an
enforcement action under RCRA or CERCLA. I am polling the
Regions for suggestions of Federal facilities where the need for
an enforcement action is imminent and there is a clear means of
establishing the contractor as the operator. We will provide
Headquarter's support for the development of the order and
throughout the negotiation process.
If you have any questions regarding this memorandum or
recommendations of candidates for potential enforcement actions,
please contact Christopher Grundler, Director of the Federal
Facilities Compliance Task Force at FTS 475-9801. Questions can
also be directed to Jacqueline Thiell of the Task Force at FTS
475-8727.
Attachments
cc:
Gene Lucero, OWPE
Roger Marzulla, DOJ
Henry Longest, OERR
Tom Adams, OECM
Marcia Williams, OSW
Frank Blake, OGC
Richard Sanderson, OFA
Hazardous Waste Management Division Directors, Regions I-X
Regional Counsels, Regions I-X
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CERCLA Branch Chiefs, Regions I-X
RCRA Branch Chiefs, Regions I-X
Federal Facility Coordinators
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ATTACHMENT 2
NOTICE OF NONCOMPLIANCE
FOR FEDERAL FACILITIES
This NOTICE OF NONCOMPLIANCE, COMPLIANCE SCHEDULE and NOTICE
OF NECESSITY FOR CONFERENCE (Notice), is issued under the
Resource Conservation and Recovery Act, (RCRA) and further
amended by the Hazardous and Solid Waste Amendments. This Notice
is issued consistent with Executive Order 12088, Federal
Compliance With Pollution Control Standards. The authority to
issue this Notice has been delegated by the Administrator of EPA
Region and further delegated to the Director, Waste
Management Division, EPA Region (Complainant).
Complainant is issuing this Notice to the U.S.
(Respondent) as a result of (an
inspection on (date)/the review of relevant documents or other
information/a referral for action from the State of )
which provides evidence that Respondent has violated or is in
violation of one or more requirements of Subtitle C of RCRA and
the regulations promulgated thereunder concerning the management
of hazardous waste.
Pursuant to Section 6001 of RCRA, the Respondent as a
(department/agency) of the executive branch of the Federal
government and (generator of hazardous waste/owner or operator of
a hazardous waste management facility) is subject to and must
comply with both Federal and the State of 'a
requirements, including regulations and permit conditions
pertaining to the management of hazardous waste in the same
manner and to the same extent as any person (as defined in
Section 1004(15) of RCRA) is subject to such requirements.
Section 7002 of RCRA provides for citizens suits against any
person (including the United States) who is alleged to be in
violation of any permit, standard, regulations, condition,
requirements, prohibition or final order of RCRA. In addition,
any person as defined in Section §1004(15) of RCRA, including any
individual that may be responsible for the hazardous waste
management activities at the facility, who ha violated or is
violating any requirement of Subtitle C of RCRA or who knowingly
violates any material condition or requirement of a RCRA permit
or interim status regulations or standards maybe subject to
administrative, civil and/or criminal sanctions under Section
3008.
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OSWER Directive # 9992.0
In order to return to compliance, Respondent must implement
the actions prescribed in Section (Title of Section)
of this Notice within the timeframes stipulated (subject of
negotiation). Two possible alternatives to implementing the
prescribed actions are (1) the seeking of a Presidental exemption
pursuant to Section 6001 of RCRA or (2) the petitioning of
Congress for specific legislative relief. {Note: Noncompliance
with certain statutory or regulatory requirements of RCRA (e.g.,
Section 3005(e)(2)/40 C.F.R. 270.73(c) may require that the
Respondent immediately cease the addition of hazardous waste to
or the management of hazardous waste in the affected unit(s) or
at the entire facility and that there is no action which the
facility can take to return to compliance}.
Within 15 days of the receipt of this Notice of
Noncompliance/Violation, the Respondent must submit to EPA a
written response describing the Respondent's efforts to comply
with the violations outlined in this Notice. The Respondent must
also identify a date for a settlement conference between the
Respondent and the U.S. EPA. This response should be sent to
' (identify person to receive response) .
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OSWER Directive # 9992.0
ATTACHMENT 3
MODEL ENFORCEABILITY CLAUSE
FOR FEDERAL FACILITY COMPLIANCE AGREEMENTS
The [Department/Agency] recognizes its obligations to comply
with RCRA as set forth in Section 6001 of RCRA.
The provisions of this Agreement including those related to
statutory requirements, regulations, permits, closure plans, or
corrective action, including recordkeeping, reporting and
schedules of compliance, shall be enforceable under citizen suits
pursuant to 42 U.S.C. 6972(a)(1)(A), including actions or suits
by the State and its agencies. The {Department/Agency} agrees
that the State and its agencies are a "person" within the meaning
of Section 7002(a) of RCRA.
In the event of any action filed under Section 7002(a) of
RCRA alleging any violation of any such requirement of this
Agreement, it shall be presumed that the provisions of this
Agreement including those provisions which address recordkeeping,
reporting, and schedules of compliance are related to statutory
requirements, regulations, permits, closure plans, or corrective
action, and are thus enforceable under Section 7002(a) of RCRA.
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OSWER Directive # 9992.01 a
March 24, 1988
MEMORANDUM
SUBJECT: Elevation Process for Achieving Federal Facility
Compliance Under RCRA
FROM: J. Winston Porter, Assistant Administrator
Office of Solid Waste and Emergency Response
TO: Regional Administrators
Regions I-X
In my memorandum of January 25, 1988 I outlined the various
enforcement mechanisms that EPA is able to use at Federal
facilities under RCRA and CERCLA. The purpose of this memorandum
is to set forth an elevation process for settling disputes
between EPA and a Federal agency to assure that compliance
agreements are settled in a timely fashion.
BACKGROUND
The Federal Facilities Compliance Task Force recently
collected RCRA compliance information from the Regional offices
in preparation for a Congressional Hearing before the
Subcommittee on Transportation, Tourism, and Hazardous Materials.
This information consistently showed that in cases where EPA had
the enforcement lead at a Federal facility, negotiations between
EPA and the Federal facility on the terms of a FFCA had been
ongoing for extended periods of time. In some cases,
negotiations between EPA and the Federal facility had exceeded
the two year mark. Many Regions have expressed frustration in
their apparent inability to compel the conclusion of these
negotiations.
At the Hearing I expressed concern over the length of time
it was taking to conclude settlement negotiations for compliance
agreements at Federal facilities. I also described a process
that the agency was developing for elevating disputes between EPA
and Federal facilities to Headquarters for resolution. This
elevation process for resolving disputes between EPA and a
Federal facility when negotiations for a Federal Facility
Compliance Agreement are not concluded in a timely fashion is
described below. This process clearly would not apply if the
initial enforcement action was taken against the contract-
operator of a government-owned facility (GOCO).
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-2- OSWER Directive # 9992.01 a
NEGOTIATION AND ELEVATION PROCESS
As described in the January 25, 1988 memorandum, EPA will
issue a Notice of Noncompliance (NON) to a Federal facility as
the initial notification of RCRA class 1 violation(s) that are
classified as high priority. The NON should be consistent with a
RCRA 3008(a) complaint in format and content. The timeframes for
the issuance of the NON should be in accordance with the RCRA
Enforcement Response Policy for timely and appropriate
enforcement actions.
The followup to a Notice of Noncompliance is the development
of a Federal Facility Compliance Agreement (FFCA). The FFCA at a
Federal facility is parallel to a final order at a private
facility. It should contain a schedule of discrete actions for
returning the facility to compliance. In addition to the
provisions usually found in a final order under RCRA Section
3008(a), the FFCA must include an enforceability clause that is
identical to the model language found in the January 25, 1988
memorandum and model dispute resolution language for settling
disputes within the context of implementing the compliance
agreement.
After the issuance of a Notice of Noncompliance, the period
for negotiating a Federal Facility Compliance Agreement should
not exceed one hundred twenty (120) days. At day ninety (90),
the Region should evaluate whether negotiations will be concluded
within the next thirty days. If it appears that negotiations are
close to settlement, the Region should aggressively pursue the
finalization of the agreement within that thirty day period.
If it does not appear at day ninety (90) that negotiations
for the FFCA will be completed within the following thirty days,
the Region should refer the dispute to Headquarters for final
resolution. The dispute should be formally referred to the
Assistant Administrator for the Office of Solid Waste and
Emergency Response within thirty (30) days of the expiration of
the ninety day negotiation period. A notification of the
elevation of Headquarters should also be sent to the Assistant
Administrator for the Office of External Affairs and the
Assistant Administrator for the Office of Enforcement and
Compliance Monitoring. At the time of referral, the Region
should consider issuing a press release on the compliance status
of the facility.
When a dispute is elevated to Headquarters for resolution,
the referral package should consist of a chronology which details
the correspondence between the regional office and the Federal
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-3- OSWER Directive # 9992.01 a
facility regarding the compliance status of the facility. The
chronology should highlight the Region's efforts at reaching
agreement with the facility. The referral package must also
include a description of the specific issues in the FFCA that
remain unresolved and the position of both the regional office
and the Federal facility on these issues. Any background
documents that substantiate the dispute(s) should also be
included in the package.
My discussions and/or meetings with the equivalent
representative from the Headquarter's office of the affected
Federal agency to resolve the dispute shall take place for a
period not to exceed thirty (30) days. Regional representatives
may be asked to participate in these discussions. In any case,
Headquarters will keep the Region apprised of the status of
discussions. If the dispute is not resolved within the thirty
(30) day period, the dispute will be elevated to the EPA
Administrator and his Federal agency counterpart for resolution.
CONCLUSIONS
I would like to reiterate my request in the January 25, 1988
enforcement guidance to send copies of all Federal Facility
Notices of Noncompliance and draft and final Federal Facility
Compliance Agreements to the Federal Facility Compliance Task
Force. The Task Force is reviewing the draft FFCAs to ensure
that EPA's enforcement approach at Federal facilities is
nationally consistent. Collection and review of this information
will keep the Task Force up-to-date on Federal facility
compliance issues. Copies of correspondence that indicate the
lack of progress in negotiations between EPA and the Federal
facility for an FFCA should also be forwarded to Headquarters.
This information will allow the Task Force to anticipate the
elevation of a case to Headquarters for resolution.
Let me close by noting that timely escalation of disputes is
important to ensure compliance at Federal facilities. I urge you
to apply these timeframes seriously and to communicate them to
the Federal agency during the early stages of the negotiation of
an FFCA. Federal facility compliance with the hazardous waste
laws and regulations is one of my highest priorities. I would
appreciate your full support in implementing this elevation
process. If you or your staff have any questions, please contact
Christopher Grundler, Director, Federal Facilities Compliance
Task Force, Office of Waste Programs Enforcement, or Jacqueline
Thiell of his staff.
cc: Hazardous Waste Management Division Directors, Regions I-X
Regional Counsels, Regions I-X
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MEMORANDUM Sept. 8,1988
SUBJECT: Enforcement Actions at Government-Owned
Contractor-Operated Facilities
FROM: Bruce Diamond, Director
Office of Waste Programs Enforcement
TO: Hazardous Waste Management Division Directors
Regions I-X
Regional Counsels
Regions I-X
The purpose of this memorandum is to provide you with copies
of three enforcement actions that EPA recently issued to the
contract operators of government owned facilities (GOCO). Two of
these actions were brought under RCRA Section 3008(a) for
violations of RCRA regulatory requirements. The third action is
a notification letter for potential liability under CERCLA
Section 107. I commend Region V and VI for taking the initiative
in issuing these actions as the Assistant Administrator has
encouraged in both the January 28, 1988 guidance and in
congressional testimony.
To assist you in determining whether-an action against a
contractor may be an appropriate means of achieving compliance
and cleanup at a Federal facility, I have highlighted the
rationale used by Regions V and VI for proceeding against the
GOCO in each of these cases.
Case #1 - GOCO has primary responsibility for hazardous waste
management activities
In the case of the Lone Star Army Ammunition Plant, a RCRA
Section 3008(a) compliant was issued to the contractor after it
was determined that the contractor had practical and contractual
responsibility for the hazardous waste management activities at
issue. The ability to correct the violations was within the
contractor's control. The compliant included a proposed penalty
for the violation.
Case #2 - Prolonged and inconclusive negotiations with the
Federal Agency
At the Ravenna Army Ammunition Plant, a RCRA Section 3008(a)
complaint was issued to the contractor after lengthy
correspondence with the Federal Agency failed to resolve the
compliance issue complaint included a proposed penalty for the
violation.
Case #3 - GOCO is performing the work
At Air Force Plant #4, the contractor was issued a CERCLA
notice letter as a potentially responsible party for the
performance of a remedial investigation. In this case, the
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contractor is a long-term operator at the facility; it is
believed that the contractor contributed to the contamination
problem at the and the contractor is already performing the
remedial at the facility; and the contractor is already
performing the remedial investigation at the facility.
The decision on whether to pursue a GOCO enforcement action
and the timing of that action will always be made on an
individual basis as the facts of each case are unique. However,
it is useful to build upon practical experience in an effort to
anticipate the problems and issues before they occur.
I encourage you to provide the Federal Facility Hazardous
Waste Compliance Office (FFHWCO) within OPWE your ideas and
comments on the criteria for pursuing enforcement actions under
RCRA and CERCLA at GOCO facilities. As I mentioned, the
Assistant Administrator is encouraging these actions and the
FFHWCO is developing a policy on when they should be pursued.
You should relay to the FFHWCO any issues or problems that you
have encountered when considering or pursuing enforcement actions
at a GOCO facility.
cc: Ed Reich, OECM
Dick Sanderson, OFA
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ATTACHMENT 2 Dec. 27, 1988
PROCEDURES AND CRITERIA FOR DEPARTMENT OF JUSTICE CONCURRENCE
IN EPA ADMINISTRATIVE ORDERS TO FEDERAL AGENCIES
1. Purpose — The purpose of these Procedures and Criteria
is to implement the responsibilities of the Attorney General (as
delegated to the Assistant Attorney General for the Land and
Natural Resources Division) under section 4(e) of the Superfund
Executive Order (EO 12580, Jan. 23, 1987) to review any
administrative order ("AO") that the Environmental Protection
Agency ("EPA") proposes to issue to a federal agency under
sections 104(e)(5)(A) or 106(a) of the Comprehensive
Environmental Response, Compensation, and Liability Act
("CERCLA"), 42 U.S.C. 9604(e)(5)(A), 9606(a).
2. Procedure — The EPA Assistant Administrator for Solid
Waste or, if delegated, the EPA Regional Administrator, should
submit the proposed AO and a referral letter to:
Assistant Attorney General
Land and Natural Resources Division
Department of Justice
Washington, D.C. 20530
with a copy to:
Chief
Policy, Legislation and Special Litigation Section
Land and Natural Resources Division
Department of Justice
Washington, D.C. 20530
The referral letter should include the following
information:
— A statement of the technical basis for the AO, including
all necessary findings that support the existence of an
imminent and substantial endangerment from an actual or
threatened release (for an order issued pursuant to CERCLA
§ 106(a)), or the basis for believing that there may be a
release or threatened release (for an order issued pursuant
to CERCLA § 104(e)(5)(A));
— A statement of EPA's prior dealings with the agency and
the efforts that have been made to resolve the matter;
— A statement of the objections raised by the agency in
objecting to compliance and EPA's response to those
objections;
— A statement of whether there are non-federal PRPs or
government contractors responsible for the facility and the
status of any EPA enforcement efforts against such persons;
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The name and telephone number of both the EPA attorney
with line responsibility for the AO and the EPA Headquarters
contact in the Federal Facilities Hazardous Waste Compliance
Office within the Office of Waste Programs Enforcement.
Upon receipt, the Policy, Legislation and Special Litigation
Section ("PLSL") will promptly (i) enter the proposed AO onto its
docket; (ii) review the proposed AO and advise the EPA line
attorney and the Federal Facilities Hazardous Waste Compliance
Office contact at EPA Headquarters if additional information will
be required; (iii) evaluate the proposed AO according to the
criteria listed below and prepare a recommendation for the
Assistant Attorney General. PLSL will then forward the proposed
AO and its recommendation to the Assistant Attorney General for a
decision. If the proposed AO and referral letter include all the
necessary information, the Assistant Attorney General will make
his or her decision within two weeks of receipt of the proposed
AO. The decision will be provided to the Assistant Administrator
for Solid Waste or the Regional Administrator, as the case may
be, in a letter stating the Assistant Attorney General's
concurrence, concurrence subject to conditions, or objection to
the proposed AO.
In situations where faster action is.required (for instance,
where there may be an emergency that presents a direct and
immediate threat to the public health), PLSL and the Assistant
Attorney General will attempt to review the proposed AO within 24
hours. . To obtain expedited review, the EPA line attorney or the
Federal Facilities Hazardous Waste Compliance Office contact at
EPA Headquarters should contact PLSL by telephone at FTS 633-1442
at the earliest possible time.
3. Criteria — In deciding whether to issue the proposed
AO, the Assistant Attorney General will consider the following
factors:
— whether the proposed AO is consistent with EPA's
statutory authority;
the extent of prior consultation with the affected
federal agency at the appropriate levels of authority;
— whether any non-federal PRP has responsibility that
affects appropriateness of the issuance of an AO to the
federal agency.
In addition to the foregoing, EPA and the Department of Justice
may raise, and the Assistant Attorney General may consider, any
other factors that may be relevant under the circumstances.
ROGER J. MARZULLA
DATED: Assistant Attorney General
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OSWER Directive No. 9992.3
August 10, 1989
MEMORANDUM
SUBJECT: Federal Facilities Negotiations Policy
FROM: Jonathan Z. Cannon
Acting Assistant Administrator
TO: Regional Administrators
Much progress has been made over the past year in establishing
new principles governing our relationship with other Federal agencies
we are charged to regulate. We now have specific tools and procedures
in place to resolve RCRA and CERCLA compliance and cleanup issues.
The challenge we now face is to manage the process so that these
issues are resolved in a timely and efficient manner.
BACKGROUND
We recently concluded negotiations on seVeral agreements with the
Department of Energy (DOE) and the Department of Defense (DoD) under
both RCRA and CERCLA. I know that you agree that these negotiations
took far too long to conclude and that negotiations with Federal
facilities, in general, are taking a disproportionate amount of your
staff's time. I share your frustration. I believe it is EPA's role
to be a catalyst and a facilitator for obtaining three-party
agreements with the states and other Federal agencies, and that we
must use every tool available to make this happen. For these reasons,
I am establishing the following policy governing Federal facilities
negotiations. This policy was developed in consultation with your
Waste Management Divisions and Offices of Regional Counsel.
POLICY
RCRA COMPLIANCE AGREEMENTS
The process for resolving RCRA compliance issues at Federal
facilities is described in the memorandum, Enforcement Actions at
Federal Facilities under RCRA and CERCLA (January 25, 1988 OSWER
Directive Number 9392.0). Negotiation time frames and the process for
elevating compliance disputes.are described in the memorandum,
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Elevation Process for Achieving Federal Facility Compliance under RCRA
(March 24, 1988, OSWER Directive Number 9992.1)-1
In all future RCRA Notices of Noncompliance (NON) to Federal
facilities, Regions should include a statement notifying the facility
of the negotiation time frames established by EPA policy, and the
automatic elevation of disputes after 90 days or 120 days with an
extension. When a RCRA compliance dispute is elevated pursuant to the
March 24, 1988 memorandum, the Region should consider issuing a press
release concerning the compliance status of the facility. EPA policy
concerning the use of press releases at Federal facilities is
described in EPA's Federal Facilities Compliance Strategy.
RCRA SECTION 3008(h) ORDERS
In accordance with the January 25, 1988 memorandum, the existing
administrative procedures for issuing RCRA 3008(h) orders, as set
forth in 40 CFR Part 24, will be applied to Federal agencies.
However, Federal agencies will have the opportunity to elevate
disputes to the Administrator for a final decision in the event a
dispute cannot be resolved at the Regional Administrator level.
CERCLA SECTION 120 AGREEMENTS
Section 120 Interagency Agreements (IAG) are complicated and
often difficult to negotiate because of the different jurisdictional
arguments raised by the negotiating parties, the scope of the
agreements relative to NPL and non-NPL areas, the different layers of
bureaucracy involved, and the relative newness (i.e., post model) of
the negotiation process. The model language negotiated with DoD and
DOE has been helpful in moving the negotiations forward and should
continue to be used without changes or further negotiation except to
accommodate important state concerns.
The same model language should be used when negotiating CERCLA
Section 120 Agreements with Federal Agencies other than DoD and DOE.
The use of the model language would reduce the amount of time it takes
to negotiate the Agreement, ensure consistency among the different
Federal agencies, and reaffirm EPA's commitment to the model language.
I expect that negotiations will become less protracted with each
site-specific settlement, since the parties will gain more experience
with the negotiation process, model language and concepts.
Notwithstanding recent agreements and experience gained, however, I am
still concerned that IAG negotiations take too long and are too
1 The guidance referenced above does not apply to
enforcement actions against contractor operators at Federal
facilities (GOCOs) since EPA can utilize its full range of
enforcement authorities at GOCOs to achieve compliance. The
Regions are encouraged to consider proceeding against GOCOs and a
separate GOCO enforcement strategy is being developed.
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resource intensive. Therefore, I am establishing this Federal
facility negotiations policy to expedite the negotiation process.
This policy requires establishing deadlines for settlement and
provides for elevating unresolved disputes to Headquarters with
subsequent referral of a CERCLA §106 Administrative Order to the
Department of Justice (DOJ) or settlement of a two-party agreement
between the Federal agency and EPA, as appropriate. The policy is as
follows:
1) Establishing Deadlines; The first step is for the EPA regional
office to establish a deadline for conclusion of negotiations.
This deadline is not to exceed 90 days. The deadline for ongoing
negotiations should be less than 90 days depending on how long
the negotiations have been in progress. If most major issues are
resolved, and prospects for agreement are good, the deadline may
be extended once for 30 days by mutual agreement among the
parties.
Deadlines should be set in accordance with the SCAP targets and
in consultation with states. The process for establishing
deadlines is to send the Federal facility a Federal facility
version of a Special Notice Letter with a draft IAG attached (See
Attachment I: Sample Federal Facility Notice Letter). This
notice letter and draft IAG should be sent at least 30 days
before the start of the targeted quarter. Regions with multiple
targets in any given quarter should stagger deadlines to avoid
elevation of multiple lAGs at the same time.
Since states are an integral part of the negotiations process,
they should be involved in the planning for establishing
negotiation deadlines to assure their availability. Regions
should contact their State counterparts and outline SCAP targets
for FY89 and FY90 to allow the states to factor these targets
into their internal planning and budget cycles. This planning
process should be conducted annually. Additionally, the draft
IAG sent with the Special Notice letter should have State roles
reflected in the language. The three-party version of the model
language recently sent to the Regions can be used as guidance.
You should discuss the incorporation of this language into the
draft IAG with the State in the course of your initial contact.
2) Establishing Scope; As part of the deadline setting process,
Regions need to address the scope of the IAG. This is imperative
because the scope will often dictate the difficult jurisdictional
issues that arise. The EPA regional office should discuss the
scope with the State and the Federal facility to determine
whether either party has specific concerns relative to the
releases potentially addressed by the IAG. EPA's general policy
is to address all releases at a facility under a CERCLA IAG.
However, in some situations the scope of the IAG may be limited
to areas on the facility that caused the facility to be listed on
the NPL with the remaining releases (i.e., non-NPL releases) to
be addressed under RCRA permitting or State enforcement. In
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other situations, the IAG scope could include both RCRA and
CERCLA lead activities. Scoping decisions will most often be
based on technical judgments about the nature and location of
contamination at the facility.
3) Negotiations; To expedite the negotiation process, prior to the
start of actual negotiation, the Region should coordinate with
the Federal facility and the State to establish negotiation teams
which are limited in number and have authority for most
negotiation decisions. After initial negotiation sessions have
occurred, it may be effective to schedule a lengthy negotiation
session of 3-5 days to address and resolve all outstanding
issues. These intensive negotiation sessions have proven to be
fruitful and an effective use of time. It is important for
Regions to closely coordinate with the Federal Facilities
Hazardous Waste Compliance Office (FFHWCO) during the negotiation
process by either sending the FFHWCO copies of draft lAGs as they
are developed, or in some cases by including the FFHWCO on the
negotiation team. Nationally—significant issues that are
tentatively agreed to in negotiations need to be elevated to
decision-makers for concurrence or further discussion. The
intent of this policy is to preclude last minute changes to
language that was previously agreed upon. Finally, in some
situations where the Region knows that a state will raise
significant issues, it may make sense to .discuss these issues and
EPA's position prior to three-party-negotiations. You should
inform the Federal agency that you are engaged in such
discussions with the State.
4) Elevation; If no agreement is reached on the deadline date (up
to 90 or 120 days with extension) then the Region is to elevate
the dispute to Headquarters for a 30-day period of negotiation
and concurrently prepare, in consultation with Headquarters,
either a CERCLA §106 Order for referral to DOJ or a two-party
agreement, depending on which is appropriate. Headquarters will
coordinate closely with the Region during this 30-day period.
A dispute should be elevated with a recommendation for a §106
Order when, in EPA's judgment, the Federal facility is refusing
to agree to a reasonable demand by EPA or the State, or is
failing to devote adequate resources to the negotiating process.
A dispute should be elevated with a recommendation for a two-
party IAG when, in EPA's judgment, the Federal facility has taken
reasonable positions on all outstanding issues and the State is
taking positions which EPA or the Federal facility cannot
reasonably agree to, or the State is devoting inadequate
resources to the negotiating process.
If the dispute cannot be resolved at Headquarters within 30 days,
then either the §106 Order will be referred to DOJ for
concurrence, or EPA and the Federal Agency will enter into the
two-party IAG. DOJ has agreed to a 14-day turnaround time for
review of referred §106 Orders. The Region has the flexibility
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of elevating a dispute to Headquarters at any time during the
established negotiation period should it become necessary (i.e.,
outstanding issues remain that present national policy concerns
which can only be resolved in Headquarters). The Region, in the
case of early elevation, should still prepare the order or two-
party agreement. Attached is a copy of DOJ's memorandum on
concurrence procedures for §106 Orders (Attachment 2) which can
be used as guidance.
5) Planning: The Regions should establish the deadlines for ongoing
negotiations and fourth quarter SCAP targets and forward this
information to the FFHWCO within 14 days of the date of this
policy. Subsequent deadlines should be forwarded to the FFHWCO
two weeks prior to the start of each quarter. The FFHWCO will
provide these deadlines to the appropriate Federal agency
headquarters.
The purpose of this policy is to preclude protracted negotiations
by establishing deadlines for all parties with consequences for
failure by the Federal agency or the State to reach settlement. I
believe that in most cases 90 days is sufficient time to successfully
conclude negotiations and that the potential for a §106 Order or two-
party agreement serves as an incentive to keep all parties at the
negotiating a table. The Federal Facilities Hazardous Waste
Compliance Office (FFHWCO) will continue to pr.ovide Regions with
assistance in negotiating lAGs, FFCAs, and 3008(h) orders.
Questions on this policy and the negotiation deadlines should be
referred to Chris Grundler, Director, or Gordon Davidson, Deputy
Director, or your regional coordinator within the FFHWCO at FTS 475-
9801 (mail code OS-530).
Attachments
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ATTACHMENT 1
FOR NPL SITES ONLY
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Re: Interagency Agreement for (name of site)
National Priority List Superfund Site
Dear
The United States Environmental Protection Agency (EPA) has
identified releases or threatened releases of hazardous substances,
pollutants or contaminants at the site. The
site is a Federal facility which is owned or operated by the
(name of Federal agency or department) pursuant to Section
120 of CERCLA, the (agency or department) is ultimately
responsible for addressing releases or threatened releases of
hazardous substances, pollutants or contaminants at or from the
site.
This letter serves to notify (agency or department)
that EPA is prepared to negotiate an Interagency Agreement (IAG) to
formally establish that the (agency or department) will
investigate and control the releases or threatened releases of
hazardous substances, pollutants or contaminants at or from the
site pursuant to CERCLA. While the (agency) or
department is responsible-for addressing the releases or threatened
releases pursuant to CERCLA, EPA intends to oversee the Remedial
Investigation and Feasibility Study (RI/FS) phases, as part of the
CERCLA remedy selection process, and the Remedial Design and Remedial
Action (RD/RA) phases of the response action at the ... site. The
IAG (see EPA draft enclosed) will be developed under Section 120 of
CERCLA and will reflect the commitment of (agency or department)
to conduct the RI/FS and any remedial action needed at the site, as
determined by the RI/FS, in accordance with CERCLA, as amended, the
National Contingency Plan (NCP) and appropriate EPA Guidance.
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EPA has determined that establishing a pre-defined period of time
for negotiation of an IAG will facilitate the development of the
Agreement with (agency or department) and will ultimately
serve to expedite remedial action at the site. Therefore,
this letter serves as "special notice" pursuant to Section 122(e)(l)
of CERCLA, as amended, of EPA's intent to conduct negotiations with
(agency or department) and the State of for the
development of an IAG.
By this special notice, EPA hereby establishes a ninety (90) day
period for negotiation of the IAG. If at the end of the ninety (90)
day period an IAG is not successfully negotiated between EPA,
(agency or department) and the State, EPA may, where appropriate,
extend the negotiation period for an additional thirty (30) days. If
at the end of the ninety (90) day period (or one hundred and twenty
(120) day period, where extended by EPA) an IAG is not successfully
negotiated, EPA may issue an order to (agency or department)
pursuant to Section 106 of CERCLA, with the concurrence of the
Department of Justice, for the conduct of the required work. Where
State participation in the IAG cannot be achieved within the ninety
(90) day period (or one hundred and twenty (120) day period, where
extended by EPA), prior to EPA's issuance of an order under Section
106 of CERCLA, EPA may, as appropriate, attempt to negotiate a two-
party IAG with the (agency or department) This two-party option
does not serve as a limitation on EPA's discretion to develop and
issue an order under Section 106 of CERCLA.
In response to this special notice, please provide EPA with a
letter indicating:
• the address and telephone number of the (agency or
department) official for EPA to utilize as a point-of-
contact; and
• a statement of the (agency or department) willingness
to negotiate an IAG.
Should such a letter not be received by EPA within fourteen (14)
days of your receipt of this letter, or should the deadline pass
without successful negotiation of an IAG, EPA will consider the period
of negotiations closed. EPA then will have the option of issuing an
order under Section 106 of CERCLA, proceeding under other available
statutory authority, or proceeding with any appropriate off-site
response using Superfund monies.
If you are already involved in discussions with State or local
authorities, engaged in voluntary action, or involved in a lawsuit
regarding this Site, you should not interpret this letter to advise or
direct you to restrict or discontinue any such activities. Please
provide a copy of your letter to any other party involved in those
discussions. You also should be aware that EPA will not delete the
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site from the National Priorities List until the necessary
remedial work has been concluded in accordance with CERCLA and the
NCP.
Your letter to EPA should be addressed to:
Site Remedial Project Manager
U.S. Environmental Protection Agency
Region
If you have any questions RPM's name can be reached at phone
number. Legal questions should be addressed to attorney's name, at
attorney's number
Thank you for your cooperation.
Sincerely,
, Director
Hazardous Waste Management Division
Enclosure
cc: Federal Department or Agency Headquarters
State Environmental Protection Agency
., Deputy Chief
Environmental Enforcement Section
Department of Justice
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9992.3
ATTACHMENT 4
MODEL LANGUAGE FOR
DISPUTE RESOLUTION
Except as specifically set forth elsewhere in this
Agreement, if a dispute arises under this Agreement the
procedures of this Part shall apply. In addition, during the
pendency of any dispute, the [Department/Agency] agrees that it
shall continue to implement those portions of this Agreement
which are not in dispute and which U.S. EPA and [State] determine
can be reasonably implemented pending final resolution of the
issue(s) in dispute. If U.S. EPA and [State] determine that all
or part of those portions of work which are affected by the
dispute should stop during the pendency of the dispute, the
[Department/Agency] shall discontinue implementing those portions
of the work.
All Parties to this Agreement shall make reasonable efforts
to informally resolve disputes at the Project Manager or
immediate supervisor level. If resolution cannot be achieved
informally, the procedures of this Part shall be implemented to
resolve a dispute.
A. Within thirty (30) days of the date of any action by
U.S. EPA or [State] which leads to or generates a dispute, the
[Department/Agency] shall submit to U.S. EPA and [State] a
written statement of dispute setting forth the nature of the
dispute, the [Department/Agency's] position with respect to the
dispute and the information the [Department/Agency] is relying
upon to support its position. If the [Department/Agency] does
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9992.3
not provide such written statement to U.S. EPA and [State] within
this thirty (30) day period, the [Department/Agency] shall be
deemed to have agreed with the action taken by U.S. EPA or
[State] which led to or generated the dispute.
B. Where U.S. EPA or [State] issue a Written Notice of
Position, any other Party which disagrees with the Written Notice
of Position may provide the issuing Party with a written
statement of dispute setting forth the nature of the dispute, its
position with respect to the dispute and the information it is
relying upon to support its position. If no other Party provides
such a written statement of dispute within thirty (30) days of
receipt of the Written Notice of Position, the Partiess shall be
deemed to have agreed with the Written Notice of Position.
C. Upon receipt of the written statement of dispute, the
Parties shall engage in dispute resolution among the Project
Managers and/or their immediate supervisors. The Parties shall
have fourteen (14) days from the receipt by the U.S. EPA and
[State] of the written statement of dispute to resolve the
dispute. During this period the Project Managers shall meet as
many times as are necessary to discuss and attempt resolution of
the dispute. If agreement cannot be reached on any issue within
this fourteen (14) day period any Party may, within ten (10) days
of the conclusion of the fourteen (14) day dispute resolution
period, submit a written notice to the Parties escalating the
dispute to the Dispute Resolution Committee (DRC) for resolution.
If no Party elevates the dispute to the DRC within this ten (10)
day escalation period, the Parties shall be deemed to have agreed
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9992.3
with U.S. EPA's position with respect to the dispute.
D. The DRC will serve as a forum for resolution of disputes
for which agreement has not been reached pursuant to Subparts A,
B or C of this Part. The Parties shall each designate one
individual and an alternate to serve on the DRC. The individuals
designated to serve on the DRC shall be employed at the policy
level (SES or equivalent) or be delegated the authority to
participate on the DRC for the purposes of dispute resolution
under this Agreement. Following escalation of a dispute to the
DRC as set forth in Subpart C, the DRC shall have thirty (30)
days to unanimously resolve the dispute. If the DRC is unable to
unanimously resolve the dispute within this thirty (30) day
period any Party may, within ten (10) days of the conclusion of
the thirty (30) day dispute resolution period, submit a written
notice of dispute to the Administrator of U.S. EPA for final
resolution of the dispute. In the event that the dispute is not
escalated to the Administrator of U.S. EPA within the designated
ten (10) day escalation period, the Parties shall be deemed to
have agreed with the U.S. EPA DRC representative's position with
respect to the dispute.
E. Upon escalation of a dispute to the Administrator of
U.S. EPA pursuant to Subpart D, the Administrator will review and
resolve such dispute as expeditiously as possible. Upon
resolution, the Administrator shall provide the
[Department/Agency) and [State] with a written final decision
setting forth resolution of the dispute.
F. The U.S. EPA representative on the DRC is the Waste
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9992.3
Management Division Director of U.S. EPA's Region
[State's] designated member is the [State's equivalent position].
The [Department/Agency's] designate member is the
[Department/Agency's equivalent position]. Notice of any
delegation of authority from a Party's designated representative
on the DRC shall be provided to all other Parties pursuant to the
procedures of Part XX.
G. The pendency of any dispute under this Part shall not
affect the [Department/Agency's] responsibility for timely
performance of the work required by this Agreement, except that
the time period for completion of work affected by such dispute
shall be extended for a period of time not to exceed the actual
time taken to resolve any good faith dispute in accordance with
the procedures specified herein. All elements of the work
required by this Agreement which are not affected by the dispute
shall continue and be completed in accordance with the applicable
schedule. The determination of elements of work, Submittals or
actions affected by the dispute shall be determined by U.S. EPA
and shall not subject to dispute under this Part.
H. Within fourteen (14) days of resolution of a dispute
pursuant to the procedures specified in this Part, the
[Department/Agency] shall incorporate the resolution and final
determination into the appropriate plan, schedule or procedures
and proceed to implement this Agreement according to the amended
plan, schedule or procedures.
I. Resolution of a dispute pursuant to this Part of the
Agreement constitutes a final resolution of any dispute arising
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9992.3
under this Agreement. The [Department/Agency] shall abide by all
terms and conditions of any final resolution of dispute obtained
pursuant to this Part of this Agreement.
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Nov. 8, 1988 9992.3
ATTACHMENT 5
MEMORANDUM
SUBJECT: Determination of Operator at Government-Owned
Contractor-Operated (GOCO) Facilities
FROM: Gene A. Lucero, Director
Office of Waste Programs Enforcement
Marcia E. Williams, Director
Office of Solid Waste
TO: Waste Management Division Directors
Regions I - X
The purpose of this memorandum is to clarify who should sign
as the operator on permit applications for Government-Owned
Contractor-Operated (GOCO) facilities. Earlier guidance (see
attached memo) had recommended that the Regional office consider
the role of the contractor in the operation of the facility
before determining who should sign the permit application. We
also noted that in some cases where the contractor's role is less
precisely defined the Region should exercise judgment given the
factual situation.
It appears that there is still some confusion regarding
signatories for permit applications. Whenever a contractor or
contractors at a government-owned facility, are responsible or
partially responsible for the operation, management or oversight
of hazardous waste activities at the facility; they should sign
the permit as the operator(s). In some instances both the
Federal agency and the contractor(s) are the operators and
multiple signatures to that effect would be appropriate. A
review of the facility's operating records, contingency plans,
personnel training records, and other documents relating to waste
management should indicate who the operator(s) are. As a general
rule, contractors will meet this test and therefore in most
situations should be reguired to sign the permit application.
If you have any questions please contact Jim Michael, Office
of Solid Waste at FTS 382-2231 or Anna Duncan, Office of Waste
Programs Enforcement at FTS 382-4829.
Attachment
cc: Bruce Weddle, OSW
Elaine Stanley, OWPE
Chris Grundler, OSWER
Matt Hale, PSPD
Federal Facility Coordinators, Region I-X
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Section 5
Federal/State Regulations
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M
n
1-3
M
O
z
1/1
FEDERAL/STATE RELATIONS
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Section 5 - Federal/State Relations - Table of Contents
(Documents that appear in their entirety in this Section of the Compendium)
TITLE Guidance on RCRA Overling
DIRECTIVE NO. 9939.0
DATE EFFECTIVE/ «-MAMM,
ISSUED 05/19/86
SOURCE
OTHER
RELEVANT
SECTIONS
^^s^W
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
^SSHSSra^
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
OWPE
Effect on EPA Enforcement of Enforcement Action Taken by States With Approved
RCRA Programs
03/09/88
OGC
Enforcement of Authorized State Laws Pursuant to 40 CFR Section 271.19 - Formal
Comments on State Requirements Applicable to Facility Permits
9936.3
01/24/89
OSWER
Permitting
-------
Section 5 - Federal/State Relations - Cross References
(Documents that are referenced under Federal/State Relations but appear in the
Primary Section indicated)
TITLE
Enforcement Response Policy
DIRECTIVE NO.
SOURCE
PRIMARY
SECTION
sSSSS^SSSSSS
TITLE
9900.0-1A
OWPE
Violation Classification
National RCRA Corrective Action Strategy
DIRECTIVE NO.
SOURCE
PRIMARY
SECTION
OWPE/OSW
Corrective Action
-------
9939.0
MEMORANDUM May 19, 1986
SUBJECT: Guidance on RCRA Overfiling
FROM: A. James Barnes
Deputy Administrator
TO: Regional Administrators, Regions I-X
Assistant Administrator, OSWER
Assistant Administrator, OECM
General Counsel
In several recent administrative enforcement cases, EPA has
been required to address the issue of EPA's authority to
"overfile" under RCRA—that is, to file an enforcement action
when a state has acted to enforce the same requirements. Because
the administrative decisions did not conclusively resolve the
point, I asked the General Counsel for an opinion on the issue.
In response, the General Counsel recently issued an opinion
concluding generally that RCRA itself imposes no legal
restrictions on overfiling, but that the Administrator may adopt
appropriate policies limiting the circumstances under which EPA
may overfile, or recommend overfiling to the Department of
Justice. A copy of that opinion is attached.
I have also asked the Agency's staff offices concerned with
RCRA enforcement to determine, in consultation with our Regional
offices and states administering authorized RCRA programs,
whether there is a need for additional guidance on overfiling.
That effort is now underway. Unless and until additional
guidance is issued, Regional decisions on overfiling under RCRA
are to be governed by this memorandum and existing guidance on
the subject.
Regions should continue to overfile RCRA enforcement actions
when the state fails to take timely and appropriate action.
Overfiling should be employed in cases where the state's action
is clearly inadequate. In determining whether an action is
inadequate, the Regions should look to the June 26, 1984 guidance
document entitled "Implementing the State/Federal Partnership in
Enforcement: State/Federal Enforcement Agreements" and the
"Enforcement Response Policy," issued December 21, 1984 for
further assistance.
Regions should make every effort to assure that there has
been thorough consultation with the state before overfiling. If
the Regional enforcement office has concerns about whether the
relief requested and penalties to be assessed by the state
comport with EPA's oversight policies on enforcement response and
penalty amount, these concerns should be made known to the state
before the state matter proceeds to judgment or settlement. It
should be emphasized that coordination and cooperation with the
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-2- 9939.0
states in advance of issuance of compliance orders regarding the
appropriateness of the terms of those orders will eliminate many
of the instances where overfilings are necessary.
In order to assure that full consideration has been given to
these actions, and their potential effects on Federal/State
relations, the Region's senior managers—i.e., Waste Division
Director and Regional Counsel (or higher level, if desired)—
should review and approve these cases for filing.
Attachment
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MEMORANDUM May 9, 1986
SUBJECT: Effect on EPA Enforcement of Enforcement
Action Taken By State With Approved RCRA Program
FROM: Francis S. Blake
General Counsel (A-130)
TO: Lee M. Thomas
Administrator
Question
If a state takes enforcement action under an approved RCRA
program, does RCRA bar a subsequent federal action to remedy the
same violations? Does the answer hinge on whether the state
action was timely or appropriate?
Answer
RCRA allows the Administrator to exercise complete
prosecutorial discretion in deciding whether to commence federal
enforcement when a state has taken action. The contrary reading
— that RCRA bars such actions — is unsupported by the statute
and legislative history. Such a reading would bar any federal
action when the state had enforced, regardless of the timeliness
or appropriateness of the state action.
Introduction
On May 10, 1985, an EPA Judicial Officer entered a final
order in the matter of BKK Corporation, Docket No. IX-84-0012
(RCRA (3008) 84-5). That order dismissed an administrative
enforcement action brought by EPA Region IX against the
corporation for violations of various provisions of the Resource
Conservation and Recovery Act (RCRA), on the basis that RCRA
barred a federal action if a State had taken "timely and
appropriate" enforcement action. On petition for reconsideration
filed by several EPA staff offices, the Administrator, on October
28, 1985, dismissed the complaint, but ruled that the earlier BKK
decision would "have no precedential effect." Decision on
Reconsideration at 4.
This opinion examines the effect of state enforcement on EPA
enforcement under RCRA. As the exchange of pleadings in the BKK
matter makes clear, EPA staff agreed with the industry respondent
that EPA should generally not take civil enforcement action if a
state has taken timely and appropriate enforcement action, but
contended that this was a policy matter, not a requirement of
statutory or case law. The dispute is not a trivial one. As we
show below, if RCRA limits federal enforcement based on prior
state enforcement, it would be difficult to confine those limits
to cases where the state action is timely and appropriate. It is
our opinion that EPA's decisions whether to defer to prior state
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enforcement are a matter of enforcement discretion and policy,
not statutory requirements.
Below, we examine RCRA, other relevant statutes, the
legislative history, and judicial decisions bearing on the effect
of enforcement by approved RCRA states.
Discussion
A. Relevant Statutory Provisions
The starting point in analyzing the Administrator's
enforcement powers under RCRA is the language of the statute.
Section 3008(a)(l) authorizes the Administrator, except as
provided in Section 3008(a)(2), to take an enforcement action
whenever he determines that anyone has violated a Subtitle C
requirement.^ Section 3008(a)(2) states:
In the case of a violation of any requirement of
this subtitle where such violation occurs in a State
which is authorized to carry out a hazardous waste
program under section 3006, the Administrator shall
give notice to the State in which such violation has
occurred prior to issuing an order or commencing a
civil action.-
Section 3008(a)(3) provides that EPA's enforcement action may
include revocation of a state-issued RCRA permit.
On the face of the statute, the only prerequisite to an EPA
enforcement action in an authorized state is a finding that a
violation of the authorized state program has occurred or is
occurring and that notice of EPA's intent to take action has been
provided to the state. Once EPA fulfills the Section 3008(a)
requirements, it may issue an administrative order requiring
compliance with applicable Subtitle C requirements, impose
administrative penalties, suspend or revoke the violator's RCRA
permit (whether issued by EPA or the state), and seek judicial
relief in federal district court.
It has been argued, however, that Section 3006 of the Act
somehow restricts EPA's enforcement authority. Section 3006
-/ After a state program has been approved, it operates "in lieu
of the Federal program ..." Section 3006(b). The requirements
of an authorized state program are considered Subtitle C
requirements.
-' Prior to 1980, EPA was required to provide states with 30
days' prior notice. The 30 day waiting period was deleted in
1980, Solid Waste Disposal Act Amendments of 1980, Pub. L.
No. 96-482, §13, 94 Stat. 2234, 94 Stat. 2339-30, and now EPA
need only provide "notice."
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governs "Authorized State Hazardous Waste Programs," and Section
3006(d) provides:
(d) Effect of State Permit.
Any action taken by a State under a hazardous
waste program authorized under this section
shall have the same force and effect as
action taken by the Administrator under this
subtitle.
This provision was the principal statutory basis for the Judicial
Officer's May 10, 1985 decision. He read it as limiting the
otherwise broad federal enforcement power under Section 3008 and
concluded that under the statute EPA can only overfile when a
state's action was untimely or inadequate. We believe that this
reading of the statute is erroneous. First, the "timely and
appropriate" qualifications that the Judicial Officer relied on
simply cannot be found in the text of Section 3006(d). To read
Section 3006(d) as applying to state enforcement actions thus
raises serious problems. If any enforcement action taken by the
state has the same force and effect as an EPA enforcement action,
EPA would never be able to take an enforcement action regardless
of the inadequacy of a state action. A settlement or judgment
binding on the state would, under this reading, also bind EPA
under principles of res judicata. See, e.g., Brown v. Felsen.
442 U.S. 127, 131 (1979) (final judgment on merits bars further
claims by parties or their privies based on the same cause of
action); Montana v. United States. 440 U.S. 147, 153 (1979). It
is unlikely that Congress would have buried such an important
limit on federal enforcement powers in Section 3006(d), a
provision concerning state permits.
On its face, Section 3006(d) does not address federal
enforcement powers. Section 3006 is entitled, "Authorized State
Hazardous Waste Programs." Section 3006(d) itself is entitled
"Effect of State Permit." Its principal purpose is plainly to
assure not only that a state will have authority to issue
permits, but also that those permits have the same effect, and
are enforceable to the same extent, as if they had been issued by
EPA.
By contrast, if Congress had meant to limit federal
enforcement power, we would, expect them to do this in the
enforcement provision, Section 3008. This expectation is
confirmed by the analogous provision in the Safe Drinking Water
Act. In Section 1423,-/ Congress specifically required EPA to
- Section 1423 provides in part that:
(a)(1) Whenever the Administrator finds during a period during
which a State has primary enforcement responsibility for
underground water sources (within the meaning of Section
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- 4 -
make a finding that a state abused its enforcement discretion
prior to commencement of federal enforcement. Congress certainly
would have provided similar language in the later enacted RCRA
had it chosen to impose a similar requirement.-7
It has also been suggested that Sections 3006(b) and (c)
implicitly limit EPA's authority under Section 3008. Section
3006(c) provides in pertinent part that "the Administrator shall,
if the evidence submitted shows the existing State program to be
substantially equivalent to the Federal program under this
subtitle, grant an interim authorization to the State to carry
out such program in lieu of the Federal program pursuant to this
-' (continued)
300h-l(b)(3) of this title or Section 300h-4(c) of this title)
that any person who is subject to a requirement of an applicable
underground injection control program in such State is violating
such requirement, he shall so notify the State and the person
violating such requirement. If the Administrator finds such
failure to comply extends beyond the thirtieth day after the date
of such notice, he shall give public notice of such finding and
request the State to report within 15 days after the date of such
public notice as to the steps being taken to bring such person
into compliance with such requirement (including reasons for
anticipated steps to be taken to bring such person into
compliance with such requirement and for any failure to take
steps to bring such person into compliance with such
requirement). If—
(A) such failure to comply extends beyond the
sixtieth day after the date of the notice given
pursuant to the first sentence of this paragraph, and
(B)(i) the State fails to submit the report
requested by the Administrator within the time period
prescribed by the preceding sentence, or
(ii) the State submits such report within such
period but the Administrator, after considering the
report, determines that by failing to take necessary
steps to bring such person into compliance by such
sixtieth day the State abused its discretion in
carrying out primary enforcement responsibility for
underground water sources,
the Administrator may commence a civil action under subsection
(b)(1) of this section. (emphasis added)
-; See also Clean Water Act, Section 402(h), which bars the
Administrator from seeking a sewer hookup ban in an enforcement
action against a municipality in a state with an approved NPDES
program if the state has "commenced appropriate enforcement
action ..." See also n. 8 and associated text, infra.
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subtitle ..." Section 3006(b) similarly provides that on final
authorization, the state "is authorized to carry out such
programs in lieu of the Federal program ..." Some have
contended that these provisions mean that once a state is
authorized it exercises its enforcement authority in lieu of EPA.
The notion that the "in lieu of" language bars federal
enforcement cannot be squared with the plain language of Section
3008(a)(2), which requires the Administrator to notify an
approved state "prior to issuing an order or commencing a civil
action ..." This language has no meaning if the
Administrator's enforcement powers terminate upon interim or
final authorization.
In any event, in context the "in lieu of" language evidently
refers to the state's implementation of the authorized state
program in lieu of the federal hazardous waste program, not to
whether the state or EPA may enforce the state program in a
particular case. Sections 3006(b) and (c) allow the state to
issue RCRA permits instead of EPA and to substitute its
regulatory and permitting program for that of EPA. Without these
provisions, the regulated community would have been subject to
both state and federal requirements — with them, the regulated
community does not have to comply with the federal requirements
in those areas for which the state has been granted
authorization.~
B. The Legislative History and Case Law
While the language and structure of the statute support
unfettered federal enforcement power in authorized states,
different passages in the legislative history point in different
and inconsistent directions. The House Report states that "the
Administrator is not prohibited from acting in those cases where
the states fail to act ..." House Committee on Interstate and
Foreign Commerce Report 94-1461 (Sept. 9, 1976) at 31, U.S. Code
Cong, and Admin. News, 94th Cong., 2d Sess. (1976) at 6261. This
language certainly suggests some sort of limitation on federal
enforcement power when a state has acted."
The Senate Report, by contrast, indicates an intent to draw
"on the similar provisions of the Clean Air Act of 1970 and the
-' The result is not affected by the provision of Section 3006(b)
that specifically authorizes a state with final authorization to
"enforce permits ..." Section 3008 rules out a reading that
this was meant to deprive EPA of its enforcement powers.
-' When the House Report discussed EPA's power to act "where the
states fail to act," it may have been referring to the then-
applicable requirement that EPA wait 30 days after notifying an
approved state before commencing enforcement action. That
requirement, as noted above (n. 2, supra) was deleted in 1980.
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Federal Water Pollution Control Act of 1972" in allocating
responsibilities between EPA and the states under Section 3008.
S. Rep. No. 988, 94th Cong., 2d Sess. 17 (1976). To understand
what the Senate Committee meant, we must examine those laws and
how the courts have interpreted them.
1. Case Law Under the Clean Air Act
Section 113(a)(1) of the CAA authorizes the Administrator to
order compliance or bring a civil enforcement action for
violation of a SIP. 42 U.S.C. §7413(a)(1). The only
prerequisite to filing suit in district court is that EPA must
notify the alleged violator and the state thirty days prior to
bringing a civil action. Prior to the 1970 CAA Amendments,
federal enforcement was permitted only where the violation
resulted from "the failure of a state to take reasonable action
to enforce such standards." Air Quality Act of 1967, 81 Stat.
485, 493. However, Congress chose to delete this limitation on
federal enforcement actions during consideration of the 1970
amendments. See generally A Legislative History of the Clean Air
Act Amendments of 1970. U.S. Senate Committee on Public Works,
93d Cong. 2d Sess. 113, 133, 146, 163 (1974).
Defendants accused of SIP violations have argued that
federal enforcement actions for SIP violations should be stayed
or dismissed on the grounds that such actions would relitigate
issues already decided in a prior state proceeding or would
duplicate a contemporaneous state enforcement action. The courts
which have considered such challenges have rejected that view on
the grounds that the only prerequisites to suit are those set out
in the statute: notice to the alleged violator and a lapse of
thirty days.- The statutory language and legislative history
-' Defendants in suits brought under Section 113(a)(1) have also
urged the courts to stay or dismiss these actions under the
doctrine of Colorado River Water Conservation District v. United
Statesf 424 U.S. 800 (1976). The Colorado River doctrine, as
clarified in Moses H. Cone Memorial Hospital v. Mercury
Construction Corp.. 103 S. Ct. 927 (1983), gives the federal
courts discretion to stay or dismiss an action involving the
contemporaneous exercise of concurrent state and federal
jurisdiction. Colorado River identified a number of prudential
factors to be considered, including the timing of the actions,
the convenience of the forums, and the need to avoid piecemeal
litigation. 424 U.S. at 818-819. Cone Memorial Hospital
required two additional factors to be taken into consideration:
whether federal law provides the rule of decision on the merits,
and whether the state court proceeding will adequately protect
the parties' interests. Id. at 941, 942. The Court emphasized
that only exceptional circumstances could justify a refusal to
exercise federal jurisdiction. Hence, the party invoking the
doctrine must demonstrate, beyond "any substantial doubt," the
existence of parallel state-court litigation that will adequately
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do not otherwise limit EPA's ability to bring an enforcement
action when there is or was a parallel state proceeding. See.
e.g.. United States v. SCM Corp.. 615 F. Supp. 411, 416 (D. Md.
1985) (existence of state administrative consent order did not
bar EPA action seeking civil penalties and injunctive relief for
SIP violations), United States v. Lehigh Portland Cement Co.. No.
C 84-3030, slip op. at 6 (N.D. Iowa Dec. 12, 1984) (state consent
order did not preclude subsequent EPA action for SIP violation);
United States v. Chevron. U.S.A.. Inc.. No. EP-80-CA-265, slip
op. at 3 (W.D. Tex. June 10, 1981) (pending state lawsuit which
had imposed temporary injunction for SIP violation did not bar
EPA suit for permanent injunction and civil penalties). Cf.
United States v. Harford Sands. Inc.. 575 F. Supp. 733, 735 (D.
Md. 1983) (state agreement on compliance schedule does not bar
federal action under CAA §113(a)(3)).
The recent decision in United States v. SCM Corp., 615 F.
Supp. 411 (D. Md. 1985), explains how state enforcement actions
are taken into account under Section 113(a)(1). Notwithstanding
the existence of a state enforcement action, EPA has the right to
press in federal court its claims regarding the issue of
defendant's liability and what penalties are appropriate for the
violations. Id. at 418. The court reasoned that if a state
enforcement action were to preclude federal action to enjoin or
punish the same violation, a state could nullify the federal
enforcement scheme by adopting and using a state enforcement
scheme providing for minimal penalties. Allegations of the
sufficiency of state action may be taken into account when the
court considers the appropriateness of relief but do not affect
liability under federal law or preclude the court from hearing a
case on its merits. Id. at 419. The court's reasoning in SCM.
supraf applies equally to RCRA enforcement.
2. Case Law Under the Clean Water Act
. The Clean Water Act, in contrast to RCRA, gives the
Administrator two options: under Section 309(a)(l), 33 U.S.C.
§1319(a)(l), he may notify the alleged violator and the state of
an alleged violation and issue a compliance order or bring a
civil action under Section 309(b) if the state has not "commenced
appropriate enforcement action" after the thirtieth day; or,
pursuant to Section 309(a)(3), 33 U.S.C. §1319(a)(3), he may
(continued)
achieve the complete and prompt resolution of the issues pending
in federal court. See id. at 943. The court in United States v.
SCM Corp.. 615 F. Supp. 411 (D. Md. 1985), noted that in a case
brought under Section 113(a)(1), it would be improper to apply
the Colorado River doctrine where the state action had already
been concluded or where EPA seeks relief not sought or obtained
in the state action. 615 F. Supp. at 417, 418. See also United
States v. Lehiqh Portland Cement. No. C 84-3030, slip op. at 8
(N.D. Iowa Dec. 12, 1984) (rejecting argument for stay).
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- 8 -
proceed directly against the alleged violator under Section
309 (b) without giving notice.-7
In United States v. ITT Ravonier. Inc.. 627 F.2d 996, 1001
(9th Cir. 1980), the court recognized EPA's ability to bring an
action under Section 309(a)(1) notwithstanding the existence of a
state enforcement proceeding. Noting the references in the
legislative history to "dual" or "concurrent" enforcement
authority, the court determined that enforcement actions for
effluent limitations violations could have been filed in both
state and federal courts. See also Aminoil. U.S.A.. Inc. v.
California State Water Resources Control Board. 674 F.2d 1227,
1230 (9th Cir. 1982); United States v. Carqill. 508 F. Supp. 734,
740 (D. Del. 1981) .-'
Aminoil. which held that EPA could not be joined as a party
to a suit filed in state court for review of a state order
defining a certain area as a "wetlands," acknowledged that the
statutory provision for concurrent state and federal jurisdiction
could force a defendant to relitigate the wetlands issue at the
federal level after the state administrative agencies and courts
had reached a decision. 674 F.2d at 1233. The court observed,
however, that EPA involvement in the state enforcement action
could interfere with the Agency's obligation to independently
fl /
- The Clean Water Act thus differs from RCRA in that notice
under Section 309(a)(1) is not a condition precedent to federal
enforcement. See United States v. City of Colorado Springs. 455
F. Supp. 1364, 1366-67 (D. Colo. 1978) (decision to proceed
unilaterally under Section 309(a) (3) is within sound discretion
of Administrator). In addition, EPA enforcement action under
Section 309(a)(1) is expressly limited to cases in which the
state has not "commenced appropriate enforcement action." Hence,
if EPA chooses to notify under 309(a)(1), that provision, unlike
Section 3008(b) of RCRA, contemplates that EPA will wait for the
state to initiate appropriate enforcement action in the first
instance. See Colorado Springs. 455 F. Supp. at 1366 (comparing
Section 309(a)(1) with 309(a)(3)).
-' In United States v. Carqill. 508 F. Supp. 734, 740 (D. Del.
1981), the court approved the filing of a federal enforcement
action under Section 309(a) of the Clean Water Act after a
parallel state filing, but suggested in dicta that such an action
could be brought only if after "notification the state has not
commenced appropriate enforcement action ..." Clean Water Act,
Section 309(a)(1), quoted in United States v. Carqill. supra.
(Emphasis in original). RCRA contains no language similar to
Section 309(a) (1) of the Clean Water Act requiring EPA to defer
to "appropriate" state enforcement. Moreover, the Carqill court
did not discuss Section 309(a)(3), which separately authorizes
federal enforcement but contains no limiting language. Finally,
in its discussion on the merits, the court relied on abstention
doctrines, not the limitations in Section 309(a)(1).
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- 9 -
exercise its supervisory authority under Section 309(a)(1). Id.
at 1236.
Although Ravonier and Carqill either dismissed or stayed
EPA's enforcement actions, the restrictions those cases place on
EPA enforcement action do not arise out of any statutory
restriction on federal enforcement power. Rayonier dismissed the
EPA action on res judicata grounds, reasoning that the central
issue in the case, which involved the construction of a state-
issued permit, had previously been litigated in a state
enforcement action and a final determination on the merits had
been reached in state court. 627 F.2d at 1002. As the Ninth
Circuit noted in Aminoilr the issues presented in Rayonier "may
be sui generis," in particular because the decision depended upon
a finding that, in the peculiar circumstances of that case, EPA
and the state agency were in privity. 674 F.2d at 1236. And
Carqill held that a limited stay was warranted under the Colorado
River— doctrine, giving great weight to the consideration that
the federal action had caused the defendant to halt its pollution
control efforts. 508 F. Supp. at 749-50.
D. Conclusion
As we have shown, if either Section 3006(d) or the "in lieu
of" language in Sections 3006(b) and (c) were read to apply to
state enforcement actions, any action taken by the state must
preclude EPA enforcement action for the same violation,
regardless of the adequacy of the state action. In contrast to
provisions of other statutes, such as Section 1423 of the Safe
Drinking Water Act (Administrator may act if he determines that
state abused its discretion) or Section 309(a)(1) of the Clean
Water Act (EPA must act if state has not taken "appropriate"
action), Section 3008(a)(2) of RCRA does not provide for any
limitations on EPA's enforcement power. On the other hand, if
such limitations are read into Sections 3006(b), (c), and (d),
there would be no statutory basis for lifting the prohibition on
~ Colorado River Water Conservation District v. United States.
424 U.S. 800 (1976). See supra n. 7. The Supreme Court's
subsequent decision in Moses H. Cone Memorial Hospital v. Mercury
Construction Corp.. 103 S.Ct. 924 (1983), calls Carqill into
question. Cone stressed that because a stay is as much a refusal
to exercise federal jurisdiction as a dismissal, it would be an
abuse of discretion for a federal court to grant either a stay or
a dismissal unless there is no substantial doubt that the state
court will adequately address the merits of the dispute. 103 S.
Ct. at 943. Relying on Cone, the court in United States v. SCM
refused to follow Carqill. reasoning that EPA should not be
deprived of its right to seek a determination of liability and
additional penalties under federal law. 615 F. Supp. at 418.
See also United States v. Lehigh Portland Cement, slip op. at 8
(Carqill does not apply in CAA case where EPA was seeking to
augment defendant's pollution control measures).
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EPA enforcement when the State's action is untimely or
inappropriate, a result that would be so inconsistent with
Congress's approach to similar issues in other environmental
statutes that it should not be inferred without conclusive
evidence of legislative intent.
Thus, we conclude that the only prerequisites to EPA
enforcement action in an authorized state are those set out in
Section 3008(a)(2): a finding of violation and notice. This
reading is supported by the language of Section 3008(a)(2)
itself, by the structure of RCRA, and by the case law construing
comparable provisions of the Clean Air Act and Clean Water Act.
It should be emphasized that the issue addressed in this
opinion concerns the statutory constraints on federal
enforcement. We believe that it is entirely appropriate and
consistent with RCRA for EPA, as a matter of discretion, to avoid
taking civil enforcement action if a state has taken timely and
appropriate enforcement action.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
SOLID WAS""? AND EMERGENCY
MEMORANDUM
SUBJECT: Enforcement of Authorized State Laws Pursuant to
40 CFR Section 271.19 - Formal Comments on State
Requirements Applicable to Facility Permits
FROM: Bruce M. Diamond, DirectoK^
Office of Waste Programs Enforcement
*
TO: Hazardous Waste Division Directors
Regions I-X
We have recently had several inquiries into EPA's enforcement
capabilities pursuant to 40 CFR Section 271.19(e)(2). That section
states "the Regional Administrator may take action under Section
3008(a)(3) of RCRA against a holder of a State-issued permit at any
time on the ground that the permittee is not complying with a
condition that the Regional Administrator in commenting on the
permit application or draft permit stated was necessary to
implement approved State program requirements." This section
applies whether or not the condition commented on by the Region was
included in the final permit. Because Section 271.19 is a very
important and little understood provision, we would like to provide
some initial guidance on how that section should be interpreted and
implemented.
We want to encourage the Regions to provide comment letters as
required under Section 271.19 if a State permit condition is
inconsistent with the approved State RCRA program (i.e., the
conditions imposed by the State in the permit do not address, or
fail to address adequately, specific authorized State
requirements). We expect that in most cases, the Region will be
able to work with the State to resolve the inconsistency. If,
however, the State issues the final permit without including the
requirement commented on by EPA, the Agency has the right to
enforce the State law requiring that condition pursuant to 40 CFR
Section 271.19(e)(2).
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-2-
The comment letters must be written and submitted to the State
during the comment period of the draft permit in order for EPA to
preserve its right in the future to take action to enforce the
State requirements that the draft permit fails to adequately
address. The letter also serves to advise the State as to how EPA
believes the permit could be modified so that a facility complying
with the permit also would comply with the identified State
requirements. If a State drafts a permit and EPA does not submit a
comment letter pursuant to Section 271.19, then, after the final
permit is issued, EPA is estopped from taking an enforcement action
against that facility for a violation of a requirement that is not
a condition of the permit (even if the facility is in violation of
State law). This is commonly referred to as "permit-as-shield,"
pursuant to 40 CFR Section 270.4(a)..
The comment letters must be carefully worded because EPA's
position is that the letters are not final agency actions, but
merely preliminary interpretations of State law. The letters do
not by themselves impose any requirements on the facility. The
sole effect of the letter, with one possible exception noted below,
is to preserve EPA's ability to enforce underlying State
requirements against State-issued permit holders. Thus, the
letters are merely preliminary enforcement interpretations, not
rising to the level of even a notice of violation.
It is, therefore, important to remember several things in
drafting the comment letters. First, EPA is not enforcing the
comments (on the permit) contained in the comment letter. EPA, in
issuing a Section 3008(a) action subsequent to permit issuance,
will be enforcing the State laws that are identified in the letter
which are equivalent to the Federal laws.1
Second, because EPA will be enforcing State laws, the comment
letters should cite the equivalent authorized State laws. The
letters should indicate why EPA believes that the facility would
not comply with the State requirement even if the facility complies
with the terms of the draft permit.
Recent judicial and administrative decisions support the
position that EPA can enforce State law. See Conservation Chemical
Co. of Illinois v. EPA. 660 F. SUPP. 1236 fN.D. Ind. 19871. and In
the Matter of CID-Chemical Waste Management of Illinois. Inc.
(Appeal No. 87-11) (indicating that authorized State programs,
including the regulations issued to implement such programs, are
requirements of Subtitle C of RCRA within the meaning of Section
3008(a)(1), and that EPA retains authority to enforce such
requirements pursuant to Section 3008(a)(2)).
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-3-
Third, in the comment letter, EPA should not cite to 40 CFR
Part 265 and authorized equivalent requirements. Interim status
requirements do not apply to permit holders and the potential
violations identified in the comment letter can be only violations
of applicable permit-holder requirements.
Fourth, EPA's action in preserving its enforcement authority
may be subjected to legal challenge. We are currently awaiting the
outcome of such a case in Region V, which may affect many of our
positions on the scope and applicability of the Section 271.19
regulations.2 Thus, EPA should compile at the time the letter is
drafted sufficient information to form an administrative record on
which to defend EPA's preliminary interpretation of State
requirements.
Although the letter itself is preliminary, related actions may
have definite impacts on the facility and be ripe for review.
Examples of such actions would be the issuance of a compliance
order premised upon retained enforcement authority pursuant to the
Section 271.19 letter, and off-site policy determinations under
Superfund for violations of State regulations identified in the
Section 271.19 letter. The Section 271.19 letter would become part
of the record for these related actions. Furthermore, once EPA has
taken one of these actions, the owner or operator of the affected
facility may succeed in arguing that the Section 271.19 letter
itself is ripe for review. Again, EPA will be in a better position
to defend against these types of challenges if it has prepared a
record to support its finding that the permit is inconsistent with
underlying State law.
In that case, Waste Management of Illinois, Inc. (WMI) has
filed a motion in U.S. District Court seeking a declaratory
judgment that EPA cannot impose conditions on the facility pursuant
to a Section 271.19 comment letter and could not take an
enforcement action based upon comments in such a letter. The suit
also claims that the Section 271.19 procedure violates WMI's rights
to due process under State and Federal law. EPA has not yet taken
an enforcement action, although Region V has written a letter
commenting on the draft permit, pursuant to Section 271.19. The
State responded by providing a contrary interpretation of State
requirements and by issuing the permit containing the terms of the
draft. EPA has claimed that WMI's challenge of EPA's potential
exercise of enforcement authority to enforce State law after
comment pursuant to Section 271.19 is not ripe for judicial review,
and may not be ripe until EPA has initiated an enforcement action
against WMI.
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-4-
In the off-site policy example, a Section 271.19 letter may be
needed to establish that a facility is ineligible to receive wastes
under the off-site policy. If a facility is in compliance with its
permit and no longer subject to interim status requirements,
technically no violations can be enforced by EPA at the facility
even though the facility may have been in violation of interim
status requirements and may currently be in violation of state
permitting requirements. Thus, if a 271.19 letter is not
submitted, the facility may be eligible to receive off-site waste
even though it is in violation of State permitting requirements
(because it is in compliance with its permit).
Because of impacts on future enforcement cases and off-site
determinations, the Region should, when reviewing draft permits,
determine whether the permit conditions are consistent with the
underlying State permit regulations, and file a timely comment
letter where inconsistencies occur. After filing the comment, the
Region should review both the final permit and any actions taken by
the facility to comply with the identified underlying permit
requirements, and should keep these reviews in mind when
considering enforcement and off-site policy decisions and the
facility's transition from interim to permitted status.
The above are preliminary considerations on comment letters
and enforcement actions pursuant to 40 CFR Section 271.19. We will
keep the Regions advised of any upcoming changes or new insights
resulting from a decision in the WMI case. In the meantime, if you
have any questions, please call me or contact Nancy Parkinson
(OWPE, 475-9325) or Josh Sarnoff (OGC, 382-7706).
cc: Regional Counsels
Regions I-X
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Section 6
Financial Responsibility
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FINANCIAL RESPONSIBILITY
en
w
O
t-3
CTl
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Section 6
(Documents that
- Financial Responsibility - Table of Contents
appear in their entirety in this Section of the Compendium)
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
8S88SSS3883SS88S
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
^^^^
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
mmg%tg
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
Guidance on Developing Compliance Orders Under Section 3008 of RCRA;
Enforcement of the Financial Responsibility Requirements Under Subpart H of 40
CFR Parts 264 and 265
10/06/82
OSWER
Violation Classification
Enforcement of Liability Requirements for Operating RCRA Treatment, Storage, and
Disposal Facilities
9901.0
10/29/86
OSWER/OECM
Enforcement of Financial Responsibility Requirements for RCRA Treatment, Storage,
and Disposal Facilities That Are Closing
9901.2
04/20/87
OSWER
Enforcement of Applicable RCRA Regulations at Facilities With Pending Delisting
Petitions
07/20/87
OWPE
OSW
Ground Water
Permitting
-------
MEMORANDUM 10/6/82
SUBJECT: Guidance on Developing Compliance Orders Under Section
3008 of the Resource Conservation and Recovery Act;
Enforcement of the Financial Responsibility
Requirements Under Subpart H of 40 CFR
Parts 264 and 265
FROM: Robert M. Perry
Associate Administrator
for Legal and Enforcement Counsel
Rita M. Lavelle
Assistant Administrator
for Solid Waste and Emergency Response
TO: Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Air and Hazardous Materials Division Directors
Regions I-X
BACKGROUND
Section 3004(6) of the Resource Conservation and Recovery
Act, as amended, (RCRA) requires EPA to establish financial
responsibility standards applicable to owners and operators of
hazardous waste management facilities as may be necessary or
desirable to protect human health and the environment. EPA has
concluded that, at a minimum, financial responsibility
requirements are necessary or desirable to assure (1) that funds
will be available for proper closure of facilities that treat,
store or dispose of hazardous waste and for post-closure care of
hazardous waste disposal sites; and, (2) that a pool of funds
will be available during the operating lives of facilities from
which third parties can seek compensation for injuries to people
and property resulting from operation of such facilities. The
need for adequate financial responsibility for closure and post-
closure care has been well documented by the many instances of
environmental damage and risks to human health resulting from
failure by owners and operators to properly provide for closure
and post-closure care. (Preamble to 40 CFR Parts 264 and 265,
Subpart H—Financial Requirements, 42 Federal Register 2821,
January 12, 1981).v
Under revised interim final regulations of April 7, 1982
(47 Federal Register 15032-15074) and April 16, 1982 (47 Federal
Register 16544-16561), owners and operators of hazardous waste
-' Owners and operators of interim status facilities were
required to prepare their closure and post-closure care plans and
cost estimates by May 19, 1981. Owners and operators of new
facilities are required to submit such plans and estimates with
their permit applications.
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management facilities must provide financial assurance for three
general purposes: facility closure ("closure"), under 40 CFR
§§264.142 and 143 or 40 CFR §§265.142 and 143; post-closure
monitoring and maintenance ("post-closure"), under 40 CFR
§§264.144 and 145 or 40 CFR §§265.144 and 145; and, liability
coverage for claims arising from accidental occurrences that
cause bodily injury to persons or property damage ("liability
insurance"), under 40 CFR §264.147 or 40 CFR §265.147.-'
Financial assurance for closure (required of all owners or
operators) and for post-closure care (required only of owners or
operators of land disposal facilities), for both interim status
and permitted facilities, must be provided by one of the
following mechanisms: a trust fund, a surety bond guaranteeing
payment into a trust fund, a letter of credit, closure and/or
post-closure insurance, a financial test or a corporate
guarantee. Permit holders have the additional option of
obtaining a surety bond guaranteeing closure or post-closure
performance. Owners or operators of interim status facilities
may not exercise that option. Any owner or operator may use any
of the financial mechanisms to cover both closure and post-
closure care under 40 CFR §§234.146 and 265.146; provide coverage
for more than one facility on one instrument or provide assurance
for one facility by using more than one instrument under 40 CFR
§§264.145 and 265.145.
The liability requirements may be met by either obtaining a
commercial insurance policy or by meeting a financial test for
liability coverage. Owners and operators of all treatment,
storage, and disposal facilities must comply with the requirements
for coverage for sudden accidental occurrences. Owners and
operators of surface impoundments, landfills, and land treatment
facilities must comply with the requirements for coverage for
nonsudden accidental occurrences.
Under 40 CFR §§264.149 and 265.149, any of the requirements
may also be met, in whole or in part, by showing compliance with
State required mechanisms which provide equivalent financial
assurance or liability coverage. An owner or operator may also
satisfy financial assurance or liability coverage requirements by
showing that the State has assumed responsibility for these
obligations in accordance with 40 CFR §§264.150 or 265.150.
Implementation of these financial responsibility
requirements has been one of the most complex and difficult tasks
in the Subtitle C regulatory program. Subpart H was originally
proposed on December 18, 1978, (43 Federal Register 58995,
59006-7) and published in interim final form on January 12, 1981.
(46 Federal Register 2821-2829, 2851-2866, and 2877-2888). The
closure and post-closure assurance requirements, republished in
-' Under 40 CFR §§264.140(c) and 265.140(c), States and the
Federal government are exempt from all of these Subparts
discussed above.
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revised interim final form with amendments, on April 7, 1982,
(47 Federal Register 15032-74, 1982) became effective on July 6,
1982. The liability coverage requirements, republished in
revised interim final form with amendments, on April 16, 1982,
(47 Federal Register 16544-16561) were effective July 15, 1982.
Compliance dates for meeting the nonsudden accidental liability
coverage requirements are dependent upon the amount of the annual
sales or revenues of the owners or operators according to a
phased schedule. If an owner/operator has annual sales greater
then or equal to $10 million, he is required to provide liability
coverage by January 15, 1983; those with sales between $5 and $10
million, by January 15, 1984; and all others by January 15, 1985.
RESPONSE TO VIOLATIONS
When violations of the financial responsibility requirements
are detected, enforcement should proceed in accordance with
existing guidance on developing compliance orders under Section
3008 of RCRA. (See. July 7, 1981, Memorandum from the Acting
Director, Office of Waste Programs Enforcement to the Regional
Administrators, entitled "Guidance on Developing Compliance
Orders Under Section 3008 of the Resource Conservation and
Recovery Act.") Classification of violations under the scheme
provided in that guidance, however, covered only the interim
status requirements in effect at that time, with the intention of
supplementing that guidance when other RCRA Subtitle C
requirements became effective. Accordingly, that guidance was
supplemented on January 22, 1982, to cover the ground water
monitoring requirements at interim status facilities which became
effective on November 19, 1981. (See, Memorandum from the Acting
Assistant Administrator for Solid Waste and Emergency Response
and the Enforcement Counsel to the Regional Administrators, et
al., entitled "Guidance on Developing Compliance Orders Under
Section 3008 of RCRA; Enforcement of Ground Water Monitoring
Requirements at Interim Status Facilities.")
The purpose of this memorandum is to further supplement the
existing guidance by providing guidance on classifying violations
of the financial responsibility requirements and on issuing
compliance orders in accordance with the July 7, 1981,
memorandum.
Class I Violations
Class I violations are those violations that pose direct and
immediate harm or threats of harm to the public health or the
environment. Because they do not relate to the day to day
physical operation of the facility, a superficial examination of
the face of the financial responsibility requirements could lead
to the erroneous conclusion that violations of these requirements
are "mere paper violations." Unlike many of the Subtitle C
regulations which require paperwork to confirm a particular
action of the owner or operator, the financial requirements are
implemented solely through the paperwork itself. For example, a
trust fund is implemented when a trustee and an owner or operator
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sign the trust agreement. Failure to execute that document
results in the failure to have financial assurance. Furthermore,
failure to word the trust instruments as required in the
regulations might appear inconsequential when, in fact, even a
slight alteration of the language could change the meaning and
intent of the instrument so that it would no longer comply with
the regulation.
Therefore, since failure to provide and maintain adequate
financial resources to assure proper closure and post-closure
care and liability coverage will pose direct, immediate and
continuing harm or threats of harm to the public health or the
environment, violations of most of the requirements in Subpart E
will constitute Class I violations. Specifically, violations of
those requirements which relate to establishing and maintaining
adequately funded financial assurance mechanisms are Class I
violations which should ordinarily be addressed by issuing a
Section 3008 Compliance Order.
Many of the requirements for one type of financial
instrument also apply to other instruments. The following list
of Class I violations is not exhaustive. It is intended to give
examples of violations which can be applied to other instruments,
both closure and post-closure, and, in may cases, for both 40 CFR
Part 264 and 265 regulations.
• Failure to establish financial assurance for closure and
post-closure care as required under §§264.140, 143, and 145;
• Failure to use the exact wording required for the
financial assurance option chosen, e.g.. trust agreements as
specified in §264.143(a) (2), §264.145(a) (2), §264.151(a) (1) ;
• Failure to send an originally signed duplicate of
financial instrument to the RA, e.g.. for closure using the trust
agreement as specified in §264.143(a)(1);
Failure to submit financial assurance instruments to the
RA, e.g.f surety bonds for post-closure under §§264.145(b)(1) and
Failure to establish a stand-by trust fund when another
financial instrument is chosen, e.g.. for closure using a surety
bond under §264.143(b)(3);
Owner or operator canceling surety bond without RA's
written consent under §264.143(b)(9) or §264.143(c)(9);
Failure to increase the amount of the letter of credit to
the current closure cost estimate and/or not obtaining alternate
financial assurance under §264.143(d)(7);
• Obtaining closure insurance with an insurer who is either
unlicensed or ineligible to provide insurance as an excess or
surplus lines insurer, as required under §264.143(e)(1);
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• Failure to pay insurance premium causing receipt by RA of
notice of cancellation of liability insurance policy under
§264.143(6) (6) ;-'
Failure to submit to RA a letter from the owner's or
operator's chief financial officer, a copy of the independent
CPA's report and the special report from the CPA as required to
meet the financial test as specified in §264.143(f)(3);
• Failure to notify RA when owner or operator no longer
meets the financial test under §264.143(f)(6);
• Failure to provide alternate financial assurance under
§264.143(f)(7);
Using multiple financial mechanisms which provide for
less than the amount equal to the current closure cost estimate
under §264.143(g);
• Failure to submit information required on multiple
facilities covered by one financial mechanism under §264.143(h);
• Failure to notify RA by certified mail of commencement of
voluntary or involuntary bankruptcy proceedings under
§264.148(a);
• Failure to obtain liability insurance for sudden
accidental occurrences as specified under §264.147(a);
• Failure to submit to the RA the Hazardous Waste Facility
Liability Endorsement or certificate of insurance as specified in
§264.147(a);
• Failure of owner or operator of a surface impoundment,
landfill or land treatment facility to obtain liability coverage
for nonsudden accidental occurrences as specified in §264.147(b).
Class III violations17
Class III violations are those procedural or reporting
violations which, in themselves, do not pose direct short-term
threats to the public health or environment. The Agency's usual
-' The regulation states that such violation is significant
"warranting such remedy as the RA deems necessary." The
regulation goes on to state that the "violation will be deemed to
begin upon receipt by the RA of a notice of future cancellation,
termination or failure to renew due to nonpayment. . .rather than
upon the date of expiration" (emphasis added) .
-' Class II violations are, of course, inappropriate because
they involve noncompliance with specific requirements mandated by
the statute itself and for which implementing regulations are not
required.
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response to this type of violation is the issuance of a letter of
warning. Some examples of Class III violations are as follows:
• Timing requirements where such violation does not lead to
the endangerment of human health or the environment such as the
delivery of a duplicate trust agreement to the RA where such
delivery is made 55 rather than 60 days before hazardous waste is
first received at a new facility under §264.143(a)(1);
• Payment to trust fund is made between 30 and 60 days
after anniversary date under §264.143(a)(3) (i) ;
Payment to increase penal sum of surety is made, but more
than 60 days after closure cost estimate is increased under
§264.143(c);
• Delivery to RA of trust agreement with photocopied
signature rather than original signature under §264.143(a)(1);
Failure to include with letter of credit a letter from
the owner or operator providing required information under
§264.143(d)(4).
Consideration of Situation-Specific Factors in Determining the
Appropriate Class of Violation
As is the case with Section 3008 orders generally (see. July
7, 1981, memorandum, p.4) questions may arise as to whether, in a
particular set of circumstances, a violation should be considered
a Class I or Class III violation. For example, habitually late
remittances of trust fund payments required under
§264.143(a)(3)(i) should be considered a Class I violation.
Another example of a Class I violation is when the duplicate of
the financial agreement is delivered to the RA after hazardous
waste has been received at a new facility. That owner or
operator would be considered to be without financial assurance
for the period of time before the duplicate was received by the
RA. If, however, the instruments were effective before hazardous
waste was received at the facility, the violation would, more
appropriately be considered a Class III.
In addition, whether a particular violation is de minimis
should also be considered. For example, failure to make proper
trust fund payments constitutes a violation of 40 CFR §265.143
which is a Class I violation. If, however, one annual payment is
made five days later than the required date or the amount paid is
only minimally deficient, and the owner or operator has
previously made the proper payments on time, a warning letter
(rather than an administrative order) should be issued.
If you have any questions regarding this guidance or
application of the guidance to a specific fact situation, please
contact Amy Schaffer, Office of Waste Programs Enforcement, OSWER
at FTS 382-4826 or Ann Strickland, Office of Enforcement
Counsel/Waste, OLEC at FTS 382-3087.
-RETYPED FROM THE ORIGINAL-
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT 2 9 1986
MEMORANDUM
SUBJECT: Enforcement of Liability Requirements for Operating
CRA Treatent, /Storage, and Disposal Facilities
:
FROM: /pXwinstort Porter, Assistant Administrator
)ffice of Solira Waste and Emergency Response
x- W. _\.rv t^.,, V
Thomas L. Adams Jr., Assistant Administrator
Office of Enforcement and Compliance Monitoring
TO: Waste Management Division Directors
Regional Counsels
Regions I - X
This memorandum clarifies the Environmental Protection Agency's
(EPA's) approach to enforcing regulatory requirements for financial
responsibility under the Resource Conservation and Recovery Act
(RCRA) at operating treatment, storage, and disposal facilities.
This memorandum addresses enforcement against facilities that did
not lose interim status for failure to make the required
certifications on November 8, 1985.
Under the RCRA regulations, an owner or operator of a hazardous
waste treatment, storage, or disposal facility, or a group of such
facilities, must demonstrate financial responsibility for bodily
injury and property damage to third parties caused by sudden
accidental occurrences arising from operations of the facility.
An owner or operator of a surface impoundment, landfill, or land
treatment facility, or group of such facilities, must also demon-
strate financial responsibility for bodily injury and property
damages to third parties caused by nonsudden accidental occurrences
(40 CFR SS264.147 and 265.147).
EPA regions and states have requested guidance on how to
enforce these regulations at land disposal facilities that continued
operating after November 8, 1985. EPA will continue to enforce
these regulations. There is no exception to, or broad waiver by
EPA or authorized state programs of, the liability insurance
requirement.
-------
-2-
Therefore, operating land disposal facilities as well as
other hazardous waste treatment, storage, or disposal facilities
that have lost their insurance coverage and/or cannot demonstrate
financial responsibility for the liability requirement are subject
to enforcement for violations of this regulation. 1
Regions and authorized states should initiate formal enforce-
ment against significant noncompliers, defined in the Strategic
Planning and Management System as those owners or operators of a
land disposal facility with major violations of ground-water
monitoring, closure, post-closure, and financial responsibility.
The FY 1987 RCRA Implementation Plan (RIP) should be used to
determine the order in which enforcement action should be taken
against facilities that have no liability insurance. The RIP
establishes a framework consisting of two components: a set of
high priority activities and a scheme for categorizing other
handlers into relative priority groups. Enforcement personnel
are encouraged to consider various site specific factors while
focusing on significant noncompliers and high priority activities.
Further guidance about how individual facilities should be
addressed under our priority system can be found in the Enforce-
ment Response Policy.
The terms of the final order developed when enforcement
action is taken will depend upon the current situation of the
operating facility and its overall compliance status. Generally,
the facility may be given from one to six months to come into
compliance with the financial responsibility requirements. The
time should vary depending upon individual circumstances. For
example, if a facility has an application pending with an
insurance underwriter, we could give the facility enough time
to have the application processed. Conversely, a facility with
a poor compliance history could be an appropriate candidate for
a limited period of time (one to three months). If the facility
owner or operator does not obtain insurance in the timeframe
prescribed in the order, the facility should be compelled to
close. Of course, other violations at the facility must be
addressed, and necessary time periods and appropriate penalties
for lack of liability coverage as well as other violations
considered.
We encourage enforcement personnel to require the facility
to have an alternative mechanism (i.e., a letter of credit) to
assure payment of liability judgments or settlements on a case-
by-case basis for this interim period of time prior to compliance
1 The regulations do provide, however, for adjustments in the
required level of financial responsibility, on risk-based consider*
ations. 40 CFR §§264.147(d), 265.147(d). The unavailability
of insurance may not be cited as a reason to adjust financial
responsibility levels.
-------
-3-
or closure. We stress that this is an interim action only. The
Agency may amend the liability regulations within the next year
to include the use of alternate mechanisms, which would offer a
more permanent solution to some companies. The ultimate decision
regarding the remedy depends upon the status of the facility and
the judgment of the enforcement personnel.
The regulatory change that allows a corporate guarantee to
be used became effective September 11, 1986. If a State has a
corporate guarantee under an authorized program it can be used
at this time. The corporate guarantee will not be effective in
the authorized States that have not adopted this mechanism by
legislation or regulation until they revise their programs accord-
ingly. If an authorized state is in the process of amending its
regulation to allow the use of the corporate guarantee, it may
allow a firm to use that mechanism as an interim remedy in an
order for a period not to exceed one year. Thereafter, unless
the State has made substantial progress toward adoption of a
final rule allowing the corporate guarantee and submission of it
to EPA for authorizaton, the facility should be closed.
The states can also consider the regulatory authority that
allows them to assume responsibility for the liability requirement
(§264.150) for the facility whose capacity is critically needed,
or a situation where the state views the risk as minimal and wishes
to assume this responsibility.
It is also imperative that closure and post-closure plans
and cost estimates be carefully reviewed at this time. Even if
the facility is not compelled to close, it will still be necessary
to include additional requirements in the final order if the
owner/operator has not adequately addressed closure and post-closure
activities and/or cost estimates of closure and post-closure care.
If you have any questions about this policy, or wish additional
information or assistance, please call Jackie Tenusak, Office
of Waste Programs Enforcement (OWPE) (475-8729) or Pamela Sbar,
Office of Enforcement and Compliance Monitoring (OECM) (382-3096).
We are also planning to have another conference call for Subpart
H contacts and Regional and State enforcement personnel to discuss
this policy.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
9901.2
APR2019ST
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Enforcement of Financial Responsibility Requirements
for RCRA Treatment, Storage, and Disposal Facilities
That/Are Closing
J
cfh
.
FROM: J. Wlnstcfh Porter,
Assistant Administrator
TO: Waste Management Division Directors
Regions I - X
This memorandum describes the Environmental Protection Agency's
approach to enforcing regulatory requirements for both financial
assurance, for closure and post-closure care and liability qoverage
under the Resource Conservation and Recovery Act (RCRA) at treatment,
storage, and disposal facilities that are- closing.
A. Closure and Post-Closure Financial Assurances
1. Regulatory Requirements
Facilities are required under 40 CFR §265 Subpart H to
establish financial assurance during their operating life for
closure and post-closure care (§§265.143 and 265.145). Authorized
states have established equivalent or more stringent requirements.
In order to implement this regulation. Regions and states must
review closure and post-closure plans for adequacy during the
operating life of the facility to ensure that the amount of the
financial assurance instruments is adequate. Close review of
operating facilities will limit situations where facilities are
in closure but have not established adequate financial assurance
for closure or post-closure. When a facility closes, the Agency's
goal is to ensure that closure is completed in an environmentally
sound manner. In order to accomplish this, it is imperative that
we carefully review closure and post-closure plans, cost estimates,
and financial assurances when we know that the facility will be
closing. If the owner or operator has not adequately addressed
closure and post-closure activities and/or cost estimates and
financial assurance for closure and post-closure, this must be
addressed before closure plan and post-closure plan approval.
-------
9901.2
-2-
2. Economically Marginal Facilities Without Financial
Assurance
Generally, violations of financial assurance requirements
should be addressed by a formal enforceme.nt action, with penalties.
In the situation where a firm is "economically marginal," strict
enforcement of the regulations, i.e., establishing financial
assurance during the operating life of the facility, could drive
such a company into bankruptcy with no guarantee that necessary
corrective action will be assumed by Federal or state Superfund
programs. It may be appropriate to allow economically marginal
firms that did not establish financial assurance during their
operating lives to meet their closure and/or post-closure obliga-
tions on a more flexible schedule. Regions and states should
follow the principles outlined below when considering such an
arrangement:
(1) , Any agreement must be formalized in an order. Owner/
operators should be informed that failure to adhere to the
terms of the order will subject them to further enforcement
action.
(2) A firm must supply information to substantiate its financial
status and demonstrate legitimate^inancial need. Please note
that-the burden of proof tn establishing financial need lies
with the owner or operator, who should volunteer the information
in this situation. Evaluation of company financial strength
should be made by qualified personnel. _V
(3) A more flexible pay-in period for a trust fund should only
be considered when all other options for financial assurance
have been exhausted, A firm should demonstrate that a flexible
pay-in period will substantially increase its ability to pay
closure and post-closure costs.
(4) Alternate financial mechanisms or a combination of mechanisms
(see §265.143(f)) should be considered, as well as other options,
such as low interest loans for closure or post-.closure costs
available through the Small Business Administration.
(5) The length of time allowed to pay costs of closure or
post-closure care using an installment plan schedule must be
as short as the financial situation of the firm will allow.
The actual rate of funding should be determined using ABEL or
cash flow projections.
If Regions and states require assistance with financial evaluations
they should consider the following: 1) Contractor assistance
is available for this purpose; please inform your RCRA enforcement
regional coordinator if you need assistance. 2) The computer
program "ABEL" can also be used to determine the ability of a
firm to pay closure costs, post-closure costs, and/or penalties.
-------
-3- 9901,2
B. Liability Coverage
Under the RCRA regulations, an owner or operator must contin-
uously provide liability coverage for a facility as required until
the certification of closure of the facility, as specified in
§§-264.115 and 265.115, is received by the Regional Administrator.
Authorized states' regulations include equivalent or more stringent
requirements.
The related memorandum, "Enforcement of Liability Requirements
for Operating Facilities," dated October 29, 1986, advises that an
operatinq interim status facility that cannot meet the liability
requirement is to be placed on a compliance schedule, and if it
does not comply in the time frame stated therein, must be compelled
to close. It must be recoqnized, however, that the situation
for closing interim status facilities without liability coverage
is very different from that of operatinq facilities without
liability coverage. While we may seek to compel a noncomplying
operating facility to close, this sanction is not meaningful at
a facility that is already closing.
• • J
We expect closing facilities to continue to make efforts to
obtai-n liability coverage. However, the closing universe subject
to liability requirements is diverse, and the ability of the
owners and operators of these facilities to satisfy liability
requirements varies. Enforcement personnel should consider the
circumstances of the closinq facility, without liability coveraqe
carefulTy. Closing facilities with violations of ground-water
monitoring, closure/post-closure or financial assurance require-
ments must be accorded higher priority than facilities whose
only violation is lack of liability coverage. In addition, when
considering the priorities of the program, enforcement personnel
may choose to defer enforcement action against a closinq facility
reqarding a violation of liability requirements. Finally, closing
facilities whose only violation is lack of liability coverage
will not be regarded as significant noncompliers for SPMS purposes.
There will be instances where formal enforcement actions
should be filed against closinq facilities for violations of
liability requirements, even if this is the facility's only
violation. For example, a facility's parent may be able to pass
the financial test for a corporate quarantee but may fail to submit
the corporate quarantee or may fail to continue an insurance
policy until certified closure. Once an enforcement action has
been initiated, we also encouraqe enforcement personnel to consider
requiring the noncomplying facility to have an alternative
mechanism (i.e., a letter of credit) to assure payment of liability
judgments. If the owner or operator aqrees to obtain an alternative
mechanism, the aqreement must be formalized in an order. It may
be appropriate under certain circumstances to include a penalty
for failure to comply with the liability requirement, as well as
appropriate penalties for other violations.
-------
9901-2
-4-
If you have a'ny questions about this policy, or wish additional
information or assistance, please call Jackie Tenusak, Office of
Waste Programs Enforcement (FTS 475-8729).
-------
OSWER Directive No. 9900.0-03
July 20, 1987
MEMORANDUM
SUBJECT:
FROM:
TO:
Enforcement of Applicable RCRA Regulations at Facilities
with Pending Delisting Petitions
Gene A. Lucero, Director
Office of Waste Programs Enforcement
Marcia E. Williams, Director
Office of Solid Waste
Waste Management Division Directors
Regions I, IV, V, VII, & VIII
Air & Waste Management Division Director
Region II
Hazardous Waste Management Division Director
Region III, VI & X
'Toxics & Waste Management Division Director
Region IX
The purpose of this memorandum is to restate Agency policy
regarding the enforcement of applicable RCRA regulations at hazardous
waste handlers that have pending delisting petitions. It has come to
our attention that some Regions and States may be allowing non-
compliance with some or all of the RCRA Subtitle C requirements
pending a decision on active delisting petitions. We are reaffirming
here that these wastes remain hazardous wastes and that they, and the
units in which they are managed, are subject to all applicable RCRA
regulations, including financial responsibility, groundwater
monitoring and closure requirements, until the delisting is officially
granted. In addition, facilities are still subject to the 1988 and
1989 statutory deadlines for permit issuance.
Retyped From The Original
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-2-
Sections 260.20 and 260.22 establish a petition process which
allows a facility to demonstrate that its waste, although captured by
the broad listings of Section 261 Subpart D, does not meet any
criteria under which the waste was listed, including the presence of
additional constituents. Decisions on waste delisting have always
been based on a chemical characterization of the waste itself and of
the processes generating that waste, not on facility design,
management practices or site conditions. Therefore, until a final
decision is made to grant the petition, the waste is hazardous and the
facility remains subject to enforcement of all applicable regulations
(including compliance with Subpart F groundwater monitoring
requirements). Facilities that are not in compliance with RCRA
regulations are subject to enforcement action.1
Concommitantly, facilities (excluding those with temporary or
informal exclusion) that had pending delisting petitions on November
8, 1985, were subject to the Loss of Interim Status (LOIS) provision
of the Hazardous and Solid Waste Amendments of 1984 (HSWA).
Facilities that failed to validly certify compliance with Subparts F
and H and submit a Part B application for an operating permit on or
before November 8, 1985 were required to cease operating their
hazardous waste land disposal units and submit a closure plan for
those units by November 23, 1985. Facilities with pending delisting
petitions that failed to retain interim status and continued to
operate after November 8, 1985, and/or failed to submit the required
closure plan are subject to.enforcement actions under Section 3008 of
RCRA.
1 Facilities whose only waste was subject to a temporary or
informal exclusion were not required to meet Part 265 standards during
the effective time of the exclusion. However, all temporary and
informal exclusions that had not previously been acted on expired by
statute on 11/8/86 (Section 3001 (f) (2)(8)). Facilities that had
either a temporary or informal exclusion were in one of four
categories on 11/8/86: (1) the final delisting was granted and that
waste is no longer subject to regulation under RCRA; (2) the petition
was denied when, after repeated requests from the Agency, the facility
failed to provide additional information for the petition; these
facilities had to be in compliance with Part 265 regulations
immediately; (3) the completed petition was denied based on the merits
of the petition (i.e., the waste was determined to be hazardous);
these facilities had six months from the date of publication of the
denial in the Federal Register to come into compliance with Part 265
standards; or (4) the exclusion expired by statute; these facilities
petitions moved back into the standard delisting process and the
facilities were immediately subject to all applicable RCRA
requirements.
Retyped From The Original
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-3-
Attachment 1 is a listing of all pending delisting petitions,
broken down by Region. Please assure that these facilities are in
full compliance with all applicable RCRA regulations. If you have any
questions regarding the iteration of this policy, please call Steve
Heare at 382-2207.
cc: Elaine Stanley
Bruce Weddle
RCRA Branch Chiefs, Regions I-X
Retyped From The Original
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REGION I
PETNUM PETNAME
0570 GENERAL ELECTRIC COMPANY
0607 HONEYWELL, INC./SKINNER VALVE DIV.
0685 LIGHT METALS COLORING COMPANY, INC.
CITY
BRIDGEPORT
NEW BRITAIN
SOUTHINGTON
ST
CT
CT
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REGION II
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PETNUM PETNAME
0315 DIGITAL EQUIPMENT CORP DE PUERTO RICO
0435 UNION CARBIDE CORPORATION
0503 YABUCOA SUN OIL COMPANY
0505B KEYMARK CORPORATION
0547 BETHLEHEM STEEL CORP
0602 BERLEX LABORATORIES, INC.
0603 BETHLEHEM STEEL CORPORATION/LACKAWANNA PLANT
0658 ..UNION CARBIDE CARIBE, INC. (UCCI)
0667 CHEVRON U.S.A. INC. (DRAFT)
0676 BENDIX AEROSPACE/BENDIX FLUID POWER DIVISION
0687 STEPAN COMPANY
0694 YABUCOA SUN OIL COMPANY (SAMPLING PLAN)
0697 EAGLE ELECTRIC MANUFACTURING COMPANY, INC.
CITY ST
SAN GERMAN PR
TONAWANDA NY
YABUCOA PR
FONDA NY
SOUTH LACKAWANNA NY
WAYNE NJ
LACKAWANNA NY
PENUELAS , PR
PERTH AMBOY NJ
UTICA NY
FIELDSBORO NJ
YABUCOA PR
LONG ISLAND CITY NY
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REGION III
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(D
PETNUM PETNAME
0368 WEIRTON STEEL CORP.
0373 MERCK & CO., INC.
0377 MERCK & COMPANY, INCORPORATED
0440 UNION CARBIDE CORPORATION
0528 KOPPERS COMPANY, INCORPORATED
0598 HARSCO CORPORATION
0613 ARMCO/BUTLER WORKS
0617 BETHLEHEM STEEL CORP. STEELTON PLANT
0639 SHARON STEEL
0650 KELLER EXTRUSIONS OF VIRGINIA
0672 G.R.O.W.S., INC.
0673 ALLIANCE OF TEXTILE CARE ASSOC.
0679 UNION CARBIDE CORPORATION/HOLZ IMPOUNDMENT
0681 BETHLEHEM STEEL CORPORATION
0688 ROANOKE ELECTRIC STEEL CORPORATION
0691A STOREYS TRANSPRINTS, INC.
069IB STOREYS TRANSPRINTS, INC.
0693 WHELLING-PITTSBURGH STEEL CORPORATION
CITY ST
WEIRTON WV
ELKTON VA
ELKTON VA
SISTERSVILLE WV
FOLLANSBEE WV
YORK PA
BUTLER PA
STEELTON PA
SHARON PA
MILFORD VA
MORRISVILLE PA
WASHINGTON DC
SOUTH CHARLESTON WV
JOHNSTOWN PA
ROANOKE VA
HARRISONBURG VA
COLONIAL HEIGHTS VA
WHEELING WV
H-
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REGION IV
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PETNUM PETNAME
0316 GENERAL ELECTRIC COMPANY
0583 EMCO, INC.
0587 GENERAL ELECTRIC COMPANY
0590 BOMMER INDUSTRIES, INC.
0622 O&S PLATING CO.
0635 NAVAL CONSTRUCTION
0636 ETC/MOLEX INCORP
0640 , JOHN BOYLE & COMPANY, INC.
0651 FAULTLESS HARDWARE DIVISION/AXIA ENTERPRISE
0657A UNIVERSAL FASTENERS CENTERVILLE FACILITY
0657B UNIVERSAL FASTENERS LAWRENCEBURG FACILITY
0662 GOODYEAR TIRE AND RUBBER COMPANY
0666 TENNESSEE EASTMAN COMPANY (TEC)
0668 VIRGINIA CHEMICALS INCORPORATED
0669 VIRGINIA CHEMICALS INCORPORATED
0670 GENERAL ELECTRIC COMPANY
0675 REYNOLDS METALS COMPANY
0678 VAW OF AMERICA INCORPORATED
0682 MASON CHAMBERLAIN INC/ARMY AMMUNITION PLANT
0690 BFG INTERMEDIATES COMPANY INC.
0699 NORTH AMERICAN PHILIPS CONSUMER ELECT. CORP.
0700 ASHLAND PETROLEUM COMPANY
CITY
HENDERSONVILLE
EAST GADSDEN
FLORENCE
LANDRUM
GLEASONT
GULFPORT
ST. PETERSBURG
STATESVILLE
HOPKINSVILLE
CENTERVILLE
LAWRENCEBURG
RANDLEMAN
KINGSPORT
LEEDS
BUCKS
LOUISVILLE
SHEFFIELD
ST. AUGUSTINE
NSTL BASE
CALVERT CITY
KNOXVILLE
ASHLAND
ST
NC
AL
SC
SC
TN
MS
FL
NC
KY
TN
KY
NC
TN
SC
AL
KY
AL
FL
MS
KY
TN
KY
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REGION V
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REGION VI
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PETNUM PETNAME
0261 TEXACO USA
0286 BELL HELICOPTER TEXTRON, INC.
0344 LAKE CITY ARMY AMMUNITION PLANT
0351 BLOOMFIELD REFINING COMPANY
0396 EXXON COMPANY, BATON ROUGE REFINERY
0409 TEXAS EASTMAN COMPANY
0453 TEXACO INCORPORATED
0486 > UNION OIL COMPANY OF CALIFORNIA
0545 IBM CORPORATION
0563 KOPPERS CO. HOUSTON FACILITY
0571 GENERAL ELECTRIC COMPANY
0606 USEPA COMBUSTION RESEARCH FACILITY
0625 UNION OIL COMPANY OF CALIFORNIA
0648 LAKE CITY ARMY AMMUNITION PLANT
0649 TEXAS EASTMAN COMPANY (DRAFT)
0654 KAWNEER COMPANY, INC.
0660 HOLLOMAN AIR FORCE BASE
0684 U.S. EPA RELEASES CONTROL BRANCH
0692 CELANESE CHEMICAL COMPANY, INC/BAY CITY PLANT
CITY
PORT NECHES
FORT WORTH
INDEPENDENCE
BLOOMFIELD
BATON ROUGE
LONGVIEW
EL PASO
NEDERLAND
AUSTIN
HOUSTON
SHREVEPORT
JEFFERSON
NEDERLAND
INDEPENDENCE
LONGVIEW
SPRINGDALE
HOLLOMAN AFB
MCDOWELL
BAY CITY
ST
TX
TX
MO
NM
LA
TX
TX
TX
TX
TX
LA
AR
TX
MO
TX
AR
NM
MO
TX
-------
REGION VII
PETNUM PETNAME
0532 JOHN DEERE COMPONENT WORKS
0543 VIKING PUMP DIVISION\HOUDAILLE INDUSTRIES
0578 U.S. NAMEPLATE COMPANY INC.
0616 PUEBLO CHEMICAL & SUPPLY COMPANY
0618B MONROE AUTO EQUIPMENT/DIV. OF TENNECO AUTO
0624 SELECT PRODUCTS CO./DIV. OF HALLMARK CARDS
0641 THERMEX ENERGY CORPORATION
0656 CLAY EQUIPMENT CORPORATION
CITY
WATERLOO
CEDAR FALLS
MOUNT VERNON
GARDEN CITY
COZAD
LEAVENWORTH
HALLOWELL
CEDAR FALLS
ST
IA
IA
IA
KS
NE
KS
KS
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REGION VIII
PETNUM PETNAME
0542 JIM'S WATER SERVICE
CITY
GILLETTE
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REGION IX
PETNUM PETNAME
0615 U.S. AIR FORCE - ENGINEERING & SERVICES
0677 ACME FILL CORPORATION
CITY
PACIFIC OCEAN
MARTINEZ
ST
CA
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REGION X
PETNUM PETNAME
0393 BOEING COMMERCIAL AIRPLANE CO.
0552 CHEVRON U.S.A. INC.
0588 BAYLINER MARINE CORPORATION
0620 BOEING COMMERCIAL AIRPLANE COMPANY
CITY
AUBURN
KENAI
ARLINGTON
AUBURN
ST
WA
AK
WA
WA
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Section 7
Groundwater
-------
GROUNDWATER
n
o
2
-------
Section 7 - Ground Water - Table of Contents
(Documents that appear in their entirety in this Section of the Compendium)
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
Guidance on Developing Compliance Orders Under Section 3008 of RCRA;
Enforcement of Ground Water Monitoring Requirements at Interim Status Facilities
01/22/82
OWPE
Administrative Orders/Administrative Authorities
Violation Classification
TITLE
DIRECTIVE
NO.
Ground Water Monitoring Requirements During Interim Status
01/27/82
OSW/OWPE ~ Office of Legal
Enforc. Counsel
Interim Status
Enforcing Ground Water Monitoring Requirements in RCRA Part B Permit Applications
9504.01-84
08/16/84
OECM
OSWER
Permitting
RCRA Ground Water Enforcement Strategy
9905.0
07/22/85
OSWER
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
&§3««
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
SSSSMSS
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
TITLE RCRA Ground Water Monitoring Compliance Order Guidance
DIRECTIVE NO. 9931.1
DATE EFFECTIVE/ nfl/m/ftS
ISSUED 08/01/85
SOURCE OWPE
OTHER
RELEVANT
SECTIONS
Administrative Orders/Administrative Authorities
Corrective Action
Interim Status
Permitting
Violation Classification
-------
Section 7 - Ground Water - Table of Contents
(Documents that appear in their entirety in this Section of the Compendium)
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
S3@9$8£SS$3£££$$@Si
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
ggxSSSsSSSi
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
asssssssss
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
RCRA Regulatory Status of Contaminated Ground Water
9481.00-6
11/13/86
OSW
Corrective Action
Permitting
Ground Water Monitoring at Clean Closing Surface Impoundment and Waste Pile Units
9476.00-14
03/31/88
OSWER
Corrective Action
Status of Contaminated Ground Water and Limitations on Disposal and Reuse
01/24/89
OSWER
OSW
Corrective Action
Applicability of Land Disposal Restrictions to RCRA and CERCLA Ground Water
Treatment Reinjection -- Superfund Management Review: Recommendation No. 26
9234.1-06
12/27/89
OSWER
Corrective Action
-------
Section 7 - Ground Water - Cross References
(Documents that are referenced under Ground Water but appear in the
Primary Section indicated)
TITLE
Enforcement of Applicable RCRA Regulations at Facilities With Pending
Delisting Petitions
DIRECTIVE NO.
SOURCE OWPE/OSW
PRIMARY
SECTION
^^^^S^SsS
TITLE
Financial Responsibility
RCRA Loss of Interim Status Enforcement Strategy
DIRECTIVE NO. 9930.0-1
SOURCE OWPE
PRIMARY
SECTION
Interim Status
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MEMORANDUM
SUBJECT;
FROM:
THROUGH:
Jan. 22, 1982
Guidance on Developing Compliance Orders under Section
3008 of the RCRA; Enforcement of Ground-Water
Monitoring Requirements at Interim Status Facilities
Douglas MacMillan, Acting Director
Office of Waste Programs Enforcement (WH-527-F)
Christopher Capper, Assistant Administrator
Office of Solid Waste and Emergency Response
William A. Sullivan, Jr.
Enforcement Counsel
TO: Regional Administrators
Regional Counsels
Air and Hazardous Waste Division Directors
Regions I-X
As you are aware, owners or operators of surface
impoundments, landfills and land treatment facilities for
management of hazardous waste were to have implemented a ground-
water monitoring program as specified in 40 C.F.R. §265.90 by
November 19, 1981. The Agency regards the ground-water
monitoring requirements to be a fundamental component of the
Federal hazardous waste management program. Enforcement of the
requirements will be a major new undertaking for the Agency.
Because of their innovative nature, broad scope and the variety
of circumstances to which they must be applied, it is important
that a consistent framework exist for the enforcement of the
requirements. This memorandum, developed in conjunction with
Office of General Counsel and Office of Solid Waste, provides
such a framework.
Background
Strategies for the enforcement of the ground-water
monitoring requirements must be designed to reflect a number of
considerations. The number and type of facilities subject to the
ground-water monitoring requirements present a wide variety of
monitoring problems and the enforcement policy must be flexible
enough to accommodate those differences. On the other hand,
enforcement policy should be generally consistent in its
application so that like situations will be treated in a similar
manner and the regulated community will have adequate notice of
what actions are expected of it. In addition, an enforcement
policy for the ground-water monitoring requirements must reflect
the possibility that, due to the comprehensive and innovative
nature of the program, substantial noncompliance may exist,
particularly during the initial months of the program.
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Inspections
During the next several months (at least until inspections
have been conducted at a representative number of the facilities
required to conduct ground-water monitoring) particular emphasis
should be placed on ground-water monitoring when conducting
compliance inspections. A determination should be made at each
facility as to the existence and proper operation of a ground-
water monitoring system. Compliance with the more specific
requirements of §265.90 should also be determined. The inspector
should discuss the §265.90 provisions with the owner/operator to
ensure that the owner/operator understands the requirements which
are applicable to that facility. All detected violations and
appropriate remedies should be recorded in the inspection report,
carefully explained to the owner/operator, and a copy of the
inspection report should be supplied to the owner/operator. In
addition, all facilities which are thought to require groundwater
monitoring but which do not submit quarterly reports should be
assigned a high priority for early inspection.
All required documentation (i.e., waiver demonstration,
assessment plan outlines, alternative monitoring system plans,
sampling and analysis plans, sampling results, reports and, after
November 19, 1982, assessment plans) should be examined. (If the
adequacy of these documents cannot readily be determined on the
basis of the site inspection, copies should be made for further
analysis at the office). Moreover, since failure by the Agency
to detect and respond to deficiencies could be interpreted as
approval, priority should be placed on the analysis of any waiver
demonstrations and assessment plans developed pursuant to
§265.90(c) and (d) respectively. In addition, any alternative
monitoring system plans submitted in accordance with 40 C.F.R.
§265.90(d) or waiver demonstrations voluntarily submitted by an
owner/operator should be reviewed and a response provided within
thirty days. The Office of Solid Waste will be providing further
guidance in the near future concerning evaluation of these
documents.
Response to Detected Violations
When violations are detected enforcement should proceed in
accordance with previously issued guidance on developing
compliance orders under §3008 of RCRA. (See July 7, 1981
Memorandum, Douglas MacMillan to the Regional Administrators,
Guidance on Developing Compliance Orders Under Section 3008 of
the Resource Conservation and Recovery Act). The classification
scheme contained in the 7/7/81 memo, however, addressed only the
interim status requirements in effect at that time. In that
guidance, violations which pose direct and immediate harm of
threats of harm to public health or the environment are
classified as Class I violations. Since failure to have, or
properly operate, a monitoring system may prevent discovery of
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conditions which clearly could constitute such harm, such
failures should be considered to constitute threats of harm.
Violations of the following ground-water monitoring
requirements should therefore be presumed to be Class I
violations: failure to monitor (§265.90(a)), waivers by the
owner/operator of all or part of the ground-water monitoring
requirements which are not justifiable on the basis of low
migration potential (§265.90(c)), failure to design and operate
an acceptable monitoring system (§265.91), failure to develop and
implement an acceptable sampling and analysis plan (§265.92),
failure to prepare and implement an acceptable assessment program
on a timely basis either when an alternative monitoring system is
chosen pursuant to §265.90(d) or, after November 19, 1982, when
contamination is detected (§265.93), and failure to submit
required reports when contamination is detected (§265.94).
Section 3008 compliance orders should be issued to the
owners/operators of all facilities at which these violations are
detected. Violations of other requirements (these would
primarily be documentation, recordkeeping and routine reporting
requirements) should be considered Class III violations and
addressed through a warning letter.
As is the case with section 3008 orders generally (see July
7, 1981 Memorandum, p. 4), questions may arise as to whether, in
a particular set of circumstances, a violation should be
considered a Class I or Class III violation. For example, a
single late submission of a required report, when no
contamination is detected, would, under this scheme, be
considered a Class III violation. General disregard of the
routine reporting requirements could, however, be considered a
Class I violation.
On the other hand, particular Class I violations may be de
minimis in nature. Violations of some of the ground-water
monitoring requirements, which should otherwise be presumed to be
Class I violations, may, in many instances, not pose a direct and
immediate threat of harm to public health or the environment.
Specifically, the requirements relating to the monitoring system
(§265.91), the sampling and analysis plan (§265.92), and the
assessment program (§265.93) may be violated because the system,
plan or program is somewhat incomplete or technically inadequate,
but not sufficiently incomplete or inadequate as to pose a direct
and immediate threat of harm. In such cases the warning letter
approach for Class III violations would be more appropriate.
However, because they will always pose a direct and immediate
threat of harm, the remaining Class I violations (i.e., failure
to monitor (§265.90(a)), waivers which are not justifiable on the
basis of low migration potential (§265.91 (c)), and failure to
submit required reports when contamination is detected (§265.94))
should always be addressed through the issuance of a section 3008
compliance order.
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There will-no-doubt-be many close calls. In those cases regional
assessment as to the proper Agency response must be guided by
informed judgement. As with section 3008 compliance orders
generally, questions which arise concerning the proper
classification of a particular violation should be discussed with
the appropriate Headquarters liaison staff prior to preparation
of the proposed order.
As is the case with 3008 orders generally, the inclusion of
penalties in compliance orders relating to ground-water
monitoring will be at the discretion of the Regional Offices.
When determining whether to include penalties in a section 3008
compliance order the Regional Office should take into account the
harm which has or may result from the violation and any "good
faith" efforts on the part of the owner/operator to bring the
facility into compliance. It is expected, based on these
criteria, that section 3008 compliance orders issued for
violation of the following requirements will generally include
penalties: failure to monitor (§265.90(a)), waivers which are
not justifiable on the basis of low migration potential
(§265.90(c)), and failure to submit required reports when
contamination is detected (§365.94). When compliance orders are
issued which do not include penalties, it should be emphasized
that failure to comply with a compliance schedule can result in a
civil action being brought in Federal District Court pursuant to
section 3008(a) with penalties being judicially imposed. It is
anticipated that as the program progresses and owners/operators
become increasingly familiar with the ground-water monitoring
requirements, penalties will be included in compliance orders for
all types of Class I violations with greater frequency.
The compliance schedule specified in the order should
coincide with the quarterly analyses required by §265.92(c) and
should require compliance within as short a period as possible.
In general, the order should specify that the next quarterly
analysis, which is required to be completed in not less than
three months, be performed. For example, a facility inspected
February 1, 1982, at which a Class I violation is found would be
issued a compliance order requiring that the analysis required by
§265.92(c) be completed by May 19, 1982, the end of the next
quarter. Such a schedule would allow owners/operators at least
three months but no more than six months to complete the
monitoring necessary for a quarterly report. In the overwhelming
majority of cases this should be a sufficient period of time for
an owner/operator to comply.
The Regional Offices should attempt to adjust compliance
schedules according to the circumstances found at particular
facilities. In those cases where a facility is considered to be
capable of complying within a shorter period of time (e.g.,
where, due to the nature of the facility, the waste, or
hydrogeologic conditions, monitoring is a relatively simple
matter, or where partial compliance has occurred) an earlier date
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« cr _
for final compliance should be included in the compliance
schedule. Compliance schedules with a final compliance date
Later than the due date of the facility's next quarterly
analysis, which is due in not less than three months, should not
be allowed however, except upon a strong showing of
impracticability. (Absent this strong showing facilities would
be required to comply in no more than six months.)
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MEMORANDUM Jan. 27, 1982
SUBJECT: Ground-Water Monitoring Requirements During Interim
Status
FROM: Gary N. Dietrich, Director
Office of Solid Waste (WH-562)
James Bunting, Acting Deputy Associate
Enforcement Counsel
Office of Waste Programs Enforcement
Office of Legal Enforcement Counsel (WH-527-F)
TO: Directors, AHM Divisions Regions I, III-X
Director, Air and Waste Management Division, Region II
Directors, Enforcement Divisions, Regions I-X
Owners/operators of existing surface impoundments,
landfills, and land treatment facilities are required by November
19, 1981, to have installed ground-water monitoring systems that
conform with 40 CFR §§265.90-94, Subpart F. The purposes of this
memo are to notify you of several changes which the Agency may
propose to reduce the paperwork burden of Subpart F requirements
and to provide guidance regarding the implementation of the
subpart.
OMB cleared the recordkeeping and reporting requirements for
ground-water monitoring on November 18, 1981. During review of
the paperwork requirements, EPA identified three possible changes
to reduce the burden on the regulated community. First, the
assessment outline (§265.93(a)) may never be needed and could be
eliminated. Second, if the requirement for an outline is
deleted, the 15 day period for submission of the assessment plan
(§265.93(d)(2)) may need to be extended, possibly to 90 days.
Finally, routine reporting required in §265.94 could possibly be
reduced to exception reporting. That is, owners and operators
would keep records of all required analyses, but only report upon
exceeding contaminant limits for the first-year analysis of
Appendix III contaminants or upon statistically significant
changes of indicator values (§265.93(c)).
Drafts of the proposed amendments to reduce the paperwork
burden are now being prepared and, after OMB review, may be
published in the Federal Register early this year. As of this
memo, two Federal Register actions are expected: first, an
interim final promulgation to delay the existing compliance
dates, and second, the proposed amendment and request for
comment. In view of the likelihood that the change will be
promulgated, Regional Offices are advised not to take enforcement
action against owners or operators without outlines or with
poorly prepared outlines. Enforcement of reporting requirements
should be directed only against owners or operators whose
analyses indicate values exceeding the limits expressed in
Appendix III of Part 265. Since these are not readily
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identifiable, inspection schedules should be adjusted to include
a higher percentage of non-reporting facilities.
If the owner or operator has assumed (or knows) that his
facility is affecting ground-water, then he may install an
alternate monitoring system in accordance with §265.90(d). By
November 29, 1981, the owners or operator who elect to install
alternate systems must have submitted to the Regional
Administrator a plan for an alternate ground-water monitoring
system that meets the requirements of §265.93(d)(3). These plans
should be reviewed as soon as possible. The RCRA Implementation
Contract may be used for these reviews. To provide for
consistency, the first assessment plans received in the Regional
Offices should be forwarded to the Headquarters Permit Assistance
Team Coordinators for review.
Owners and operators who can demonstrate low probability for
migration of hazardous waste constituents, in accordance with
§265.90(c), may waive all or part of the ground-water monitoring
requirements. When waivers are encountered upon facility
inspection or voluntary notification, you should provide timely
response, notifying the owner or operator of any inadequacies
noticed in his waiver demonstration. Demonstrations based on
misunderstanding of the regulations should be readily apparent;
examples include assuming that the absence of Appendix III
contaminants from the waste justifies deleting any suitability
parameters from background determinations, or contending that
facility design (liners, etc.) results in the low probability of
migration.
On January 11, 1982, the regulations were amended by adding
§265.90(e) which provides waiver eligibility for rapid
neutralization impoundments handling wastes which are hazardous
solely because they exhibit the corrosivity characteristic. This
is a complete waiver; under §265.90(c), however, we expect that
complete waivers will be rarely justifiable in most parts of the
country. Complete waivers warrant higher priority for review.
Other criteria for high priority review include proximity to
water supplies, high recharge or infiltration rates and high
mobility and toxicity of wastes. Headquarters Land Disposal
Branch and RCRA Implementation Contact support is available for
waiver review.
If you have any questions concerning technical issues,
please feel free to contact Barry Stoll at FTS 755-9116;
questions concerning enforcement issues may be directed to Kermit
Rader at FTS 382-3092.
cc: PAT Coordinators:
Dan Derkics (WH-563)
Susan Absher (WH-563)
Denise Hawkins (WH-563)
Mike Cook (WH-562)
Jack Lehman (WH-565)
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9504.01-84
MEMORANDUM Aug. 16, 1984
SUBJECT: Enforcing Groundwater Monitoring Requirements in RCRA
Part B Permit Applications
FROM: Courtney M. Price
Assistant Administrator for Enforcement
and Compliance Monitoring
Lee M. Thomas
Assistant Administrator
Office of Solid Waste and Emergency Response
TO: Regional Counsels
Regions I-X
Air and Hazardous Materials Division Directors
Regions I-X
Existing regulations under the Resource Conservation and
Recovery Act (RCRA) require owners and operators of hazardous
waste land disposal facilities to conduct groundwater monitoring
in order to obtain a Part B RCRA permit. (40 CFR 270.14(c)(4),
(6), and (7); 40 CFR 264.98(h)(2) and 264.99(f)). To satisfy
these requirements, owners and operators must, under certain
circumstances, monitor for each constituent listed at 40 CFR Part
261, Appendix VIII.
Recently a number of Regional Offices, in response to
inquiries from the regulated community, have questioned whether
certain groundwater monitoring requirements might be waived in
appropriate circumstances. Specifically questioned is the need
to monitor for each and every constituent listed in Appendix
VIII.
There are essentially three arguments advanced to support
selective waiver of the regulatory requirements:
1) certain constituents listed in Appendix VIII are
unstable in water and therefore, will not be detected in
groundwater using generally accepted analytical techniques;
2) EPA-accepted, standardized test procedures do not exist
for some Appendix VIII constituents. Until such procedures are
specified, EPA should not require facility owners to monitor for
these constituents; and
3) certain constituents are not analyzable by scan
methodology. Testing for these constituents is difficult, and
the individual chemical methods used are very expensive and
should not be required unless there is some reason to believe
that such constituents are actually present in the groundwater.
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-2- 9504.01-84
DISCUSSION
Any request to waive or selectively enforce groundwater
monitoring requirements runs counter to the high enforcement
priority the Agency has assigned to groundwater monitoring
violations and must be viewed carefully. Nevertheless, the
Agency recognizes that there is technical merit to some of the
contentions set forth above and is developing regulatory changes
to correct these problems. Proposal of these changes by the
Office of Solid Waste is expected in August 1984, and that Office
plans to promulgate the changes as a final rule by early 1985.
Recognizing the problems created by existing regulations, we
believe that it is permissible for Regional enforcement personnel
to assign low priority to certain technical regulatory violations
in appropriate circumstances. The first situation concerns the
regulation which currently requires permit applicants to monitor
for constituents which, because of their chemical properties, are
not detectable in groundwater using generally accepted analytical
techniques. The constituents that fall into this group are set
forth at Attachment I to this memorandum. Because these
constituents cannot be detected in groundwater, there is no
conceivable environmental benefit to be gained by requiring
formal laboratory analysis.
The second situation which we believe merits low enforcement
priority involves the failure to monitor for those constituents
for which there are no EPA-approved test methods. These
constituents are set forth at Attachment II to this memorandum.
We believe that low enforcement priority is warranted in these
cases because the absence of any approved test method makes
meaningful analysis of any reported data difficult.
Unlike the first two situations, the last situation
presented by permit applicants does not warrant any change in our
enforcement priorities. This situation concerns the need to
monitor for those constituents that are not analyzable by scan
methodology. These constituents are listed in Attachment III to
this memorandum. Applicants have argued that absent some
indication that such constituents are present in the groundwater,
no monitoring should be required.
This argument is not persuasive. The regulations clearly
require analysis for these constituents. Unlike those constit-
uents listed in Attachment II, accepted test procedures do exist
for Attachment III constituents. The fact that such test
procedures are expensive.is legally irrelevant. Moreover, EPA
has previously rejected the notion that facility owners can
determine the hazardous constituents emerging from a land
disposal unit from records detailing the wastes previously
disposed of at the facility. Therefore, a facility owner's
failure to monitor for these Attachment III constituents should
ordinarily result in enforcement action.
Attachments
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9504.01-84
COMPLIANCE AND ENFORCEMENT
Key Words: Ground-Water Monitoring
Regulations: 40 CFR 270.14(c)(4), (6) and (7); 264.98(h)(2) and
264.99(f) Part 261 Appendix VIII
Subject: Enforcing Ground-Water Monitoring Requirements in
RCRA Part B Permit Applications
Addressee: Regional Counsels, Regions I-X, and Air and
Hazardous Materials Division Directors, Regions I-X
Originator: Courtney M. Price, Assistant Administrator for
Enforcement and Compliance Monitoring, and Lee M.
Thomas, Assistant Administrator, Office of Solid
Waste and Emergency Response
Source Doc: #9504.01(84)
Date: 8-16-84
Summary:
In response to Regional requests to waive or selectively
enforce ground-water monitoring requirements for every Appendix
VIII constituent, OSW has proposed regulatory changes (FR,
October 1, 1984) that it expects to promulgate as a final rule in
early 1985.
Until the proposed change becomes final, Regional
enforcement personnel would be permitted to assign low priority
to the following monitoring violations:
1) failure to monitor for 11 Appendix VIII constituents
which, because they are unstable in water, are not
detectable in ground water using generally accepted
analytical techniques; and
2) failure to monitor for 10 Appendix VIII constituents for
which there are no EPA-approved test methods.
Current Agency policy requires the analysis of all Appendix
VIII chemicals except for the 21 substances noted above.
Owners/operators must continue to monitor for certain Appendix
VIII constituents that cannot be analyzed through scan
methodology because accepted test procedures do exist for these
constituents. Regions should ordinarily take enforcement action
when an owner/operator fails to monitor for these constituents.
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9504.01-84
ATTACHMENT I
Acetyl chloride
Aluminum phosphide
Carbon oxyfluoride
Dimethylcarbamoyl chloride
Fluorine
Methyl chlorocarbonate
Methyl isocyanate
Nitrogen dioxide
Phosgene
Toluene diisocyanate
Zinc phosphide
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9504.01-84
ATTACHMENT II
Cacasin
Ethylenebisdithiocarbamic acid
2-Fluoroacetamide
Iron dextran
Lasiocarpine
Mustard gas
Nitrogen mustard, N-oxide and HC1 salts
Nitrogen mustard and HCl salts
Nitric oxide
Phosphine
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9504.01-84
ATTACHMENT III
Cyclophosphamide
Formaldehyde
Formic acid
Hexachlorohexahydrodimethanonaphtha1ene
Hydroxydimethylarsine oxide
7-Oxabicyclo[2.2.1]heptane-2,3-dicarboxylic acid
Selenourea
Streptozotocin
Strychnine
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OSWER Directive # 9905.0
July 22, 1985
MEMORANDUM
SUBJECT: Transmittal of the RCRA Ground-Water Enforcement
Strategy
FROM: Jack W. McGraw
Acting Assistant Administration (WH-562A)
TO: Regional Hazardous Waste Division Directors
Regions I-X
Attached for your immediate implementation is the final RCRA
Ground-Water Enforcement Strategy to improve compliance at land
disposal facilities subject to ground-water monitoring (GWM)
requirements. This policy document, consistent with the FY 86
RCRA Implementation Plan (RIP), continues to focus the National
RCRA Enforcement Program on those facilities which present the
greatest potential environmental risk; particularly land disposal
facilities.
This strategy was developed in concert with the FY 86 RIP
and it provides a greater level of detail regrading the Agency's
management of information regarding land disposal facilities.
The Ground-Water Enforcement Strategy incorporates Regional
comments on both the RIP and the first draft of the strategy
(mailed 6/13/85 and discussed at the last Division Director's
meeting on June 18). Additional comments were received from the
RCRA Project Officers (RPO's) who met in Headquarters on June 25-
26, 1986.
There are two parts to this strategy. The first part
establishes the priorities for inspections and enforcement
actions at GWM facilities. These priorities are completely
consistent with the priorities in the FY 86 RIP and are restated
here for emphasis. We merged the results of the development of
the FY 1986 RIP and the ground-water strategy to produce a single
approach responsive to program needs. The second part of the
strategy establishes the framework for a greater level of Agency
management of the information and data we have and will gather
concerning these high priority facilities« This framework
requires a greater Regional and, to some degree, Headquarters
role in program oversight. As we have discussed in the past,
increased activities to protect ground-water are essential at
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-2- OSWER Directive # 9905.0
this time. Most Regions have already started to obtain more
detailed programmatic and facility specific information. The
intent of this strategy is to establish a nationally consistent
baseline of information on these facilities and to assist the
Regions in implementing Regionally specific efforts.
I am relying on your personal involvement to insure that
this strategy, in concert with the FY 86 RIP, is quickly
implemented. For this strategy to be successful, implementation
must proceed in a cooperative manner between the Regions and
States. I do not anticipate that FY 1985 State Enforcement
Agreements will need to be changed pursuant to this strategy.
OWPE staff and their contractors are available to assist you, as
necessary, in some of the data gathering efforts. Your staff can
contact Jerry Kotas, Acting Chief of the RCRA Compliance &
Implementation Branch (FTS 475-8115) to discuss OWPE assistance.
I appreciate your continuing assistance in working together
to strive for full program implementation.
cc: RCRA Branch Chiefs, Regions I-X
RCRA Enforcement Section Chiefs, Regions I-X
RCRA RPO's, Regions I-X
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OSWER Directive # 9905.0
RCRA GROUNDWATER ENFORCEMENT STRATEGY
Office of Waste Programs Enforcement
JULY 22, 1985
"Retyped From The Original"
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OSWER Directive # 9905.0
I. Background
This document establishes a strategy for improving the
regulatory compliance at land disposal facilities subject to
ground-water monitoring (GWM). The facilities subject to GWM
requirements generally pose the greatest environmental risk. For
this reason, as stated in the FY 1986 RCRA Implementation Plan
(RIP) dated June 28, 1985, these facilities are the highest
priority for the RCRA Enforcement Program.
This strategy has two sections. The first section
establishes the national priorities for inspections and
enforcement actions at GWM facilities. These priorities are
consistent with the enforcement priorities contained in the FY 86
RIP. These priorities are also consistent with the more general
FY 85 Revised RIP, although additional emphasis and data
gathering are added. The second section establishes clear roles
for both the Regions and Headquarters related only to the GWM
facilities. This section addresses three elements of information
management: (1) GWM inspection reports and enforcement orders;
(2) Regional and HQ facility files; and (3) an integrated data
management system for GWM facilities which incorporates HWDMS and
other existing systems and adds some limited new data elements.
II. Policy
Regarding RCRA land disposal facilities subject to GWM
requirements, it is the Agency's policy to:
• take a formal enforcement action to abate any release
of a hazardous waste or constituents posing an
immediate threat to health or the environment (that is
not addressed by CERCLA)
• by end of FY 1986, take a formal enforcement action
against all interim status land disposal facilities
that have not fully implemented ground-water monitoring
programs that satisfy both interim status requirements,
and final operating permit application requirements,
and have not voluntarily come into compliance;
• support the issuance or denial by November 1988 of all
land disposal facility permits;
• ensure that closed regulated land disposal units comply
with closure and post-closure requirements; and
• ensure Federal facility compliance.
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-2- OSWER Directive # 9905.0
The Facility Management Planning (FMP) process will
determine appropriate enforcement or permitting actions to be
taken.
III. PRIORITIES FOR INSPECTIONS AND ENFORCEMENT ACTIONS
The Agency and the States have emphasized ground-water
protection as a high priority. Our priorities have been set
forth most recently in the FY 1986 RIP. These priorities
underscore the commitment to protect groundwater. To assure
achievement of the priority activities in the RIP, RCRA
inspection and enforcement activities should be oriented toward
the FY 86 RIP priorities which are summarized below. A complete
discussion and explanation of the following priorities is set
forth at page 8-17 of the FY 86 RIP. It should be noted that the
FY 86 RIP contains priorities for inspections and enforcement
orders to facilities in addition to the GWM facilities. Those
are not changed by this policy.
Mandatory Inspection Priorities for Land Disposal Facilities
Subject to GWM Requirements
1. Facilities presenting an immediate threat to human health
and/or the environment.
2. Commercial land disposal facilities.
3. Facilities with ground-water monitoring systems of unknown
status.
4. Facilities with ground-water systems previously determined
to be inadequate.
5. Facilities without ground-water monitoring wells.
6. Facilities with ground-water monitoring systems previously
deemed adequate.
7. Land disposal facilities in the permit pipeline.
8. Closed land disposal units.
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-3- OSWER Directive # 9905.0
Priorities for Taking Enforcement Actions at Land Disposal
Facilities Subject to GWM Requirements
1. Facilities presenting immediate or service threat to human
health and/or the environment.
2. Facilities with inadequate well systems.
3. Facilities with no wells.
4. Enforcement orders to support the permitting of land
disposal facilities.
5. Other noncompliance with closure and post-closure
requirements, including applicable GWM requirements.
IV. MANAGEMENT FOR RESULTS
The RCRA Enforcement program is focused on environmental
results. The priorities for inspections and enforcement are
designed to address the most environmentally significant
facilities first, i.e., land disposal, and then to further
prioritize actions within that group to move against the biggest
or potentially biggest problems first.
In addition to focusing inspection and enforcement
activities there is also a national need for significantly
improved management of the information gathered about land
disposal facilities subject to ground-water monitoring. The
States and Regions have considerable information on specific
facilities, but the information is not always readily available.
A goal of this strategy is to obtain necessary information and
employ automated data processing that will provide the agency
with a national picture of the status of ground-water monitoring
facilities. We expect that the Regional files and consolidated
data base described below will be assembled and operational by
October 1, 1985.
A. Facility Files
Improving Agency management of facility information will
require considerable cooperation between the States, Regions and
Headquarters. By the end of FY 1985 the Regions should have a
reasonably up-to-date individual file on most land disposal
facilities. Those files should include copies of State and EPA
inspection reports and orders, and other relevant submissions.
The Regional files, in conjunction with a brief confirming phone
call with the State, should be complete enough to determine a
facility's general compliance status, including an evaluation of
"Retyped From The Original"
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-4- OSWER Directive # 9905.0
the facility's compliance with applicable ground-water monitoring
requirements. In developing and maintaining files, the Regions
should obtain information from the States, and as appropriate,
should also use authorities such RCRA §3007 to obtain information
directly from owners or operators. State inspection reports and
enforcement orders are to be submitted to EPA in final form for
purposes of regional oversight and review for national
consistency, not for EPA concurrence. The general objectives of
the EPA oversight are to evaluate the quality and completeness of
inspection reports and to review the timeliness and
appropriateness of State formal enforcement actions. Results of
oversight evaluations will be shared with the States.
"Retyped From The Original"
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-5- OSWER Directive # 9905.0
In addition, OWPE will establish a very limited file on land
disposal facilities that will contain primarily copies of
Regional and State enforcement complains and orders, copies of
selected inspection reports, and copies of other documents
obtained through routine oversight activities. Copies of all EPA
Regional enforcement complains and orders will continue to be
sent to OWPE. The Regions should obtain copies of formal State
enforcement pleadings (equivalent to EPA complaints and orders
regarding violations of ground-water, closure, post closure and
financial responsibility requirements, and corrective action at
land disposal facilities and send copies to OWPE. Copies of
specific State and Regional inspection reports will be
periodically requested. OWPE will use the enforcement documents
in a general overview of (1) national progress in enforcement
actions. (2) procedures for and quality of inspections (3) the
national consistency of compliance with the RCRA Enforcement
Response Policy, and (4) trends in the quality of enforcement
actions, the results of which will be shared with the Regions. A
Regional/State workgroup will be established to help develop
procedures and criteria for selecting and reviewing enforcement
inspections and orders for cross fertilization and appropriate
national consistency.
B. Consolidated Data Base
During the conference call with the Regional Division
Directors on May 9, the need for a consolidated information base
to improve oversight and evaluation of compliance monitoring and
enforcement activities at land disposal facilities was discussed.
Data currently collected on the compliance status of GWM
facilities through the State-EPA reporting process may not
provide, in all cases, the level of detail essential to address
non-compliance of environmentally significant facilities. The
consolidated data base for land disposal facilities will provide
EPA with a slightly more detailed information management tool for
land disposal facilities and will rely primarily upon HWDMS data.
The purpose of the consolidated data base is to facilitate EPA
management and oversight of the compliance of these priority
facilities. It is not intended to substitute for the detailed
information in files that is needed for enforcement actions.
Building a better information base requires the following
steps:
1. Determine information needs based on the enforcement
strategy and responsibility to more closely monitor
activities at land disposal facilities.
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-6- OSWER Directive # 9905.0
2. Determine what information is currently available and
assess its reliability; determine what new data needs
to be collected.
3. Determine how to collect, quality assure, process and
analyze this information.
Implementation of the three steps is as follows:
1) Information Needs:
Attached is the list of information needed for
each of approximately 1,600 land disposal
facilities subject to ground-water monitoring.
These data will provide a profile of each facility
with information on evaluations focusing on
ground-water monitoring systems and closure/post
closure plans; ground-water monitoring violations
including details on the status of ground-water
monitoring systems; and outstanding enforcement
actions addressing ground-water monitoring
violations. Data elements pertinent to loss of
interim status provisions are necessary for
managing in the post November 8, 1985 world RCRA
enforcement. This includes certification data and
the status of the permit or closure process as
appropriate. Finally information on CERCLA site
wastes at RCRA facilities is becoming critical.
2) Existing data and quality; new data needs;
The list includes the source of each data item.
Much of the data on the list is routinely
collected through the State reporting process and
is in HWDMS. The quality and completeness of
these data vary from Region to Region and State to
State. Much of the basic facility information
collected via Part A permit applications is
already in HWDMS. Part A data should be reviewed
to accurately identify facilities subject to
ground-water monitoring and loss of interim status
provisions. Some detailed information on the
status of ground-water monitoring systems was
captured through the Congressional survey in early
1985 and automated by Headquarters. CERCLA wastes
at RCRA sites data were captured and automated by
Headquarters last fall. however, updated
information is needed.
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Some of the information on the list has never been
systematically captured and processed on a
facility-specific, national basis. These are the
new data that will be collected for the first time
from the Regions.
3) Procedures to collect, quality assure, process and
analyze data;
The task at hand is to quality assure existing
data and capture new data. This will be achieved
through a single operation. The attached proposed
schedule includes the major data gathering
milestones. The effort must involve both Regions
and States to provide the new data and quality
assure the current data in existing data bases.
OWPE will consolidate existing data into a single
data base that will be accessible to the Regions
and easy to utilize. Under an OWPE contract, data
from HWDMS Regional data bases, the Congressional
Survey, and the CERCLA/RCRA Survey will be linked
together by EPA's facility ID number and
established as a separate file on the IBM
mainframe computer at the National Computer Center
at Research Triangle Park. This computer can be
accessed by all Regional and Headquarters.
Current data will be sent to Regions to be quality
assured for completeness, correctness, and
timeliness. Quality assurance is very important
since future oversight report on Regional and
State performance will assume a thorough assurance
of existing data. It will come to the Regions in
the form of a computer-generated listing for each
land disposal facility. This listing will show
all current data available and identify the source
of the data (HWDMS, Congressional Survey, etc.).
Discrepancies such as where Congressional
enforcement data disagrees with HWDMS/CMEL
enforcement data will be laid out for resolution.
Any corrections of HWDMS data will be made to
HWDMS regional data bases by the regions and/or
the States, as established procedures.
Headquarters will capture corrections to HWDMS
data by re-loading regional data bases at a pre-
arranged time.
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Corrections to Congressional Survey and
CERCLA/RCRA Survey data will be submitted to
headquarters in specially assigned formats and
will be entered into the consolidated data base by
OWPE.
All data on the consolidated data base is
formatted in a software package (SAS) which
permits any combination of data relationships to
be established and analyzed. This provides
flexibility in processing data that is not
available using HWDMS alone. Reports and analyses
can be routed to Regional printers so Regional
managers can make use of the consolidated data.
Some Regional ADP staff may be familiar with SAS
and can generate reports off the consolidated data
base for Regional management staff.
Alternatively, requests for reports can be called
into Headquarters, generated by OWPE and routed to
Regional staff. The goal is to provide a
flexible, accessible data base which will serve
the Region.
Those Regions and States which have
conscientiously collected and processed HWDMS data
and reported Congressional Survey data accurately
should have few problems with existing information
quality. Their burden largely will be limited to
providing the new information and updates. Those
Regions and States which have not been as
successful face a larger work load. OWPE's
regional coordinators and contractor staff will
work directly with Regional staff and through the
Regions with States to help with this process.
This approach is being taken for several reasons. First a
consolidate data base is needed as soon as possible. This can be
accomplished only by building on the foundation of existing data
bases. It is faster and easier to correct exiting data and
collect a limited amount of new data than to start from scratch.
Second, hardware used must be common to all Regions. It has
been suggested that a series of Regional IBM-PC's be used to
process this information. However, not all Regional RCRA
Enforcement staffs have PC's. It is also unlikely that staff in
all Regions have been trained on IBM-PC's.
Third, the data collection and processing infrastructure
exits in all Regions. Establishing an entirely different set of
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-9- OSWER Directive # 9905.0
procedures is not practical under current time constraints. It
is acknowledged that State reporting and HWDMS processing have
not ben ideal. The current operating environment provides a
unique opportunity to address and resolve HWDMS data quality
issues. However, there is some information that is not currently
being collected in HWDMS. Consequently, the separate data-
gathering process for this segment of information is necessary.
C. Usage
1. Use of the consolidated data base:
The purpose of the data collection initiative is to
develop a better information base for management,
oversight, and program evaluation purposes. Both
Regional and headquarters staff will be encouraged to
access the data base on an interactive basis to support
implementation of the strategy. Examples are:
— Generate listing of facilities with no well
systems. These facilities are to receive C
attention regarding the November 8, 1985 deadline
and loss of interim status.
Generate listings of facilities with known
releases along with related enforcement action
data. This is to ensure that timely and
appropriate enforcement actions are taken, that
correction action can be prioritized, and that
data exists for national budgetary purposes.
Generate listings of facilities that were reported
as in compliance along with evaluation
information. Knowing the date and type of most
recent evaluation, inspectors can determine which
facilities need CME's.
2. Updating of informations
In keeping with Regional and State reporting practices
since FY 84, the consolidated data base will be updated
monthly. For the universe of land disposal facilities
which are the focus of the strategy, this will
constitute the FY 86 RCRA implementation plan state
reporting requirements. The Compliance Monitoring and
Enforcement log will continue to be used to report
actions at the balance of facilities not covered by the
strategy. Again, this is described in detail in the
RIP.
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-10- OSWER Directive # 9905.0
Support in using the consolidated data base.
At the outset, in the event that a Region experiences
difficulty in using the system, OWPE will provide
support. As requested, OWPE will arrange for printouts
and send them to the Regions.
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July 12, 1985
U.S. EPA - OFFICE OF WASTE PROGRAMS ENFORCEMENT
CONSOLIDATED DATA BASE INFORMATION
Phase A - To Be Collected Now
HWDMS
Existing Data Sources
New Data
CERCLAT
RCRA
Dingell
Survey
Old
FSS
GW
Strategy
SPAR
I. Background Information
1. Facility Name C0104
2. EPA Fac. ID# C0101
3. City and/or County C0111
II. Profile Information
For RCRA Regulated Units,
report:
4. # of Landfill Units C1801=D80'
5. # of Land Treatment Units " =D81
6. # of Surface Impoundments
-Storage =S04
-Treatment =T02
- Disposal =D83
7. # of Class I HW Under-
ground Injection Wells =D79
8. f of Waste Piles =S03
yes
yes
yea
Process
Codes
yes
yes
yes
yes
yes
yes
yes
Actual #
of units
for each
process
[NOTE - This information helps define the universe of land disposal facilities. In some regions
where C0305 = D (for Disposal) is the indicator for land disposal facilities.]
-------
Existing Data Sources
New Data
HWDMS
V6
HWDMS
V6.5
CERCLA/
RCRA
Dingell
Survey FSS
GW
Strategy SPAR
Is the facility in: Where 2401=G
9. Part 265 Detection Monitoring C2407=D
10.
Part 265 Assessment
Monitoring
11. Is Facility developing
data/plans pursuant to
Part 270 Requirements
12. Is Facility developing
data/plans pursuant to
Part 270 Requirements
and Part 265 Assessment
Monitoring
13. Is entire Facility
operating under at waiver
from GWM Requirements
14. Has waiver been reviewed
15. Was waiver adequate
C2407=A
Where 2401=G
2407=W
Where 2401=G
2402=5
C2435 exists
G2436=Yes
Where 2401=G
2476=D
2476=A
2476=P
2476=C
Where'2401=G
2407=W
Where 2401=G
2471=05
Derive from #13 and #14
(if reviewed and approved,
it was adequate)
Q-la
Q-19 Q-la
yes
yes
Q-la
Q-6a
Q-6b
"Retyped From The Original"
-------
Existing Data Sources
New Data
HWDMS
V6
HWDMS
V6.5
CERCLA/
RCRA
Dlngell
Survey FSS
GW
Strategy SPAR
16. Has Facility submitted
delisting petition
17. Is there a fundamental
disagreement between
EPA/State and Facility
re: regulated units or
whether is disposes of
hw Y/N?
18. Has Facility notified/
closure
(This data is maintained by
Jim Popetti of OSW)
C2402 or
2102
Where 2001=C
2102=33
2107=FC
yes
Phase B - Data to be collected
at a later time
B-l Was Closure certified
B-2 Has post-closure permit
application been submitted
Date
B-3 Has post-closure permit
application been issues
Date
Where 2001=C
2102=15
2001=W
2102=?
2106
2001=W
2102=?
2106
yes
yes
yes
'Retyped From The Original1
-------
Existing Data Sources New Data
HWDMS HWDMS CERCLA/ Dingell GW
V6 V6.5 RCRA Survey FSS Strategy SPAR
The following relate to loss of
interim status provisions:
B-4 Certification with Subpart F Where 2001=P yes
or equivalent State requirements 2102=43
Where 2106 exists
Certified all units 2107=CC
Certified some units 2107=PC
Certification not submitted 2107=NC
B-5 Certification with Subpart H Where 2001=P yes
or equivalent State requirements 2102=44
Where 2106 exists
Certified all units 2107=CC
Certified some units 2107=PC
Certification not submitted 2107=NS
Facility unable to obtain 2109=TBD
insurance
OWPE will generate data supplied by
regions in response to the Dingell survey:
As of 12/84, facility was judged to have:
No wells yes
No wells because it has a waiver yes
from GWM requirements
No wells because it was a waste yes
pile and didn't require wells
to meet Part 265 requirements
"Retyped From The Original"
-------
Existing Data Sources
New Data
HWDMS
V6
An inadequate well system
Adequacy of system unknown or
under review
An adequate well system
Facility not subject to GWM
requirements
HWDMS CERCLA/ Dingell
V6 . 5 RCRA Survey
yes
yes
yes
yes
GW
FSS Strategy SPAR
Q-2a
Q-2b
Update Dingell survey data; per most
current information, Facility was
judged to have:
19. No wells '
20. No wells because it has a
waiver from GWM requirements
21. No wells because it was a
waste pile and didn't require
wells to meet Part 265 requirements.
22. An inadequate well system
23. Adequacy of system unknown or
under review
24. An adequate well system
25. Facility not subject to GWM requirements,
Where 2401=G
2407=X
2407=W
yes
yes
yes
yes
yes
yes
2407=N
"Retyped From The Original"
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Existing Data Sources New Data
HWDMS HWDMS CERCLA/ Dingell GW
V6 V6.5 RCRA Survey FSS Strategy SPAR
For each Facility which did or did
not certify compliance with ground-
water monitoring or financial
requirements, has it submitted a:
B-6 Part B Application
As above
B-7 Closure Plan
As above
B-8 Post Closure Permit
Application
As above
B-9 Has a PA/SI been performed Where 2001= yes(SPAR)
2101=TBD
2105 exists
For purposes of this data base, OWPE has divided CME's into
three basic components as shown below. The considerations
in parentheses are not meant to be all inclusive. It is
Agency position that requirements for site characterization,
well location and design and sampling and analysis pursuant
to Parts 264 and 265 are essentially the same, i.e., they
are in keeping with the parameters of constituents to be
monitored. See Chapter 3 of the Ground Water Compliance
Order Guidance. Current HWDMS and planned enhancements
provide information on CME (Eval Type 04) overall.
"Retyped From The Original"
-------
Existing Data Sources
New Data
HWDMS
V6
HWDMS
V6.5
CERCLA/
RCRA
Dingell
Survey FSS
GW
Strategy SPAR
26
27
Review Hydrogeologic study/
information. (Collection and
analysis of hydrogeologic
information on which system
design is based)
Reviewed
Responsible Agency
Adequate
Date reviewed
Well construction and
location ( # and location
of wells, depth and length
of well screens, design and
construction of wells, etc.
Reviewed
Where 2311=04
2313 exists
All above
2339=S,
E, etc.
All above and
2331=0
2313
Responsible Agency
Where 2311=04
2313 exists
All above
2339=S,
E, etc.
2314=S,
E, etc.
yes
yes
yes
yes
2314=S,
E, etc.
yes
yes
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-------
Existing Data Sources
New Data
Adequate
Date reviewed
HWDMS HWDMS
V6 V6.5
All above and
2331=0
2313
CERCLA/ Dingell GW
RCRA Survey FSS Strategy
yes
yes
SPAR
28
29
30,
Sampling and Analysis
Program (adequacy of sampling
equipment, sampling protocols
and QA/QC protocols)
Reviewed
Responsible Agency
Adequate
Date reviewed
Has facility detected a
statistically significant
increase?
Date
Has Part B been
received?
Where 2311=04
2313 exists
All above
2339=S,
E, etc.
All above and
2331=0
2313
Where 2401=G
2402=3
2438
Where 2001=P
2102=02
2106 exists
2314=8,
E, etc.
yes
yes
yes
yes
Where 2401=G
2471=03
2479
yes
yes
"Retyped From The Original'
-------
Existing Data Sources New Data
HWDMS HWDMS CERCLA/ Dingell GW
V6 V6.5 RCRA Survey FSS Strategy SPAR
Record Review of Interim
Status Facilities:
31. Have Closure/Post Where 2311=03 yes
Closure Plans and Cost and 2333=X or 0
Estimates been reviewed?
Date Reviewed 2313 yes
Responsible Agency 2339 yes
Were violations discovered? 2333=X yes
32. Have Financial Assurance Where 2311=03
Instruments been reviewed? and 2334=X or 0 yes
Date Reviewed 2313 yes
Responsible Agency 2339 yes
Were violations discovered? 2334=X yes
For each enforcement action taken as the
result of any evaluation or information
obtained from beginning of FY 1984 to
date, provide the following:
"Retyped From The Original"
-------
Existing Data Sources
New Data
HWDMS HWDMS CERCLA/ Dingell GW
V6 V6.5 RCRA Survey FSS Strategy SPAR
33.
34.
35.
36.
37.
38.
39.
40.
Type of Enforcement Action
- NOV/WL
- 3008 (a) complaint (or
State equiv)
- 3008 (a) final order (or
State equiv)
- 3013 initial
- 3013 final
- 7003
- 3008(h)
- CERCLA §106
Date of Evaluation
Type of Evaluation
Class I Violation
area or reason for action
Responsible Agency
Scheduled compliance date
Actual compliance date
Is facility in compli-
2354= yes Q-7
03
04
05
06
07
08
16 yes
17 yes
2313
2311=01-05 yes Q-7
2332-2338 yes Q-7
2332-2338 yes Q-7
2356
2357
2366=A
ance with compliance
schedule in final order?
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-------
Existing Data Sources
New Data
HWDMS
V6
HWDMS
V6.5
CERCLA/
RCRA
Dingell
Survey
FSS
GW
Strategy
SPAR
Disposition of CERCLA Wastes
at RCRA Facilities:
41. Has the facility received
42. Superfund sites from which
waste sent - Site ID# & name
43. Date of first shipment
44. Date of last shipment
45. Date of last shipment
yes
yes
yes
yes
Q-8
Q-8
yes
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OSWER Directive # 9931.1
RCRA Ground-Water FINAL
Monitoring Compliance
Order Guidance
"Retyped From The Original"
-------
OSWER Directive # 9931.1
TABLE OF CONTENTS
1. INTRODUCTION page
1.1 Purpose and Objectives 1-1
1.2 Significance of the Interim Status to Permitting Transition
Period 1-2
1.2.1 Plume Characterization Under §270.14(c)(4) 1-3
1.3 Overview of the Administrative Enforcement Process 1-5
1.3.1 Case Initiation 1-7
1.3.2 Facility Management Planning 1-10
1.4 Relationship to "Late and Incomplete Part B Policy" 1-12
1.5 Structure of this Document 1-13
2. REGULATORY OVERVIEW
2.1 Interim Status Ground-Water Monitoring - Part 265,
Subpart F 2-1
2.1.1 Detection Monitoring 2-2
2.1.2 Assessment Monitoring 2-5
2.2 Permit Regulations for Ground-Water Monitoring - Part 265,
Subpart F .2-7
2.2.1 Detection Monitoring 2-7
2.2.2 Compliance Monitoring 2-8
2.2.3 Corrective Action 2-11
2.3 Permit Application Regulations - Part 270 2-12
2.3.1 Information Requirements of §270.14(c) 2-13
2.3.2 Information Requirements for Appropriate Part 264
Ground-Water System 2-15
3. REGULATORY COMPARISONS
3.1 Part 265 vs. Part 264 Detection Monitoring 3-2
3.1.1 Well Placement 3-2
3.1.2 Indicator Parameters 3-5
3.1.3 Sampling Frequency 3-5
3.1.4 Appropriate Sampling Techniques 3-5
3.1.5 Statistical Comparisons 3-7
3.2 Part 264 Detection Monitoring vs. Part 264 Compliance
Monitoring 3-8
3.2.1 Well Placement and Network Design 3-8
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OSWER Directive # 9931.1
3.2.2 Establishing Background Concentrations 3-9
3.2.3 Sampling Frequency 3-11
3.2.4 Statistical Comparisons 3-12
3.3 Part 265 Assessment Monitoring vs. §270.14(c)(4) Plume
Characterization 3-12
4. OVERVIEW OF ORDER AUTHORITIES
4.1 Comparison of §3008(a), §3008(h), and §3013 Orders 4-2
4.1.1 Actions the Orders May Require 4-2
4.1.2 Conditions for Order Issuance 4-5
4.1.3 Formal Administrative Proceedings 4-16
4.2 Selection Among Order Authorities 4-17
5. FASHIONING A REMEDY AND DEVELOPING THE ENFORCEMENT STRATEGY
5.1 Types of Violators 5-1
5.2 Profile of a "Transition-Period" Violator 5-3
5.3 Outline of the Remedy 5-4
5.4 Discussion of the Remedy 5-9
5.4.1 Design and Installation of a Competent Monitoring
Network 5-9
5.4.2 Confirmation of Leakage Based on Expanded Sampling 5-11
5.4.3 Fulfillment of Applicable Part 270 Requirements 5-13
5.5 Application of Enforcement Authorities to the Remedy 5-14
5.5.1 Selection of the Order Authority 5-15
5.5.2 Securing the Model Remedy Through a §3008(a) Order 5-17
5.6 Variations on the Model Scenario 5-19
6. DEVELOPING ORDERS
6.1 importance of Specificity 6-1
6.2 Phased Orders for Ground-Water Monitoring Violations 6-3
6.3 Technically Specific Orders 6-6
6.4 §3008(a) Orders 6-13
6>5 §3013 Orders 6-15
6.6 §3008(h) Orders 6-16
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ii
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OSWER Directive # 9931.1
TABLE OF FIGURES
1.1 Model of the Enforcement Process 1-6
3.1 Relationship of the Waste Management Area to the Point of
Compliance 3-4
3.2 Well Placement in Compliance Monitoring 3-10
4.1 Comparison of Order Authorities 4-3
4.2 Ground-Water Performance Standards 4-8
4.3 Relationship of Technical Inadequacies to Ground-Water
Performance standards 4-9
5.1 violator Classification Scheme 5-2
5.2 Ground-Water Monitoring Sequence As originally Envisioned 5-6
5.3 New Ground-Water Compliance strategy Based on Condensed
Monitoring Sequence 5-10
5.4 Model Remedy with Regulatory Citations 5-18
5.5 Variations on Model Remedy and Enforcement Response 5-22
6.1 Possible Elements of a Techically-Specific Order 6-8
LIST OF APPENDICES
Appendix A: Model Phased Order A-l
Appendix B: Diagram of Administrative Proceedings B-l
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iii
-------
OSWER Directive # 9931.1
CHAPTER 1
INTRODUCTION
1.1 Purpose and objectives
The purpose of this document is to guide enforcement officials in
developing administrative orders to address RCRA ground-water monitoring
violations at interim status land disposal facilities.1 The document's
primary objective is to promote the development of orders that correct interim
status violations in a manner that is consistent with the needs of the RCRA
permitting process. Enforcement personnel are encourage to involve permit
writers in the formulation of technical remedies to ensure that enforcement
remedies are consistent with the long-term monitoring responsibilities of the
facility.
The guidance is intended to apply to the RCRA-authorized states as well
as to EPA regional offices. While State and Federal enforcement authorities
may differ (e.g., states may have different order authorities or different
maximum penalties), the States and EPA are enforcing essentially the same set
of regulations. Therefore, remedies designed by state enforcement officials
should be similar to those outlined in this document.
The document will not be concerned with policy matters such as how to
decide which cases to pursue or how to decide between administrative and
judicial response. Instead, the document focuses on the formulation of
1 This document covers only the requirements for ground-water monitoring
that apply to hazardous waste management units that were in existence on
November 19, 1980. It does not address monitoring requirements that may be
imposed on solid waste management units as a result of the "continuing
releases" provision, $3004(u) of RCRA, as amended by the Solid and Hazardous
Waste Act Amendments of 1984.
"Retyped From The Original"
1-1
-------
OSWER Directive # 9931.1
technical remedies and on the appropriate technical content of orders.
Specifically, it concentrates on how to fashion ground-water remedies for
facilities operating during the transition period between interim status and
permitting.
1.2 Significance of the Interim Status to Permitting Transition Period
The Agency and the regulated community are now entering a period unique
in the life of the RCRA program — the period after which all Part B permit
applications are due, but before all facilities have been permitted. EPA and
the States have already received many Part B applications. By November 8,
1985 the Part B permit applications of all the nation's land disposal
facilities will be due.2 It is likely, however, that it may take several
years for EPA to process and finalize permits for all these facilities. As a
result, many facilities will face a fairly long period of time between the due
date of their application and the issuance or denial of a permit.
The existence of this transition period is significant because it is the
only time in the life of the RCRA program that land disposal facilities will
be bound by the interim status ground-water regulations (Part 265) and the
permit application regulations (Part 270). It is the first time, therefore,
that enforcement officials can draw upon the authorities of both Part 265 and
270 when fashioning technical remedies at interim status facilities.
As described in Chapter 3, the Part 270 regulations impose additional
monitoring and information generating requirements on the owner/operators of
2 The Solid and Hazardous Haste Act Amendments of 1984 require all land
disposal facilities to submit a Part B permit application within twelve months
after the enactment of the Amendments or lose interim status. See §3005(e) of
the Resource Conservation and Recovery Act (RCRA).
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interim status facilities. The Agency designed the interim status (Part 265),
permit application (Part 270), and permitting regulations (Part 264) to be
followed in sequence. A facility moves from one phase of monitoring to the
next (and from interim to permitted status) by building upon the information
generated during the previous state. The monitoring and cleanup obligations
of an owner/operator also expand as the facility approaches permitting and/or
the evidence of ground-water contamination increases.
Unfortunately, certain facilities have not adequately implemented even
the first phase of the monitoring sequence, the installation of a competent
detection monitoring network. Consequently, these owner/operators cannot
provide the sampling data or plume characterization required for a Part B
permit application.
Enforcement officials can help solve this problem by crafting technical
remedies that integrate the requirements of parts 265 and 270. Facilities
that have failed to progress through the monitoring sequence as planned,
should be required to condense the sequence so as to prepare the facility for
permitting as rapidly as possible. Much of this document concentrates on
exploring how enforcement officials can use the requirements of Parts 265 and
270, and other available authorities to design remedies that will ease the
transition between interim and permitted status.
1.2.1 Plume Characterization Under S270.14(c)(4)
In terms of ground-water monitoring, the most significant requirement of
the Part 270 regulations is the provision outlined in §270.14(c)(4). This
provision requires applicants to describe any plume of contamination that has
entered ground water and define its extent, and provides EPA with the
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authority to compel sampling for the broad list of constituents listed in
Appendix VIII of Part 261 (hereafter referred to as "Appendix VIII").
This provision applies to all facilities that have detected plumes under
interim status monitoring and to facilities that have not detected plumes if
the facility's interim status system is not capable of detecting a plume
should it occur.3 Facilities with inadequate 265 monitoring systems should
not be allowed to avoid Appendix VIII sampling and assessment activities
simply because they have avoided compliance with RCRA ground-water monitoring
requirements in the past. Moreover, such facilities should not allowed to
delay undertaking the more comprehensive assessment and sampling activities
mandated by S270.14(c)(4), by first going back and implementing the less
demanding monitoring protocol established in Part 265. Requiring these
facilities to sample for Appendix VIII constituents is consistent with the
language of §270.14(c)(4) and the general purposes of the Part 265
requirements.
One of the purposes of the Part 265 regulations was to prepare
facilities for permitting. EPA assumed that data from detection and
assessment monitoring under Part 265 would identify facilities that had
contaminated ground water. These data would serve as the foundation for
developing the ground-water information required to be submitted in Part B of
the permit application [S270.14(c)]. Where an owner/operator has not complied
with Part 265 monitoring requirements, however, EPA cannot determine whether
3 This interpretation has been consistently advanced in all previous
guidance documents that address this issue. (See: the RCRA Permit Writer's
Guidance Manual For Ground-water Protection. October 1983, p. 204; and the
November 29, 1984 policy memorandum from Lee Thomas and Courtney Price,
entitled, "Part B Applications with Incomplete Ground-water Monitoring Data.")
Moreover, this expectation has been made known to facility owners through the
Permit Applicant's Guidance Manual. May 1984 (See pps. 9-42 and 9-43).
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the facility has contaminated ground water and hence cannot easily determine
which ground-water monitoring program should be written into the facility's
permit.
At this point in the program, allowing an applicant to comply with the
literal requirements of Part 265, however, would cause unacceptable delays.
An applicant that needed to "start-over" by installing or relocating
monitoring wells could require as much as two and one-half years to complete
the entire Part 265/Part 270 monitoring sequence (see time line in Figure
5.2). Consequently, where EPA finds that an applicant has not instituted an
adequate monitoring program under Part 265, the Agency will require
owner/operators to condense the part 265/Part 270 monitoring sequence in order
to generate the ground-water data necessary for permitting (closure or post-
closure) as quickly as possible. This condensed monitoring program is
described in more detail in Chapter 5.
1.3 Overview of the Administrative Enforcement Process
The unique character of the transition period from interim status to
permitting demands both increased coordination between permit writers and
enforcement staff and a new conceptual approach to the enforcement process.
The cornerstone of this new approach is the fashioning of technical ground-
water remedies that satisfy the Agency's long term regulatory objectives.
To implement this approach, the Agency recommends a three-step
enforcement process (see Figure 1.1). STEP 1 is to outline the technical
remedy sought. In most cases, this step will require considerable planning
and close coordination between the enforcement staff and the permitting staff.
Enforcement officials and permit writers must work together to construct
remedies that generate the information necessary for permitting while
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CASE INITIATION
Enforcement Initiated
a) Routine inspection
b) Intensive ground-water
inspection
c) File review
d) Outside referral (e.g.,
State agency)
Figure 1.1 MODEL OF THE ENFORCEMENT PROCESS
STEP 1
STEP 2
STEPS
FASHIONING THE
TECHNICAL REMEDY
DESIGNING THE
ENFORCEMENT
STRATEGY
DEVELOPING THE
ORDER
Permit Initiated
a) Referral to enforcement
for historically
recalcitrant owner
b) Referral to enforcement
after unsuccessful
attempt to gain
compliance through
NOD process
c) Referral to enforcement
after abbreviated
technical assessment
conducted during
Persons involved:
1. Technical enforcement
staff
2. Permit writer
Persons involved:
1. Technical enforcement
staff
2. Regional Counsel
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Persons involved:
1. Technical enforcement
staff
2. Regional Counsel
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correcting deficiencies in the facility's interim status monitoring system.
STEP 2 is to develop an enforcement strategy to secure the desired
remedy. Central to this effort is the selection of the order authority best
suited to compel the remedy. If regulatory provisions have been violated, the
enforcement staff should determine whether the desired remedy can be secured
through a §3008(a) order citing these violations. (See Chapter 4 for a
description of the order authorities and a discussion of their use.) If there
is a question whether the entire remedy can be compelled using a §3008(a)
order, enforcement staff should consider using a different enforcement
authority (e.g., $3008(h), S3013, §7003 or CERCLA §106 orders), or a
combination of authorities if necessary.
STEP 3 of the administrative enforcement process is the development of
the order. The order is the mechanism by which the Agency ensures that the
desired remedy is actually executed by the facility. The goal of this step is
to formalize exactly what actions the respondent must take in order to come
into compliance. The more explicitly the Agency can express its expectations,
the less opportunity there is for misunderstanding, wasted effort, and delay.
As chapter 6 explains, it is important to develop this specificity as early in
the enforcement process as possible, although unless default is expected, it
may not be necessary to express it in the compliance order accompanying the
complaint. Chapter 6 provides guidance on how to write orders that are easily
enforced and effective a achieving the remedy developed in STEP 1.
1.3.1 Case Initiation
Targeting cases for this enforcement process is the responsibility of
both the enforcement staff and the permits staff.
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In the enforcement program, cases generally evolve from the discovery of
an inadequate interim status monitoring program. Inadequate systems may be
identified as a result of routine facility inspections, more detailed ground-
water inspections, or enforcement file reviews. Once a problem-facility is
identified, enforcement staff should immediately contact the permits staff to
determine the facility's status vis a vis the permitting program.
Early coordination with the permits staff is important for two reasons.
First, the permits staff may have information on the site that could aid in
the development of an enforcement action against the facility, where
complete, for example, a Part B application can provide valuable information
regarding a facility's wastes, the hydrogeology of a site, etc. Even where
deficient, a Part B application can prove useful to enforcement officials by
highlighting gaps in the facility owner's understanding of his/her site.
Second, coordination is necessary to avoid duplication of effort and to
ensure that actions taken by the enforcement division are "consistent with"
and "supportive of" the permitting process. Consistency is important so that
the Agency presents a unified front to the facility. For example, before
issuing a complaint the enforcement staff should know whether there is an
outstanding Notice of Deficiency (NOD) compelling the same activities.
"Supportive of permitting" implies consideration of permit writer's
informational needs when designing remedies. The permit writer must become
involved in the enforcement process early on so that (s)he can ensure that
his/her own permit-writing needs and the facility's future Part 264 monitoring
needs are accurately represented and accounted for during the development of
the remedy.
Cases may also enter the enforcement process via the permits staff. In
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fact, permit writers (by virtue of their Part B reviews) are often in the best
position to identify problem cases. Permit writers are encouraged to refer
cases to enforcement and use enforcement staff to facilitate the permit
process.
Enforcement involvement may be appropriate, for example, when a facility
has submitted a highly deficient part B and past dealings with the company
have demonstrated that the owner/operator is unlikely to correct deficiencies
in a prompt and forthright manner. In such cases, the permit writer should
consider referring the case to enforcement immediately after issuing a general
NOD that requires the submittal of the missing information within a very short
period of time. Historically recalcitrant applicants should not be given long
periods of time under the informal NOD process to generate data/information
that they should have developed by the due date of their permit; rather they
should be compelled to develop this information on an enforceable compliance
schedule pursuant to an order. Likewise, if a permit writer has failed to
make progress using the NOD mechanism, (s)he should work with the enforcement
division to use formal mechanisms to compel compliance rather than continue to
issues NODs.
Permit writers should also expand their initial "completeness" review of
incoming part B's to include an abbreviated technical assessment of the
ground-water monitoring portion of the application, while the permitting
staff clearly does not have the resources to consider all Part B applications
in full as they arrive, there are benefits in focusing briefly on the parts of
each application that are particularly troublesome for the regulated
community, are environmentally sensitive, or will require a long time for the
facility to revise if the application is inadequate. Some aspects of an
application are so central to the adequacy of the permit in general that it
may be wise to perform an abbreviated assessment up front, rather than wait
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until the entire permit can be reviewed to discover the correct major
deficiencies (e.g., the facility must install an entirely new well system
before it can generate the data necessary for permitting).
The consequences of not identifying such deficiencies up front could be
significant delays in the permitting process of a weakening of future
enforcement cases because so much time has elapsed between the submittal of
the application and the issuance of a complaint. If permit writers did
conduct abbreviated reviews on the ground-water portion of incoming
applications, they could refer cases with major deficiencies to the
enforcement staff. Enforcement officials could then use the combined
authorities of Parts 265 and 270 (or other authorities as necessary) to
advance the facility to the point where the ground-water monitoring portion of
the permit could be easily written when the facility's full application comes
up for review.
1.3.2 Facility Management Planning
The enforcement process as described above demands a high level of
coordination between the enforcement and permitting staffs. For any
particular facility, the Agency and States must decide whether ground-water
problems should be addressed through enforcement or through the permitting
process. Facility Management Planning (FMP) is the mechanism that Regions and
States should use to orchestrate this division of labor.
As described in the Revised FY85 and FY86 RCRA implementation Plans
(RIP), the draft National Permit Strategy (April 8, 1985), and the draft FMP
guidance (July 12, 1985), Facility Management Planning is an Agency tool for
coordinating effort and resources between the Regions/States and
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enforcement/permitting. Regions must develop a Facility management Plan for
all "environmentally significant" facilities according to a schedule laid out
in the RIP. Each plan must identify: 1) what action(s) should be taken at
(or by) a facility; 2) what tool (e.g., order, NOD, post-closure permit)
should be sued to compel the action; and 3) who (State or Region, enforcement
or permitting) has lead responsibility for ensuring that the action is
completed.
Decisions regarding the above points evolve from a "facility analysis"
conducted by representatives from Regional and State permitting and
enforcement offices. During the facility analysis, the various
representatives review the information available on a facility (e.g., Part B,
inspection reports, etc.) and begin formulating a strategy for handling that
facility in the short and long term. All strategies devised for individual
facilities must be in accord with the RIP and other Agency policies.
Where actual or potential ground-water contamination exists, the
strategy will generally include data or information gathering to support the
long-term goal of either issuing the facility an operating permit or closing
the facility and implementing corrective action for releases into ground
water.
It is during the facility management planning process that enforcement
officials and permit writers can initiate the type of coordination necessary
to implement a range of option including this guidance. The review group, for
example, may decide that eventually a facility should be issued a permit, but
in the interim the Agency should use an order to compel the facility to
investigate possible ground-water contamination and develop the appropriate
permit application data and plans. At this point, the lead enforcement
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official should solicit the assistance of the permit writer in formulating the
technical remedy necessary to advance the facility toward permitting.
1.4 Relationship to "Late and Incomplete Part B Policy"
on September 9, 1983, Lee Thomas and Courtney Price issued a memorandum
entitled, "Guidance on Developing compliance Orders Under section 3008 of the
Resource Conservation and Recovery Act; Failure to Submit and submittal of
Incomplete Part B Permit Applications." This memo, commonly referred to as
the "Late and Incomplete Part B Policy," affirmed the Agency's authority to
take enforcement action for late and incomplete permit applications. It set
out the procedures for addressing part B violators and established a flat
penalty amount that should be assessed in each case.
The Late and incomplete Part B policy-has been largely superseded by
more recent policies and is further modified by this document. First, the
"Enforcement Response Policy" (December 21, 1984) established that submittal
of a late, incomplete or inadequate Part B is a Class I violation (see page
18). In addressing Class I violations the Enforcement Response Policy states
that EPA and the States may issue warning letters prior to §3008(a) complaints
if they wish but are not required to do so. Therefore, the directive in the
Late and Incomplete Part B Policy that warning letters should always precede
§3008(a) is superseded.
Section, the Late and Incomplete part B Policy established a flat
penalty amount of $5,000.00. That requirement has since been superseded by
the "RCRA Civil Penalty Policy" (May 8, 1984), which establishes a matrix that
should be used to determine administrative penalty amounts. The matrix is
based on two factors, the degree of a handler's deviation from regulatory
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requirements and the potential for harm presented by the violation. Thus,
penalty amounts should be determined individually for each Part B violator;
the flat $5,000.00 amount should not be applied automatically.
Finally, the Late and Incomplete part B Policy envisioned issuing
complaints that require, simply, the submittal of missing information. The
Agency has since realized, however, that incomplete Part B's seldom represent
mere oversights on the part of the applicant. More often, Part B's are
incomplete or inadequate because the applicant failed to generate the required
information and/or failed to comply with interim status requirements.
When issuing a complaint against a Part B violator, the Region or State
should not merely require the respondent to "submit the information required
in Section 'XYZ' of the regulations." Rather enforcement officials should
determine the underlying reasons for the poor Part B and detail in the
proposed order that needs to be done to ensure a proper submittal. Often the
reasons behind an inadequate Part B are extremely complex, especially when the
deficiencies involve ground-water monitoring. Enforcement officials can help
ensure the adequacy of the next submittal by outlining in the order the nature
and scope of the work to be performed. Further, Regions and States should
generally assess penalties for all Part 270 violations and any contributing
Part 265 violations.
1.5 Structure of this Document
This document is divided into six chapters, chapter 2 presents an in-
depth discussion of the Part 265 and Part 264 ground-water monitoring
regulations. Chapter 3 builds upon this framework and explores the
interrelationship between the two sets of regulations. These two chapters are
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designed to give enforcement officials the regulatory perspective they will
need to design ground-water remedies that are consistent with and supportive
of the permitting process.
Chapter 4 provides an overview of the enforcement tools available to
secure desired remedies. It compares and contrasts the various order
authorities and discusses some of the factors enforcement officials should
consider when designing enforcement strategies.
chapter 5 discusses how to fashion a technical remedy. The chapter uses
a case-study approach to illustrate how enforcement officials can construct
remedies that correct present violations while advancing a facility toward
permitting. The chapter develops a model remedy for typical "transition-
period" facility and then describes how to use the combined authorities of
Part 265 and 270 to secure that remedy.
Finally, Chapter 6 discusses how to write an order to secure the desired
remedy. The chapter emphases the importance of specificity in order writing
and explores various strategies that may be followed in developing and issuing
administrative orders. Appendix A includes a model order that illustrate some
of the principles developed in this chapter.
The Agency has also prepare a draft document entitled, RCRA Ground-Water
Monitoring Technical Enforcement Guidance (TEGD). This document addresses
specific technical elements of ground-water monitoring system design. For
example, it discusses the types of well construction methods that the Agency
considers acceptable for yielding representative water samples. The draft
final version of the TEGD is dated August, 1985 and is available from the
Office of Waste Programs Enforcement (OWPE).
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CHAPTER 2
REGULATORY OVERVIEW
This chapter provides an overview of the Part 265 and Part 264 ground-
water monitoring regulations. It attempts to abstract from the regulatory
language and describe how the programs were intended to function in the real
world. Enforcement and permitting officials are strongly encouraged to read
this chapter even if they are familiar with the regulations.
The chapter discusses only the requirements that apply to hazardous
waste management units. In accordance with the Solid and Hazardous Waste
Amendments of 1984, permitted facilities may soon be required to monitor solid
waste management units as well as hazardous waste management units. However,
the specific requirements applicable to these units have not yet been
established and will not necessarily be identical to the current Subpart F
program detailed below.
2.1 interim status Ground-Water Monitoring - Part 265. Subpart F
The goal of the Part 265 regulations is to ensure that owners and
operators of interim status landfills, land treatment facilities, and surface
impoundments evaluate the impact of their facility on the uppermost aquifer
underlying their site. To achieve this goal, the regulations establish a two-
stage ground-water program designed to detect and characterize the migration
of any wastes that escape from a facility.
The focus of both stages of the program is on evaluating the nature and
extent of leakage, not on the removal or treatment of contamination should it
be detected. Removal and treatment of contamination deemed unacceptable must
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be dealt with through the exercise of the Agency's enforcement authorities
under §3008(h) or §7003 of RCRA, §106 of CERCLA, or through the RCRA
permitting process (See Chapter 4 on Order Authorities and Section 2.2.3 of
this chapter).
2.1.1 Detection Monitoring
Detection monitoring, the first stage of interim status monitoring, is
required at interim status land disposal facilities unless the owner/operator
can demonstrate that there is a low potential for migration of hazardous waste
from his/her facility to water supply wells or to surface water. The
objective of detection monitoring is to determine whether a land disposal
facility has leaked hazardous waste into an underlying aquifer in quantities
sufficient to cause a significant change in ground-water quality.
To accomplish this objective, the regulations direct the owner/operator
to install a monitoring network which includes wells located downgradient. from
the facility at the limit of the waste management area and wells located
upgradient that are capable of providing samples representative of ground
water unaffected by the facility. Although the regulations recognize that for
a small site with the simplest hydrogeologic subsurface three downgradient
wells and one upgradient well might suffice, the number, depth, and location
of wells must ultimately be selected so that the network meets the regulatory
performance standard of immediately detecting any migration of statistically
significant amounts of hazardous waste or hazardous waste constituents into
the uppermost aquifer [§265.91(a)].
To determine whether leakage has occurred, the owner/operator must
compare monitoring data collected downgradient from his/her facility to
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background water quality data established over an initial period of one year.
The comparison is based on three sets of parameters designed to characterize
water unaffected by the facility and to predict possible leakage of hazardous
waste.
The first set of twenty parameters, listed in Part 265 Appendix III,
defines the general suitability of the aquifer as a drinking water supply.
These parameters were selected because they are recognized by the Safe
Drinking Water Act as important to overall drinking water suitability.
The second set of parameters (chloride, iron, manganese, phenols,
sodium, and sulfate) establish general ground-water quality and can be used to
characterize the suitability of ground water for a variety of non-drinking
uses. Information on these parameters is largely collected in anticipation of
future confirmation of leakage, should detailed assessment of ground water
prove necessary, historical data on these major ion groups will help
owner/operators predict the mobility of hazardous waste under actual site
conditions.
The final set of parameters includes four measures selected as gross
indicators of whether contamination of ground water has occurred. These four
indicators - pH, specific conductance, total organic carbon (TOC), and total
organic halogen (TOX) - were chosen because of their widespread use, their
well-established test procedures, and their general ability to reflect changes
in the organic and inorganic composition of ground water. Faced with
designing a monitoring program that would be responsive to a large undefined
set of chemical compounds at unspecified concentrations, the Agency chose to
rely on broad, surrogate measures that could predict whether significant
contamination had occurred.
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The regulations require the owner/operator to sample and analyze for all
three sets of parameters quarterly for one year. Quarterly sampling is
required so that seasonal effects will be incorporated into the
characterization of background water quality. At the end of the first year,
the owner/operator must establish background for each contamination indicator
by averaging the quarterly measurements obtained for that parameter from the
upgradient wells. These upgradient mean values are important because they
establish the initial background concentrations to which all subsequent
upgradient and downgradient concentrations will be compared.
After initial background is established, the owner/operator continues
sampling on a less frequent schedule. The ground-water quality parameters
(chloride, phenol, etc.) must be analyzed at least annually and the
contamination indicators (TOX, pH, etc.) at least semi-annually.
At this point, however, detection monitoring begins to focus more
specifically on the four contamination indicators. Each time a facility
samples for a contamination indicator, the owner/operator must compare the
values obtained from his/her upgradient and downgradient wells with the mean
values obtained for that parameter during the first year of background
sampling. (Note that both upgradient data and downgradient data are compared
to first year mean data derived from upgradient wells.) The regulations
specify that the facility owner should use a student's t-test to the .01 level
of significance when making comparisons [265.93(b)J.
If a student's t-test for an upgradient well shows a significant
increase in the concentration or value of an indicator parameter (or any
change in pH), it may mean that sources other than the facility are affecting
round water. Alternately, a change in upgradient water quality could be due
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to mounding of contaminated ground water beneath the facility or a change in
hydraulic gradient such that originally upgradient wells are now downgradient
relative to the facility. (This condition would be reflected in changes in
ground-water elevation measurements over time.) whatever the cause, a
significant change in upgradient water quality should be investigated and
noted in the company's annual report to the Agency [§265.94(a)(2)(ii)].
A student's t-test for a downgradient well that shows an increase in an
indicator parameter (or any change in pH), signals potential ground-water
contamination and is the first indication that a facility may be leaking. If
a statistically significant change is detected, the facility moves into the
second phase of interim status monitoring, ground-water assessment.
2.1.2 Assessment Monitoring
Once a significant change in water quality triggers a facility into
assessment, the owner/operator must notify the Agency and submit a proposed
program for determining whether hazardous wastes or their constituents have
entered ground water and if so, their concentration, rate, and extent of
migration [§265.93(d)(2)]. Because detection monitoring parameters are non-
specific, a statistically significant change in one parameter may not
necessarily represent migration of hazardous waste constituents into ground
water. For example, pR could change independent of contamination if recharge
patters at the site shifted such that ground water infiltrated through
formations with significant buffering capacity. The first step in assessment
monitoring, therefore, is to determine whether hazardous waste constituents
have indeed migrated into ground water.
In many cases, the detection monitoring network already installed at the
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site can be used for this purpose. Of course, use of the existing system
assumes that the network is capable of detecting low part per billion levels
of hazardous waste constituents (listed Appendix VII of Part 261 and in
§§261.24 and 261.33) in the uppermost aquifer. If sampling reveals no
contamination, the owner/operator may return to his original detection
protocol or enter into a consent agreement with EPA to follow a revised
protocol designed to avoid future false triggers. If, on the other hand,
contamination is confirmed, the owner/operator must begin characterizing the
rate and extent of migration.
Normally, assessment monitoring will require installation of additional
well clusters located to define the vertical and horizontal extent of the
plume. Unlike detection monitoring where wells would be placed more or less
evenly along the downgradient border of the waste management area, wells in
assessment monitoring could be concentrated in one area of the site so as to
track the migration of a localized discharge. In addition to direct sampling
for hazardous waste constituents, the owner/operator may rely on indirect
techniques, such as electrical resistivity or ground-penetrating radar, to
help define the boundaries of a plume.
Based on these techniques, the owner/operator must submit to EPA (as
soon as technically feasible), a written report assessing the quality of
ground water at the facility §265.93(d)(5)). After this initial assessment of
ground-water contamination, the facility must continue assessment monitoring
at least quarterly until the facility closes or is permitted. Additionally,
the owner/operator must continue detection monitoring in any wells unaffected
by the initial leak (i.e., wells away from the edge of the plume where no
hazardous waste constituents have been detected or wells around other non-
leaking units).
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It is important to note that no direct regulatory consequences flow from
a finding of contamination in assessment monitoring. The purpose of
assessment monitoring is strictly to acquire information to support future
decisions regarding the need for corrective action. The purpose does not
include determinations of whether or not such facilities are environmentally
acceptable, strategies for cleaning up unacceptable contamination must be
developed through the permitting process or through enforcement action under
§3008(h), §7003, or under CERCLA §106.
2.2 Permit Regulations for Ground-Water Monitoring - Part 265, Subpart F
The primary goal of Part 264 ground-water monitoring is to ensure that
owners and operators of facilities handling hazardous waste detect any release
of contamination into ground water and take corrective action when such
contamination threatens human health or the environment. To achieve this
goal, the regulations establish a three-stage program designed to detect,
evaluate, and correct ground-water contamination arising from leaks or
discharges from hazardous waste management facilities. The program is
graduated so that the monitoring and clean-up responsibilities of the
owner/operator expand as the impact of the facility on ground water becomes
better understood.
2.2.1 Detection Monitoring
The first stage of the program, detection monitoring, is implemented at
facilities where no hazardous constituents are known to have migrated from the
facility to ground water. Applicants who are seeking permits for new
facilities or for interim status facilities have not triggered into
assessment, would generally qualify for Part 264 detection monitoring (the
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latter assumes, of course, that the interim status monitoring network is
adequate to detect contamination).
The actual monitoring requirements of Part 264 detection are similar to
those already imposed under the interim status regulations. In the preamble
to the regulations EPA expressed the expectation that properly designed
interim status networks would be sufficient for most permit detection systems.
In Part 264 detection monitoring, however, the permittee routinely monitors
for a select set of indicator parameters specified in the permit rather than
for the four indicator parameters specified in the Part 265 regulations.
Should the arrival of leachate from the facility be indicated by an increase
(or pH decrease) of any of the parameters relative to background, the
permittee must immediately sample for all constituents listed in Appendix VIII
in order to determine the chemical composition of the leachate.4 In
addition, the owner/operator must submit, within 180 days, an engineering
feasibility plan that outlines an approach for cleaning up ground water should
clean up prove necessary §264.98(h)(5)]. The facility in turn is obligated to
move into the next phase of the Part 264 ground-water program - compliance
monitoring.
2.2.2 Compliance Monitoring
The goal of compliance monitoring is to ensure that leakage of hazardous
constituents (Part 261 Appendix VIII constituents) into ground water does not
4 The Agency may use enforcement discretion so as not to require sampling
for those substances that are unstable in ground water or for which there
exists no EPA-approved test method. For a list of these substances see the
August 16, 1984 memo from Courtney Price and Lee Thomas entitled, "Enforcing
Ground-Water Monitoring Requirements in RCRA Part B Permit Applications." The
Agency has also proposed to waive monitoring requirements for such substances
(See 49 FR 38786, October 1, 1984).
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exceed acceptable levels. Through the permit, therefore, the Agency and the
facility must specify what level of each constituent will be considered
environmentally acceptable and then establish a program of routine monitoring
to ensure that acceptable levels are not exceeded. If concentration limits
are exceeded, the permittee must institute a corrective action program
designed to bring the concentration levels back within acceptable limits.
The permit writer establishes the framework for a compliance monitoring
program by incorporating a ground-water protection standard into the permit.
The standard consists of four elements, each of which must be specified in the
permit.
The first element of the standard is a listing of all Appendix VIII
hazardous constituents present in ground water that could reasonably have been
derived from the facility. The burden of demonstrating that a particular
Appendix viil constituent could not reasonably be derived from a facility,
lies with the owner/operator. Claims of exclusion must be based on a detailed
chemical analysis of the facility's waste and must consider possible chemical
reactions that could occur in the facility or during the migration of leachate
into ground water. An exclusion is also available for an individual
constituent if the owner/operator can demonstrate that it is incapable of
posing a substantial present or potential hazard to human health or the
environment. Given this standard of proof, however, exclusions will be
granted rarely; the ground-water protection standard of most facilities,
therefore, will include all Appendix VIII constituents detected in ground
water.
The basis for identifying the Appendix viil constituents present in
ground water will vary depending on the status of the facility at the time of
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establishing the protection standard. Facilities that are operating under
detection monitoring permits will have identified the Appendix VIII
constituents present in ground water as part of their detection monitoring
responsibilities [see §264.98(h)(2)]. Facilities that have not yet received
permits and are operating under Part 265 assessment monitoring, however, may
have to perform additional sampling because assessment monitoring requires the
determination of Appendix VII substances rather than the full complement of
constituents listed in Appendix VIII. (Appendix VII is but a subset of
Appendix VIII - see Section 3.3 for further explanation of this point).
Consequently, the facility owner in Part 265 assessment monitoring will have
to undertake additional sampling and analysis before the facility can be
permitted. [Note: the permit application regulations (Part 270) require
facilities to characterize plumes with respect to Appendix VIII constituents
(see S270.14(c)(4))].
The second element of the ground-water protection standard is the
specification of a concentration limit for each hazardous constituent listed
in the facility permit. Where possible, concentration limits must be based on
well established numerical concentration limits for specific constituents.
Where established standards are not available, the permit writer must set
concentration limits so as to prevent degradation of water quality unless the
owner/operator can demonstrate that a higher limit will not adversely affect
public health or the environment. Following this approach, limits must be set
at either:
1) the maximum concentration limit for drinking water established by
the National interim Primary Drinking Water Regulations (where
applicable);
2) the background level of the constituent in ground water; or
3) an alternate concentration limit (ACL) if the owner/operator can
demonstrate that a higher concentration will not pose a
substantial present or potential hazard to human health or the
environment ($264.94).
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The third and fourth elements of the ground-water protection standard
are the point of compliance and the compliance period. The compliance point
is the location at which the ground-water protection standard applies and
hence is the point where monitoring must occur. The regulations specify that
the point of compliance is the vertical surface located at the downgradient
limit of the waste management ares (§264.95). The compliance period is the
period during which the ground-water protection standard applies. This period
is equal to the active life of the facility plus the closure period [§264.96].
After the ground-water protection standard is established, the permittee
must monitor ground water to ensure that the facility continues to comply with
its protection standard. If properly designed and constructed, the monitoring
network established for detection monitoring should be adequate for this
purpose. In addition, the permittee must sample annually for Appendix VIII
constituents to detect any additional substances that may have entered ground
water. Should sampling reveal a new constituent, the permit writer must amend
the protection standard to include a concentration limit for the new
constituent.
2.2.3 Corrective Action
If compliance monitoring reveals that a facility is exceeding its
ground-water protection standard (i.e., the concentration of a hazardous
constituent in ground water exceeds the maximum limit established in the
permit), the facility must institute a corrective action program. The goal of
corrective action is to bring the facility back into compliance with its
protection standard. To achieve this goal, the facility must develop a plan
for removing the hazardous constituents or for treating the constituents in
place [§264.99(i)(2)]. If approved by the Agency, the permit writer will
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incorporate this plan into the facility permit.
The permit writer must also include in the permit a program of ground-
water monitoring adequate to demonstrate the effectiveness of the corrective
action measures [§264.100(d)]. At the limit of the waste management area,
this program will be essentially the same as the compliance monitoring program
although permit writers may want to increase the number of wells and the
frequency of monitoring at or near the compliance point where the plume
appears to be concentrated. Also, owner/operators will be required to install
additional monitoring wells near the downgradient edge of the plume so that
the Agency can monitor the effectiveness of the corrective action program.
The permittee must implement corrective action measures until compliance
with the ground-water protection standard is achieved. Once contamination has
been reduced below the concentration limit set in the permit, the facility may
discontinue corrective action measures and corrective action monitoring, and
return to the monitoring schedule established for compliance monitoring. If
compliance is not achieved before the end of the compliance period specified
in the permit, the permittee must continue corrective action until monitoring
shows that the ground-water protection standard has not been exceeded for
three years [§264.100(f)].
2.3 Permit Application Regulations - Part 270
Part 270 of the regulations specifies the information an applicant must
submit to the Agency when applying for a permit. The information requirements
related to ground-water monitoring can be organized into two basic groups.
The first group, outlined in $270.14(c), establishes the nature of the
facility's impact on ground water, as well as the hydrogeologic
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characteristics of the site's subsurface and the extent of the waste
management area. The second group includes the information necessary to
establish one of the three Part 264 ground-water monitoring and response
programs (detection monitoring, compliance monitoring, and/or corrective
action).
2.3.1 Information Requirements of S270.14(c)
Section 270.14(c) includes four basic information requirements. First,
applicants must present the data collected during interim status monitoring
(where applicable). If the facility has implemented a satisfactory monitoring
system under interim status, these data should provide information useful for
determining whether hazardous constituents have entered ground water. The
Permit Applicant's Guidance Manual for Hazardous Waste Land Treatment,
Storage, and Disposal Facilities (May, 1984) states that this provision
requires submittal of background information to support these data as well as
the data themselves. For example, the Applicant's manual instructs
owner/operators to submit:
O a map showing the location of upgradient and downgradient
wells;
O a copy of the facility's sample and analysis plan;
O a description of the statistical procedure used in
processing the data submitted;
O copies of water analysis results; and
o a description of the design and construction of each well.
Second, the applicant must identify the uppermost aquifer and
hydraulically interconnected aquifers beneath the facility property. The
application must indicate ground-water flow directions and provide the basis
for the aquifer identification (i.e., a report written by a qualified
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hydrogeologist on the hydrogeologic characteristics of the facility property
supported by at least the well drilling logs and available professional
literature). This information is needed to evaluate the adequacy of the
ground-water monitoring system that the applicant proposes to operate after
the permit is issued. (Readers are referred to the Permit Applicant's Manual
for a discussion of what constitutes an adequate hydrogeologic investigation;
additional guidance will be provided by the final TEGD).
Third, §270.14(c)(3) requires the applicant to delineate the waste
management area, the property boundary, the proposed point of compliance.
This information should be transposed onto a topographic map along with, to
the extent possible, the designatio of the uppermost and any interrelated
aquifers.
Finally, §270.14(c)(4) requires applicants to describe any plume of
contamination that has entered ground water by:
O delineating the extent of the plume; and
O identifying the concentration of each Appendix VIII
constituent throughout the plume of identifying the maximum
concentrations of each Appendix VIII constituent in the
plume.
This requirement applies to the following three categories of facilities:
1. Facilities where no interim status monitoring data are available
(e.g., waste piles, facilities that wrongly claimed a waiver from
interim status ground-water monitoring requirements);
2. Facilities whose interim status data indicate contamination; and
3. Facilities whose Part 265 detection monitoring system is
inadequate to determine whether or not a plume of condemnation
exists.
As the Permit Applicant's Guide indicates Page 9-42), the permit writer
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will evaluate the ability of the facility's well network and sample and
analysis plan to determine the presence of a plume. If EPA determines that
the interim status monitoring program was inadequate to detect contamination,
the applicant will be instructed to provide the information required by
§270.14(c)(4).
2.3.2 Information Requirements for Appropriate Part 264 Ground-Water
System
Part 270 also requires permit applicants to submit information
sufficient to establish the appropriate ground-water monitoring program under
Part 264. The information requirements relevant to any particular facility
depend on the status of that facility at the time of permitting. If
monitoring conducted pursuant to Part 265 and Section 270.14(c)(4) has not
revealed contamination, the applicant must submit the information, data, and
analysis necessary to implement a detection monitoring program. If monitoring
has revealed the presence of hazardous constituents in ground water at the
point of compliance, the applicant must outline a program of compliance
monitoring and submit a study that estimates the engineering feasibility of
various forms of corrective action [§27Q.14(c)(7)]. Where the concentration
of a hazardous constituent exceeds background or an alternate concentration
level proposed by the applicant, (s)he must instead submit a detailed plan for
corrective action and description of the monitoring program intended to
demonstrate the adequacy of the corrective measures [S270.14(c)(8)]. Detail
concerning the specific information required to support each type of
monitoring program is provided in the regulations and expanded upon in the
Permit Applicant's Guidance Manual SS 9*6 ~ 9-8-
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CHAPTER 3
REGULATORY COMPARISONS
In order to devise enforcement strategies that are consistent with and
supportive of the permitting process, it is important to have an understanding
of how the Parts 265 and 264 ground-water monitoring regulations interrelate.
As mentioned previously, the Agency envisioned the interim status period as a
time in which to develop, among other things, the information necessary to
support permitting. Indeed, one of the overall goals of interim status
monitoring was to generate the data necessary to decide whether the facility
permit should include a detection monitoring program, a compliance monitoring
program, or a program for corrective action.
In short, the Agency envisioned a smooth transition from interim status
detection monitoring, through assessment, to final permitting. A facility
would proceed from one phase of monitoring to the next by building upon the
monitoring system implemented during the previous stage, while interim status
monitoring focused on a smaller number of constituents in order to limit the
routine monitoring obligations of the owner/operator, the Agency never
considered the physical well networks of the Part 265 and Part 264 programs
fundamentally different. Sampling protocols and schedules would change to be
consistent with the new objectives of each monitoring phase, but the physical
well network (if properly designed) could serve throughout the life of a
facility. A Part 265 detection system, for example, may need to be expanded
to meet the needs of compliance monitoring, but with proper foresight, the
existing wells need not be replaced.
Unfortunately, certain interim status monitoring systems are
insufficient in quality and breadth to meet the Part 265 standards, of those
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that meet the minimum standards, few have been designed in expectation of the
facility's future monitoring obligations. As a result, facilities that should
be close to meeting their part 264 ground-water obligations, are in fact not
prepared for the permitting process.
If enforcement officials are going to help bridge this gap, they must
have a thorough understanding of exactly how the Part 265 nd Part 264
regulations interrelate. To aid officials in this effort, this chapter will
outline the major similarities and differences between the requirements of
three ground-water monitoring programs: Part 265 detection vs. Part 264
detection; Parts 264/265 detection vs. compliance monitoring; and part 265
assessment monitoring vs. plume characterization activities conducted pursuant
to S270.14(c)(4).
3.1 Part 265 vs. Part 264 Detection Monitoring
3.1.1 Well Placement
For all practical purposes, the requirements governing well placement
are the same for both part 265 and part 264 detection monitoring. Whereas the
regulatory language differs slightly, a network designed to meet the Part 265
standard should be substantially the same (in terms of well locations and
depths) as one designed to meet the Part 264 standard.
Both programs include a performance standard for background well
placement that requires a sufficient number of wells, installed at appropriate
locations and depths, to yield ground-water samples that are: 1)
representative of the background water quality in the uppermost aquifer; and
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2) unaffected by leakage from the facility [Compare §265.91(a)(1) with
§264.97(a)(1) and §264.97(a)(2)]
Both programs also include similar language regarding the placement of
downgradient wells, although the Part 265 regulations require placement at the
"limit of the waste management area," whereas the Part 264 regulations require
placement at the "point of compliance" [cf., 265.91(a)(2) and 264.97(a)(2)].
While worded differently, the physical well location dictated by both programs
is, by definition, essentially the same. The regulations define the "waste
management area" as "the limit projected in the horizontal plane of the area
on which waste will be placed during the active life of a regulated unit"
[§264.95(b)].5 Where there is more than one unit at a facility, the waste
management area is described by an imaginary line circumscribing the various
units. Hence, wells in Part 265 detection monitoring must be placed at the
edge of the waste management area.
Wells in Part 264 detection must also be placed at the edge of the waste
management area because the point of compliance is, by definition, the edge of
the waste management area projected downward into the uppermost aquifer [see
§264.95(a)]. The point of compliance is, therefore, the limit of the waste
management area described in three dimensional space (See Figure 3.1). Both
regulations mandate, consequently, that wells are located along the same thin
5 The Permit Applicant's Manual further qualifies this definition by
noting that for Part 265 systems, EPA will valuate the areal extent of the
waste management area at an expanding facility against the regulatory mandate
to choose well locations so as "to immediately detect" the migration of
hazardous waste into the uppermost aquifer. For permit applications, EPA will
evaluate the proposed waste management area against the policy of designing
monitoring programs so as to give an early warning of the release of
contaminants. In either case, EPA does not recommend that facility owners
propose a waste management area whose limit is geographically remote from the
active waste handling zone. Rather, monitoring wells should be closely
associated with the active zone even if this means redefining the waste
management area as a facility expands.
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FIGURE 3.1
RELATIONSHIP OF THE WASTE MANAGEMENT AREA
TO THE POINT OF COMPLIANCE
LIMIT OF THE
WASTE MANAGEMENT
THREE DIMENSIONAL
POINT OF COMPLIANCE
(WOUND-WATER
FLOW
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land surface. Parts 265 and 264 similarly require well spacings and depths
capable of detecting statistically significant contamination in the uppermost
aquifer.
3.1.2 Indicator Parameters
The concept of sampling for parameters designed "to indicate
contamination" is the same for both parts 265 and 264 detection monitoring.
The Part 265 regulations mandate the use of four specific indicators for all
facilities, whereas the Part 264 regulations require the permit writer to
specify a set of site-specific indicator parameters in each facility permit.
The greater latitude and scope afforded by the Part 264 regulations allows the
permit writer to design the detection program around the particulars of a
specific facility. Rather than rely on broad, generic measures such as TOC,
the permit writer can compel sampling for specific constituents known to be in
the facility's waste. As a result, a Part 264 detection systems can be
designed to be more sensitive than the Part 265 system specified in the
interim status regulations.
3.1.3 Sampling Frequency
Both the Part 265 and Part 264 regulations require quarterly sampling
for one year to establish background, and at least semi-annual sampling
thereafter.
3.1.4 Appropriate Sampling Techniques
The choice of the sampling device and the appropriateness of the
materials used in the device are dictated by the needs of the most sensitive
constituent of interest. In general, the most sensitive constituents will be
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volatile organics because as a class, volatile organics are highly susceptible
to degassing and chemical interference with sampling-device materials (e.g.,
silicon tubing). For most monitoring applications, therefore, the sampling
device will be chosen to meet the needs of volatile organics.
Given that the Part 265 detection program necessarily includes a
volatile organic parameter, TOX, that can be measured reliably at the 5 ppb
level (see Method 9020 in "Test Methods of Evaluating Solid Waste, SW-846),
sample device selection for interim status monitoring will always be dictated
by the needs of volatile organics. Therefore, if a Part 264 detection program
includes sampling for any volatile organic, then the sampling devices and
materials appropriate for each program would be the same. Considering that
264 detection systems almost always contain at least one volatile organic
indicator, the sampling requirements of both 265 and 264 detection monitoring
will be essentially equivalent in most cases.
It is conceivable, however, that a sampling device appropriate for Part
264 sampling would NOT be appropriate for Part 265 detection if the permit
writer did not require sampling for any volatile organics (e.g., if the
facility were a monofill of hexavalent chromium and the permit writer elected
chromium as the only Part 264 detection parameter) . Such a facility could use
a sampling device normally inappropriate for measuring volatile organics. if,
however, a chromium waste facility over detected contamination, the
regulations require the owner/operator to sample immediately for the
constituents listed in Appendix VIII (including many volatile organics). The
facility owner, therefore, would have to change sampling devices to ensure
that he acquired representative samples.
Recognizing this fact, it may be in the best interest of the
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owner/operator to consider his/her long-term monitoring needs when purchasing
sampling equipment. To the extent that facility owners purchase and use
equipment for detection monitoring that will still be suitable should leakage
occur, the sampling mechanisms appropriate for 265 and 264 detection
monitoring once again converge.
3.1.5 Statistical Comparisons
Both the Parts 265 and 264 detection monitoring regulations require the
owner/operator to determine whether there has been a statistically significant
increase over background for any indicator parameter specified in the program
(or decrease for pH).
The statistics used to make this determination, however, vary between
the programs in two important ways. First,'the Part 264 detection program
requires the owner/operator to use a specific Student's t-test when defining
significance (the cochran's Approximation to the Behrens Fisher students t-
test), unless he can defend another statistical technique as substantially
equivalent. The Part 265 program, on the other hand, makes no allowance for
an alternate statistical technique, but the regulations do not specify a
particular variant of the Student's t-test; any Student's t-test is
acceptable.
Second, the Part 264 detection regulations require the test to be
applied to the .05 level of significance, while the 265 regulations specify a
significance level of .01. The level of significance sets the balance between
the chances of the test falsely detecting contamination ("false positive") and
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the test failing to identify contamination that has occurred.6 By raising
the level of significance for the Part 264 standards, the Agency achieved
greater assurance that the test would not fail to detect actual contamination.
During the interim status period, the Agency was willing to reduce the chances
of "false positives" by accepting a slightly higher probability of failing to
detect leakage. This balance was acceptable for interim status because the
Agency knew it would have another opportunity to investigate possible leakage
during the permit application process. For the permit regulations, however,
the Agency decided that a lower level of significance would unduly compromise
the ability of the test to detect contamination.
3.2 Part 264 Detection Monitoring vs. Part 264 compliance Monitoring
3.2.1 Well Placement and Network Design
Well placements for compliance monitoring more closely resemble
detection monitoring networks than they do assessment networks. One should
not assume that network configurations for compliance monitoring will resemble
configurations suitable for Part 265 assessment monitoring simply because both
programs represent a second phase of monitoring after detection monitoring.
In fact, in some cases the network installed for detection monitoring will
become the compliance monitoring network; all that will change is the sampling
protocol and the objective of the monitoring program.
Given that compliance monitoring is meant to evaluate contamination
6 Readers should note that this discussion pertains to the false positive
rate caused by the statistical test alone. Many other factors, such as
insufficient number of background wells, can cause a facility to trigger under
detection monitoring when contamination has not actually occurred. In fact,
many "false positives" are not a function of statistics, but are a function of
such things as well location, sampling, and chemical analysis.
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rather than just detect it, there is a strong possibility that existing
detection networks may have to be expanded to meet the broader objectives of
compliance monitoring. The more complicated statistical techniques used to
evaluate monitoring data during compliance monitoring, for example, may
require a greater number of background wells than the statistical approach
used during detection monitoring. Likewise, the permit writer may want to
require additional downgradient wells in the immediate vicinity of those wells
where contamination has been detected.
Additional wells are generally most appropriate when contamination has
been detected in only one or two monitoring wells, indicating a localized
leak, with localized leaks, only a limited amount of dispersion can occur
before the plume passes the point of compliance (see Figure 3.2). As result,
more wells may be necessary to ensure that measurements of contamination
represent the high concentrations characteristic of the plume's center, rather
than the lower concentrations normally found in the plume's periphery.
In short, in some circumstances an existing detection system may have to
be expanded under compliance monitoring, but the general well configurations
for detection monitoring and compliance monitoring are the same.
3.2.2 Establishing Background Concentrations
The regulations specify that background concentrations for Part 265 and
Part 264 detection indicator parameters must be based on quarterly samples for
one year.
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FIGURE 3.2 OSWER Directive # 9931.1
LINED SURFACE
IMPOUNDMENT
FUTURE LOCATION
OF COMPLIANCE
MONITORING WELL
GROUND-WATER
FLOW
TRIGGERING WELL
BREAK IN THE
LINER
LEGEND:
• EXISTING MONITORING WELL
0 PROPOSED MONITORING WELL
CONTAMINANT PLUME
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Under compliance monitoring, however, the regulations grant the
permit writer leeway on how to establish background. (Recall that background
values are very important in compliance monitoring because in many instances,
these background values will be incorporated into the ground-water protection
standard as "concentration limits.")
The permit writer has two options for establishing background values for
compliance monitoring constituents. The permit writer may establish
concentration limits based on the mean of pooled background data available at
the time of permitting. To ensure that sufficient data are available for this
purpose, the permit writer may require the applicant to undertake an
accelerated program of background sampling prior to permitting.
Alternately, if there is a high temporal correlation between up- and
downgradient concentrations, the permit writer may specify that background
values be established by sampling upgradient wells each time ground water is
sampled at the point of compliance. With this approach, background
concentrations are not established by averaging values obtained over time;.
rather, background values are established anew after each sampling event.
3.2.3 Sampling Frequency
Since hazardous constituents are already present in ground water when
compliance monitoring begins, the regulations require a more aggressive
sampling schedule for compliance monitoring than for detection monitoring.
Under detection monitoring, the regulations state that sampling for indicator
parameters should occur at least twice a year (once background is established)
[§265.92(d)(2)]. By contrast, the compliance monitoring regulations require
routine sampling of the hazardous constituents listed in the facility's
protection standard at least quarterly.
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3.2.4 Statistical Comparisons
Whereas the regulation specify the use of a specific t-test protocol
when evaluating monitoring data obtained during detection monitoring, they do
not detail specific procedures for use during compliance monitoring. The
compliance monitoring regulations require that the statistical procedures used
by appropriate for the distribution of data encountered and provide a
reasonable balance between the probability of falsely identifying and failing
to identify violations of the ground-water protection standard.
Moreover, unlike detection monitoring, the compliance monitoring
regulations do not establish a particular level of significance for use when
making comparisons. The high number of comparisons likely in most compliance
monitoring programs will increase the probability of false positives;
therefore, permit writers are granted the latitude to choose a level of
significance that will strike an appropriate balance between the probability
of false positives and false negatives.
3.3 Part 265 Assessment Monitoring vs. S270.14(c)(4) plume Characterization
Both Part 265 assessment monitoring and §270.14(c)(4) require facility
owners to assess any plume of contamination that has entered ground water.
The programs differ, however, in two important ways.
First, the Part 265 assessment program applies only to facilities that
have detected the existence of a plume through Part 265 ground-water
monitoring. The §270.14(c)(4) requirements, on the other hand, apply to any
facility that has not demonstrated the absence of contamination through proper
Part 265 monitoring.
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Second, Part 265 assessment requires monitoring for hazardous wastes or
"hazardous waste constituents" [see S265.93(d)(4)], whereas §270.14(c)(4)
requires sampling for "hazardous constituents." "Hazardous constituents" are
those substances listed in Appendix VIII of Part 261. "Hazardous waste
constituents," as defined in §260.10, are the constituents that provided the
basis for listing each of the hazardous wastes identified in Part 261 Subpart
D, or a constituent listed in Table 1 of §261.24 (constituents with National
Interim Drinking Water standards under the Safe Drinking Water Act.
Appendix VII identifies the specific constituent(s) responsible for the
listing of wastes from the non-specific sources in §261.31 as well as from the
specific sources contained in §261.32. In the case of any of the discarded
commercial chemical products, off-specification products, and spill residues
listed in $261.33, the chemical product itself is considered the constituent
responsible for the listing of the substance in Part 261.
Interim status assessment monitoring, therefore, requires the
owner/operator to sample for any Appendix VII constituent, any substance
listed in §261.33, or any substance listed §261.24 that is in the facility's
waste. Section 270.14(c)(4), on the other hand, requires sampling for the
full complement of Appendix VIII constituents.
This difference between the two programs is significant. Part 265's
reliance on "hazardous waste constituents" rather than on Appendix VIII
constituents could mean that certain constituents in a facility's waste wold
not be include din a Part 265 assessment monitoring program.
A number of factors may be responsible for the exclusion of certain
constituents. First, the constituents identified in Appendix VII as the basis
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for listing individual wastes in Part 261, are not necessarily a complete list
of all hazardous constituents contained in each waste. In developing Appendix
VII, EPA did not attempt to conduct an exhaustive analysis of all constituents
in the waste that could have provided a basis for the listing (§261.11
provides the criteria the Administrator must use when listing a waste).
Rather, the Agency identified a few of the more commonly known constituents in
each waste that could pose a substantial present or potential hazard to human
health or the environment.
Second, Appendix VII only applies to listed wastes; it does not address
hazardous constituents that may be present in wastes deemed hazardous because
they exhibit one of the characteristics in Part 261. Table 1 of §261.24
addresses wastes exhibiting the characteristic of E.P. toxicity, but
"hazardous waste constituents" do not include non-listed wastes deemed
hazardous because of corrosivity, reactivity, or ignitability. Moreover,
Appendix VII and Table 1 of §261.24 were not developed to address the
constituents that may be formed when various wastes are mixed in a regulated
unit, or when wastes react with constituents in the soil. As a result, a Part
265 assessment program could conceivably fail to include a constituent of
concern at a particular facility. It must be recalled, however, that the
interim status regulations were designed to be self-implementing, not
exhaustive.7
7 Chapter 4 explores the various enforcement authorities available to
compel sampling for Appendix vill constituents at interim status land disposal
facilities if such sampling appears necessary. Depending on the circumstance,
a §30008(a) order enforcing §270.14(c)(4), a §3013 order or a §3008(h) may be
used (See section 4.1.1 for further explanation).
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OSWER Directive # 9931.1
CHAPTER 4
OVERVIEW OF ORDER AUTHORITIES
There are a variety of order authorities available to correct ground-
water problems at RCRA hazardous waste facilities. Section 3008(a) of RCRA
provides for the issuance of orders and for the commencement of civil suits
when any requirement of subtitle C is violated. RCRA also establishes
enforcement authorities under Sections 3004(v), 3008(h), 3013, and 7003. Any
of these authorities may be used, in certain circumstances, to address ground-
water problems. In addition, the enforcement authority in $106 of CERCLA may
be available in many cases.6
While there will undoubtedly be instances where it is most appropriate
to file a civil suit under S3008(a), §3008(h), or §7003, or to initiate
criminal proceedings under §§3008(d) and (e), there are three order
authorities that should prove most useful in addressing inadequate ground-
water monitoring programs:
§3008(a) orders seeking penalties and/or injunctive relief for
violations of Part 265 Subpart F and part 270;
§3008(h) orders seeking the investigation and implementation of
corrective action or releases for hazardous waste or hazardous
constituents; and
§3013 orders seeking monitoring, investigations, analyses, and
reporting by facilities that the Administrator has determined may
present a substantial hazard to human health of the environment.
8 For further information on the applicability and scope of CERCLA 106
orders, see the September 8, 1984 memo on the "Use and Issuance of
Administrative Orders under §106(a) of CERCLA" from Less Thomas and Courtney
Price.
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OSWER Directive # 9931.1
This chapter will compare these three order authorities and will
describe some of the factors that enforcement officials should consider when
selecting which authority(ies) to use to compel a specific remedy.
4.1 Comparison of S3008(a). S3008(h). and S3013 Orders
The table on the two following pages presents a comparison of §3008(a),
$3008(h), and §3013 orders with respect to the types of actions that the
orders may compel, the types of situations that may trigger the issuance of an
order, the burden of proof the Agency must satisfy, whether there are formal
administrative proceedings that must be followed, and any special features of
the authority (e.g., the ability to assess penalties). The section of the
chart dealing with §3008(a) orders is divided into the following three
segments:
O §3008(a) enforcing Part 265 detection monitoring
O §3008(a) enforcing Part 265 assessment monitoring
O §3008(a) enforcing Part 270 requirements.
4.1.1 Actions the Orders May Require
As shown in Table 4.1, a §3008(a) order enforcing Parts 265 and 270 can
be used to require the following general categories of ground-water-related
activities:
O a thorough hydrogeologic characterization of the site;
O design and installation of a well network capable of
immediately detecting contamination from the facility;
O specification of well drilling and development methods as
well as casing materials;
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FIGURE 4.1 COMPARISON OF ORDER AUTHORITIES
l
J
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RQURE4.1 COMPARISON OF ORDER AUTHORITIES (Continued)
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OSWER Directive # 9931.1
sampling for any parameter listed in Appendix VII or VIII of
Part 261 or Appendix III of Part 265, or specified in
§265.92 (chloride, iron, manganese, phenols, sodium,
sulphate, pH, specific conductance, total organic carbon,
and total organic halogen); and
a design of the ground-water monitoring system that would be
operated after the permit is issued.
Section 3008(h) and §3013 orders can in many cases be used to obtain the
same baseline injunctive relief available under 3008(a). More significantly,
orders issued under 3008(h) and §3013 may be used to address contamination of
media other than ground water and releases from solid waste management units.
Further, §3008(h) can be used to go beyond the investigation and monitoring
stage to require actual clean up of releases into the environment.
One caution with respect to §3013 and §3008(h) orders is that they may
compel only those actions that are needed to investigate or address a release
of hazardous waste or hazardous constituents [§3008(h)] or a substantial
hazard [§3013]. While there will be cases in which the issuance of orders
under those authorities is appropriate, it may in some cases be necessary to
issue a simultaneous §3008(a) order to obtain compliance with Part 265/270
requirements. Further, penalties for violations of parts 265 and 270 may be
assessed only through issuance of a §3008(a) order.
4.1.2 Conditions for Order Issuance
§3008(a) Orders
A §3008(a) order may be issued only for violation of one or more
Subtitle C requirements. Therefore, when enforcement personnel and the permit
writer determine a facility's ground-water monitoring program to be
technically inadequate, enforcement personnel should determine whether any of
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OSWER Directive # 9931.1
the technical inadequacies constitute violations of Part 265 Subpart F or Part
270.9
In some cases the regulations are specific as to what findings of fact
would indicate violations. For example, if an owner/operator has installed
only two downgradient wells, the facility is clearly out of compliance with
§265.91(a)(2) of the regulations, the section that requires the installation
of at least three downgradient wells. Likewise, if a facility does not have
some of the records specified in the regulations (e.g., an assessment
outline), or has not performed some of the required analyses, then the owner
is clearly in violation. The decision concerning the existence of a violation
becomes more involved when it is based upon evaluating the adequacy of a
facility's ground-water monitoring system beyond the minimum requirements.
In great part, the heightened level of analysis required to evaluate the
overall adequacy of a system evolves from the regulations' reliance on broad
performance standards. Given the great variability between sites in terms of
wastes handled, hydrogeology, and climate, it is impossible to design a
regulatory system that defines for all cases exactly what constitutes an
adequate ground-water monitoring program. As a result, the Agency relies on
performance standards to define "adequate."
The performance-oriented provisions of Subpart F set high standards for
interim status ground-water monitoring systems, and enforcement personnel
should not underestimate the power and applicability of this language. For
example, even though the regulations establish a minimum of one background
monitoring well, a single well is seldom sufficient because owner/operators
9 As cited, herein, references to Part 265, Subpart F and Part 270
include requirements of authorized State programs.
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OSWER Directive # 9931.1
must design their systems to meet the background-well performance standard
listed in §265.91(a)(1). Section 265.91(a)(l) requires owner/operators to
install a sufficient number of wells at appropriate locations and depths to
yield samples representative of background water quality not affected by the
facility. If a facility's well array does not meet this standard, the
owner/operator is out of compliance with the regulations. Figure 4.2
summarizes the Part 265 and Part 270 performance standards relating to ground-
water monitoring.
Figure 4.3, on pages 4-9 through 4-14, illustrates in greater detail the
relationship between certain technical inadequacies of ground-water monitoring
programs and the regulatory performance standards of RCRA. The left-hand side
of the table lists a series of standards that must be met in order to meet the
performance standards summarized in Figure 4.1 (e.g., background-well samples
must be unaffected by the facility). The middle column includes examples of
technical inadequacies that could prevent a system from meeting the left-hand
standards and therefore could represent a violation of one or more of the
performance standards (e.g., failure to consider flow paths of dense
immiscibles when locating background wells). Finally, the right-hand column
lists for each technical inadequacy the performance standard(s) that may have
been violated.
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4-7
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FIGURE 4.2
GROUND-WATER PERFORMANCE STANDARDS
PARTS 265 AND 270
CITATION
STANDARD
§265.90(3)
§265.91 (a)
§265.91 (a)(1)
§265.91 (a)(2)
§265.93(d)(4)
§270.14(c)(2)
§270.14(c)(4)
the owner/operator of a land disposal facility must implement a ground-
water monitoring program "capable of determining the facility's impact on
the quality of ground water in the uppermost aquifer underlying the facility,
. . ." (emphasis added)
a ground-water monitoring system "must be capable of yielding ground-
water samples for analysis . . ."
the number, locations, and depths of background monitoring wells must
be "sufficient to yield ground-water samples that are:
(i) Representative of background ground-water quality in the
uppermost aquifer near the facility; and
(ii) Not affected by the facility . . ."
the number, locations, and depths of downgradient monitoring wells must
ensure that they "immediately detect any statistically significant amounts of
hazardous waste or hazardous waste constituents that migrate from the
waste management area to the uppermost aquifer." (emphasis added)
an assessment monitoring plan must be capable of determining:
"(i) Whether hazardous waste of hazardous waste constituents have
entered the ground water;
(ii) The rate and the extent of migration of hazardous waste or
hazardous waste constituents in the ground water. . ."
the Part B applicant must submit, among other things, an "identification of
the uppermost aquifer and aquifers hvdraulicallv interconnected beneath
the facility property, including ground-water flow direction and rate, and
the basis for such identification (i.e., the information obtained from
hydrogeologic investigations of the facility area)." (emphasis added)
the Part B applicant must include in the submittal a "description of any
plume of contamination that has entered the ground water from a
regulated unit at the time that the application was submitted that:
(i) delineates the extent of the plume . . .,
(ii) identifies the concentration of each Appendix VIII.. .
constituent. . . throughout the plume . . ." (emphasis added)
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FIGURE 4.3
RELATIONSHIP OF TECHNICAL INADEQUACIES TO
GROUND-WATER PERFORMANCE STANDARDS
Examples of Basic Elements
Required by Performance
Standards
Examples of Technical
Inadequacies that may
Constitute Violations
Regulatory
Citations
1. Uppermost Aquifer must be
correctly identified
2. Ground-water flow directions
and rates must be properly
determined
failure to consider aquifers hydraulically
interconnected to the uppermost aquifer
incorrect identification of certain formations
as confining layers or aquitards
failure to use test drilling and/or soil borings
to characterize sub-surface hydrogeology
failure to use piezometers of wells to
determine ground-water flow rates and
directions (or failure to use a sufficient
number of them)
failure to consider tempera! viations in water
levels when establishing flow directions (e.g.,
seasonal variations, short-term fluctuations
due to pumping)
failure to assess significance of vertical
gradients when evaluating flow rates and
directions
failure to use standard/consistent
benchmarks when establishing water level
elevations
failure of the 0/0 to consider the effect of
local withdrawal wells on ground-water flow
direction
failure of the 0/0 to obtain sufficient water
level measurements
§265.90(a)(1)
§265.91 (a)(1)
§270.14(c)(2)
§265.90(3)
§265.91(a)(1)
§270.14(c)(2)
§265.90(3)
§265.91(a)(1)
§270.14(c)(2)
§265.90(3)
§265.91(3)(1)
§270.14(C)(2)
§290.90(3)
§295.91(a)(1)
§270.14(c)(2)
§265.90(3)
§265.91(3)(1)
§270.14(c)(2)
§265.90(3)
§265.91(3)(1)
§270.14(c)(2)
§265.90(3)
§265.91(a)(1)
§265.90(3)
§265.91 (3)(1)
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4-9
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Figure 4.3(continued)
Examples of Basic Elements
Required by Performance
Standards
Examples of Technical
Inadequacies that may
Constitute Violations
Regulatory
Citations
3. Background wells must be
located so as to yield samples that
are not affected by the facility
failure of the 0/0 to consider the effect of §265.90(a)
local withdrawal wells on ground-water flow §265.91(a)(l)
direction
failure of the 0/0 to obtain sufficient water §265.90(a)
level measurements §265.91(a)(1)
failure of the 0/0 to consider flow path of §265.90(a)
dense immistibles in establishing upgradient §265.91(a)(1)
well locations
failure of the 0/0 to consider seasonal §265.90(a)
fluctuations in ground-water flow direction §265.91 (a)(1)
failure to install wells hydraulically upgradient, §265.90(a)
except in cases where upgradient water §265.91(a)(1)
quality is affected by the facility (e.g.,
migration of dense immistibles in the
upgradient direction, mounding of water
beneath the facility) .
failure of the 0/0 to adequately characterize §265.90(a)
subsurface hydrogeology §265.91 (a)(1)
wells intersect only ground water that flows §265.90(a)
aground facility §265.91 (a)(1)
4. Background wells must be
constructed so as to yield samples
that are representative of in-situ
ground-water quality
wells constructed of materials that may
release or sorb constituents of concern
wells improperly sealed-contamination of
sample is a concern
nested or multiple screen wells are used and
it cannot be demonstrated that there has
been no movement of ground water between
strata
improper drilling methods were used, possibly
contaminating the formation
well intake packed with materials that may
contaminate sample
§255.90(3)
§265.91(8X1)
§265.90(3)
§265.91(a)(1)
§265.91(0)
§265.90(a)
§265.91(a)(1)
§265.91(a)(2)
§265.90(3)
§265.91(a)(1)
§265.90(3)
§265.91(8X1)
§265.91(c)
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4-10
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Figure 4.3(fontinued)
Examples of Basic-Elements
Required by Performance
Standards
Examples of Technical
Inadequacies that may
Constitute Violations
Regulatory
Citations
Background wells must be
constructed so as to yield samples
that are representative of in-situ
ground-water quality, (continued)
well screens used are of an inappropriate §265.90(a)
length §265.91(a)(1)
§265.91(a)(2)
wells developed using water other than §265.90(a)
formation water §265.91 (a)
improper well development yielding samples §265.90(a)
with suspended sediments that may bias §265.91 (a)
chemical analysis
use of drilling muds or nonformatJon water §265.90(a)
during well construction that can bias results §265.91 (a)
of samples collected from wells
5. Downgradient monitoring wells
must be located so as to ensure the
immediate detection of any
contamination migrating from the
facility
6. Downgradient monitoring wells
must be constructed so as to yield
samples that are representative of
in-situ ground-water quality
wells not placed immediately adjacent to §265.90(a)
waste management area §265.91 (a)(2)
failure of 0/0 to consider potential pathways §265.90(a)
for dense immisdbles §265.91 (a)(2)
inadequate vertical distribution of wells in §265.90(a)
thick or heavily stratified aquifer §265.91 (a)(2)
inadequate horizontal distribution of wells in §265.90(a)
aquifers of varying hydraulic conductivity §265.91 (a)(2)
likely pathways of contamination (e.g., buried §265.90(a)
stream channels, fractures, areas of high §265.91(a)(2)
permeability) are not intersected by wells
well network covers uppermost but not §265.90(a)
interconnected aquifers ' §265.91(a)(2)
See #4.
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4-11
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(Figure 4.3 continued)
Examples of Basic Elements
Required by Performance
Regulatory Standards
Citations
Examples of Technical
Inadequacies that may
Constitute Violations
7. Samples from
background and
downgradient wells must
be properly collected
and analyzed
failure to evacuate stagnant water
from the well before sampling
failure to sample wells within a
reasonable amount of time after well
evaluation
improper decisions regarding
filtering or non-filtering of samples
prior to analysis (e.g., use of
filtration on samples to be analyzed
for volatile organics)
use of an inappropriate sampling
device
use of improper sample preservation
techniques
samples collected with a device that
is constructed of materials that
interfere with sample integrity
samples collected with a nondedicated
sampling device that is not cleaned
between sampling events
improper use of a sampling device
such that sample quality is affected
(e.g., degassing of sample caused by
agitation of bailer)
improper handling of samples (e.g.,
failure to eliminate headspace from
containers of samples to be analyzed
for volatiles)
§265.90(a)
§265.92(a)
§265.93(d)(4)
§270.14(0(4)
§265.90(a)
§265.92(a)
§265.93(d)(4)
§270.14(0(4)
§265.90(8)
§265.92(a)
§265.93(d)(4)
§270.14(c)(4)
§265.90(8)
§265.92(8)
§265.93(d)(4)
§270.H(c)(4)
§265.90(a)
§265.92(8)
§265.93(d)(4)
§270.14(0(4)
§265.90(8)
§265.92(a)
§265.93(d)(4)
§270.14(0(4)
§265.90(a)
§265.92(a)
§265.93(d)(4)
§270.14(0(4)
§265.90(a)
§265.92(a)
§265.93(d)(4)
§270.14(0(4)
§265.90(8)
§265.92(8)
§265.93(d)(4)
§270.14(c)(4)
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(Figure 4.3 continued)
Examples of Basic Elements
Required by Performance
Regulatory Standards
Examples of Technical
Inadequacies that may
Constitute Violations
Citations
8. In Part 265 assessment
monitoring the O/O must
sample for the correct
substances
9. In defining the Appendix
VIII makeup of a plume the
O/O must sample for the
correct substances
10. In Part 265 assessment
monitoring and in defining
the Appendix VIII makeup of
a plume the O/O must use
appropriate sampling
methodologies
failure of the O/O's list of sampling
parameters to include certain wastes
that are listed In §261.24 or §261.33,
unless adequate justification is
provided
failure of the o/o's list of sampling
parameters to Include Appendix VII
constituents of all wastes listed
under §§261.31 and 261.32, unless
adequate justification is provided
• failure of the O/O's list of sampling
parameters to include all Appendix
VIII constituents, unless adequate
justification is provided
• failure of sampling effort to identify
areas outside the plume
• number of wells was insufficient to
determine vertical and horizontal
gradients in contaminant
concentrations
• total reliance on indirect methods to
characterize plume (e.g., electrical
resistivity, borehole geophysics)
§265.93(d)(4)
§265.93(d)(4)
§270.14(c)(4)
§265.93(d)(4)
§270.14(c)(4)
§265.93(d)(4)
§270.14(C)(4)
§265.93(d)(4)
§270.14(c)(4)
§270.14(C)(4)
11. Part B applicants who
have either detected
contamination of failed to
implement an adequate Part
265 GWM program must
determine with confidence
whether a plume exists and
must characterize any plume
• failure of O/O to implement a
monitoring program that Is capable
of detecting the existence of any
plume that might emanate from the
facility
• failure of O/O to sample both
upgradient and downgradient wells
for all Appendix VIII constituents
See also items #1 and #2.
§270.14(c)(4)
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Figure 4.3^ontinued)
Examples of Basic Elements
Required by Performance
Standards
Examples of Technical
Inadequacies that may
Constitute Violations
Regulatory
Citations
Samples from background and
downgradient wells must be
properly collected and analyzed
(continued)
failure of the sampling plan to establish
procedures for sampling immisdbles (i.e.,
"floaters" 3nd "sinkers")
failure to follow appropriate QA/QC
procedures
failure to ensure sample integrity through the
use of proper chain-of-custody procedures
failure to demonstrate unsuitability of
methods used for sample analysis (other than
those specified in SW-846)
failure to perform analysis in the field on
unstable parameters or constituents (e.g., pH,
Eh, specific conductance, alkalinity, dissolved
oxygen)
use of sample containers that may interfere
with sample quality (e.g., synthetic containers
used with volatile samples)
failure to make proper use of sample blanks
§265.90(a)
§265.92(a)
§265.93(d)(4)
§270.14(C)(4)
§265.90(3)
§265.92(3)
§265.93(d)(4)
§270.14(c)(4)
§265.90(3)
§265.92(3)
§265.93(d)(4)
§270.14(c)(4)
§265.90(3)
§265.92(a)
§265.93(d)(4)
§270.14(c)(4)
§265.90(3)
§265:92(3)
§265.93(d)(4)
§270.14(c)(4)
•4
§265.90(3)
§265.92(3)
§265.93(d)(4)
§270.14(c)(4)
§265.90(3)
§265.92(3)
§265.93(d)(4)
§270.14(c)(4)
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OSWER Directive # 9931.1
The technical inadequacies in Figure 4.3 are not necessarily violations
in all cases. They are violations only when they result in a failure of the
facility to meet one or more of the performance standards. Further, the list
of technical inadequacies is not meant to be exhaustive. To a certain degree,
the decision as to whether a facility's monitoring program is adequate must be
made on a case-by-case basis.
S3013 orders
Section 3013 orders may be issued to a facility only when the
Administrator determines that the presence or release of hazardous waste at
the facility may present a substantial hazard to human health or the
environment. The facility need not be violating RCRA regulations to qualify
for action under §3013.
Actual physical evidence of contamination is not necessary to support a
§3013 order. In the case of a facility that has not conducted any ground-
water monitoring activities, the potential for release of hazardous waste, the
nature of the site's underlying hydrogeology, and the proximity of an aquifer
or populated area will usually be sufficient, with expert opinion, to support
a §3013 order. In some cases, the Region may wish to use §3007 authority to
sample one or more wells at a facility in order to provide direct evidence of
a release. Given that direct evidence is often unnecessary to establish the
applicability of §3013, the Region should probably avoid direct sampling
unless it is confident that existing wells will intersect the suspected plume.
Guidance issued September 26, 1984 provides further discussion of the grounds
for issuance of §3013 orders. (See memo from Courtney Price and Lee Thomas
entitled, "issuance of Administrative Orders Under Section 3013 of the
Resource Conservation and Recovery Act").
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OSWER Directive # 9931.1
S3008(h) Orders
Section 3008(h) of RCRA provides that the Administrator may issue an
order or file a civil suit requiring corrective action or other appropriate
response measures whenever (s)he determines that there is or has been a
release of hazardous waste into the environment. Section 3008(h) actions are
not limited to violations of RCRA.
As described in the September 1985 draft guidance on the scope and use
of §3008(h), the Agency is interpreting the term "release" to include any
spilling, leaking, pumping, pouring, emitting, erupting, discharging,
injecting escaping, leaching, dumping, or disposing into the environment. To
show that a release has occurred, the Administrator does not necessarily need
sampling data. Such evidence as a broken dike at a surface impoundment should
also support a determination that a release has occurred. In some cases,
information on the contents of a land disposal unit, along with information on
the site hydrogeology and the design and operating characteristics of the
facility may be enough for an expert to conclude that a release has occurred.
Section 3008(h) orders (and civil suits) may be used to address releases
not only to the ground water, but to other media as well. The draft §3008(h)
guidance states that the authority covers releases of hazardous wastes into
surface water, air, the land surface, and the sub-surface strata. The term
"hazardous waste" is not limited to those wastes listed or identified in 40
CFR Part 261. For §3008(h) purposes, the term hazardous waste also includes
the hazardous constituents identified in Appendix VIII of Part 261.
4.1.3 Formal Administrative Proceedings
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OSWER Directive # 9931.1
Orders issued and penalties assessed under §3008(a) are subject to
formal administrative proceedings. Section 3008(a) proceedings are governed
by 40 CFR Part 22. (See Appendix B for a diagram of the process). The Agency
has not yet established the proceedings to be followed when issuing §3008(h)
orders.
Part 22, which governs the issuance of §3008(a) orders, sets out a
process that affords a respondent the opportunity to request a hearing on the
violation, the penalty, and the remedy proposed by the Agency. Following any
such hearing, the Administrative Law Judge will issue an Initial Decision that
includes a proposed Final Order and may include a proposed penalty. At that
point the respondent has 20 days in which to appeal the Initial Decision to
the Administrator. If an appeal is not made within this time period the order
becomes final and non-appealable 45 days after issuance of the Initial
decision.
Section 3013 orders are not subject to any formal administrative
proceedings.
4.2 Selection Among Order Authorities
There are a number of factions that should be considered when deciding
which order authority(ies) to invoke. The enforcement staff should consider
first which order authorities are applicable to the actions, inactions, or
conditions involved. Next, the Region should consider which of the applicable
authorities provide a legal basis for requiring the remedy that the Region is
seeking, including the assessment of penalties. Figure 4.1 may be consulted
for a general listing of the activities that can be sought under each
authority.
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OSWER Directive # 9931.1
In most cases, there will be several options that meet the tests of
applicability and coverage of the desired remedy. The enforcement options can
be further narrowed by considering: 1) the strength of the evidence in
support of each type of order; 2) the elements that must be established and
whether they refer to regulations or must be established de novo; 3) the
amount of time that is likely to pass before compliance is achieved; and
4) any complications that might arise from using certain combinations of
authorities.
When estimating the amount of time that may pass before compliance with
a §3008(a) order is achieved, the Regions should assess the probability of the
facility appealing the order. This is particularly important where action
needs to be taken quickly in order to halt or avoid a hazard or endangerment.
If the facility is likely to challenge a §3008(a) order in the District Court,
the Agency might elect to file a civil suit seeking preliminary injunction
relief or to issue a §3013 order (if the §3013 test could be met).
Alternatively, the Agency could take action itself to mitigate an immediate
threat to public health or the environment under CERCLA §104.
when contemplating using two authorities to compel different aspects of
the desired remedy, enforcement officials should keep in mind the different
procedures that accompany each order. For instance, there may be cases in
which a Regina would consider issuing simultaneous §3008(a) and §3013 orders:
a §3008(a) order to compel proper well placement and assess penalties and a
§3013 order to compel sampling for constituents not listed in Parts 260-270.
While simultaneous issuance of these orders is acceptable, the Regions should
be aware that one order is subject to administrative hearings and the order is
not; therefore, appeal of the §3008(a) order may delay the full implementation
of the remedy.
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In general, a $3008(a) order enforcing Parts 265 and 270 and assessing
penalties will be the most practical enforcement option. Such an order can be
used to attain nearly any desired improvement to a ground-water monitoring
program. It can also be used, as noted in Section 1.2.1, to require a
facility to sample the ground water for constituents listed in Appendix VIII
of Part 261.
Section 3013 and $3008(h) orders also have several common features that
make them particularly attractive in certain circumstances. Both order
authorities may be used to address contamination of media other than ground
water. For example, either order could be used to address facilities with
both ground-water and air problems. Moreover, unlike $3008(a) orders,
$3008(h) and $3013 orders are not bound by the ground-water monitoring regimen
specified in the regulations. Therefore, the Agency has more flexibility in
specifying monitoring parameters and sampling frequencies when issuing $3013
and $3088(h) orders.
Each order authority also has unique features that may make it
particularly appropriate for certain situations, section 3013, for example,
grants the Agency the authority to perform investigatory activities and
recover costs later if a respondent is incapable of or refuses to perform the
necessary actions, section 3008(h) does not provide for cost recovery, but
can be used to compel facilities to go beyond the investigation stage and take
corrective action if necessary. In addition, $3008(h) orders can be used to
address past releases from solid waste management units and contamination
extending beyond the facility boundary.
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CHAPTER 5
FASHIONING A REMEDY AND DEVELOPING THE ENFORCEMENT STRATEGY
The first and perhaps most important step in developing an enforcement
action for a facility with ground-water monitoring problems is fashioning an
appropriate remedy. Only after outlining the desired remedy can the Region
design an enforcement strategy that will best achieve the desired results.
This chapter will describe several scenarios involving problem
monitoring programs and, using one common scenario as an example, will
illustrate some of the principles that enforcement officials should consider
when designing technical remedies. Then, using the same violator as an
example, the chapter will design an enforcement strategy to compel the model
remedy.
5.1 Types of Violators
Each ground-water case will, of course, have unique features. It is
possible, however, to group RCRA ground-water violators into several broad
categories that characterize the status of the facility at the time of
enforcement review. Figure 5.1 outlines one possible scheme that divides
facilities into groups based on a combined evaluation of their Part 265 system
and the adequacy of their permit application. This scenario will be used
later in Figure 5.3 to illustrate possible remedies and enforcement strategies
for facilities with different types of ground-water violations.
The assumption in this scheme is that all the facilities listed are in
violation of Part 270 because they did not generate the information necessary
for permitting. In some cases, this deficiency derives from inadequate
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compliance with part 265 (facilities that have inadequate 265 detection
systems, for example, will not have generated the information necessary to
determine whether the facility should be permitted under detection monitoring,
Ocompliance monitoring, or corrective action). In other cases, facilities may
have complied with 265, but not have completed all activities required by the
permit application regulations (e.g., the facility performed some assessment
activities based on Appendix VII, but did not sample for Appendix vili as
required by $270.14(c)(4)) .
FIGURE 5.1
Violator classification Scheme
Scenario
Facility status
1. No statistically significant
change in Part 265 indicator
parameters; Phys ic ally
adequate detection network;
Agency has reason to believe
there is contamination.
2. No statically significant
change in Part 265 indicator
parameters; Inadequate Part
265 detection system.
Statistically significant
change in Part 265 indicator
parameters; inadequate Part
265 detection system;
Inadequate Part 265
assessment.
statistically significant
change in Part 265 indicator
parameters; Adequate Part 265
assessment; inadequate permit
application.
Possible Sources of Inadequacy
Part 265 indicator parameters are
not adequate to detect type of
leachate expected from facility;
site hydrogeology or facility's
engineering design puts facility at
high risk of leaking.
Well placements made based on
insufficient hydrogeologic
assessment; Too fee wells;
Inappropriate sampling device; Wells
not properly developed, etc.
Owner/operator used only indirect
techniques to assess plume.
Owner failed to identify all
Appendix VIII constituents in ground
water; Owner based concentration
limits on insufficient background
sampling; Owner failed to submit a
feasibility plan for corrective
action, etc.
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5.2 Profile of a "Transition-Period" violator
During the transition period between interim status and permitting, the
Agency envisions encountering a considerable number of facilities of the type
described in scenario 2 (Figure 5.1). The Agency's experience to date has
indicated that in certain cases, owner/operators have installed monitoring
networks based on only a limited understanding of the hydrogeology underlying
their site. Monitoring wells have been located based on an evaluation of
local topography and, to the extent possible, evaluation of existing building
foundation borings. A considerable number of owner/operators have not
performed the type of detailed hydrogeologic site assessment the AGency
considers essential for the design of any ground-water monitoring system.
Even fewer have kept the type of well construction and design records the
Agency needs to evaluate the adequacy of the physical well network already in
place.
As a result, EPA expects to encounter owner/operators who consider
themselves in compliance but who can not provide the background information
and documentation minimally necessary to substantiate the adequacy of their
Part 265 detection system. Without such information, the Agency will not be
able to decide whether a facility's detection system is or is not capable of
detecting contamination and hence whether the facility should be permitted
under detection monitoring, compliance monitoring or corrective action. Not
having detected a change in indicator parameters, however, the facility most
likely will have applied for a detection monitoring permit, considering itself
exempt from the assessment requirements of §270.14(c)(4).
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A typical "transition" facility, therefore, could be characterized as follows:
O the facility has failed to adequately characterize the
hydrogeology underlying its site;
O therefore, the facility's well placements are inaccurate;
O the facility has sampled for the Part 265 indicator parameters.
No statistically significant increases have been detected in
existing downgradient wells;
O the facility's Part B is due. The facility has submitted a
summary of its interim status monitoring data and has proposed an
expanded list of indicator parameters for Part 264 monitoring.
The permit application includes procedures for establishing
background values for these parameters, but does not include
actual background values based on pre-permit sampling.
This chapter will use the above scenario to illustrate some of the
principles enforcement officials should consider when designing remedies for
facilities during the interim status to permitting transition period. The
chapter uses Scenario 2 as its point of departure because a facility that has
not detected contamination under interim status presents the greatest
challenge to enforcement officials. Moreover, the remedies appropriate for
the other scenarios presented in Figure 5.1 are but a variation of the remedy
outline in the following section for the facility described in Scenario 2.
Table 5.5 at the end of the chapter summarizes the variations on the
remedy appropriate for each of the other listed scenarios.
5.3 Outline of the Remedy
When faced with a facility that has a technically inadequate detection
monitoring system, enforcement and permitting officials must consider first
what makes sense for a facility to do in light of the facility's past and
future monitoring obligations. By this point in the program, an interim
status facility should have installed a fully competent detection monitoring
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system, determined with confidence whether there was a statistically
significant indication of ground-water contamination, and fully characterized
any plume for both Appendix VII and Vill constituents (if contamination were
detected). If a facility has not successfully completed even the first step -
the installation of a competent detection system - it cannot be allowed to
begin the entire sequence anew. Proceeding from the beginning would mean
upgrading the detection system and sampling for one year to establish
background before even the first determination of contamination is made.
As the time line in Figure 5.2 points out, proceeding through this
entire sequence could take up to two and on-half years. This approach would
lead to unacceptable delays in the permitting process and would penalize those
facilities who had complied with the program all along. In effect, "starting
over" would merely allow facilities that had avoided the costs of complying in
the past, to delay the costs of full compliance for an additional period of
time.
Instead, such facilities should be required to make an accelerated
determination of whether or not contamination has occurred. This
determination can then be used to decide what additional actions, if any, the
applicant must perform to meet his/her permit application requirements.
Before a determination of leakage can be made, the facility must install
a monitoring network capable of detecting contamination. In general, this
will require such facilities to perform additional site characterization and
then, based on the results, expand or replace their existing monitoring
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Figure 5.2 GROUND-WATER MONITORING SEQUENCE AS ORIGINALLY ENVISIONED
PART 265 DETECTION MONITORING
PART 265 ASSESSMENT
PART 270
TRIGGER
PART B CALL-IN
33
6 months
.generally at least 4-6 months
POINT A
Certain facilities have not
adequately
POINT B
Facilities should be HERE
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OSWER Directive # 9931.1
network. Once a competent detection network is in place, the facility is in a
position to determine whether or not contamination has occurred.
The Agency suggests that the determination of whether contamination has
occurred be made base don a comparison of upgradient and downgradient values
obtained for an expanded list of indicator parameters. The indicator
parameters should be selected base don the specifics of the site and should
include constituents that would be expected to be at the leading edge of any
plume of contamination (see Section 5.4.2). The comparison should be based on
the mean of pooled data obtained through accelerated sampling over a short
period of time. The plan for this determination should be designed to
conclusively confirm or refute contamination in the shortest period of time
possible.
If contamination has occurred, the facility owner must proceed to
characterize the plume and, based on the results, apply for either an
operating or post-closure permit that includes compliance monitoring and/or
corrective action. If contamination has not occurred (i.e., the results of
interim status monitoring were correct even though the detection system was
not fully competent), then the facility would apply for a permit as a
detection monitoring facility.
Thus the preferred technical response for a facility that has not
triggered under detection monitoring but has an inadequate Part 265 detection
system is as follows:
1) Conduct a detailed assessment of the site's
hydrogeology (fill in gaps in the facility's current
understanding of the site's subsurface).
2) Install a monitoring network (or modify/expand an
existing system) to meet the objectives of Parts
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265/264 detection monitoring.
3) Sample for an expanded list of indicator parameters.
4) Determine whether contamination has occurred based on
a comparison of upgradient and downgradient well
samples obtained over a short period of time
(accelerated sampling).
5) If contamination is confirmed, begin characterizing
the plume based on monitoring of Appendix VIII
constituents.
6) Sample to establish background for all Appendix VIII
constituents detected in ground water.
7) If downgradient Appendix VIII values are significantly
greater than background values, have facility develop
corrective action plan and apply for corrective action
permit.10
If downgradient Appendix VIII values are lower than
background have facility submit a corrective action
feasibility study11 and apply for a compliance
monitoring permit.
The schedule of achieving the above remedy will of course depend on the
particulars of the site involved, especially the complexity of the site's
hydrogeology. While it is impossible to predict how long it will take (or
should take) to accomplish each step, the sequence of monitoring events in
this remedy should be significantly shorter than the sequence laid out in the
regulations.
10 Note that if the permit is not likely to be issued quickly, the Agency
may wish to initiate corrective action while the facility is still in interim
status. Several authorities are available to compel such corrective action,
including $3008(h), §7003 and Section 106 of CERCLA. Further, in some
instances, the Agency may choose to conduct a response action under the
authority of CERCLA S104.
11 Section 270.14(c)(7) requires applicants to submit a corrective action
feasibility study when applying for a compliance monitoring permit. The study
must include sufficient information to predict what type of corrective action
(e.g., trench recovery, pumping and treatment) would be appropriate if
remedial work proved necessary at that site. It is not meant to be a fully
developed plan for corrective action; such a plan must be developed pursuant
to §265.99(i)(2) if the facility ever exceeds its ground-water protection
standard.
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As illustrated in Figure 5.3, the remedy recommended in this document in
effect eliminates the collection of a year's worth of background data and
condenses the monitoring required by Part 265 assessment [primarily Appendix
VII] and §270.14(c)(4) [Appendix VIII] into one plume characterization phase.
Now confirmation (or denial) of leakage can be accomplished through
accelerated sampling over a period of weeks or months rather than taking over
a year.
5.4 Discussion of the Remedy
The basic elements of the remedy are the design and installation of a
competent detection monitoring well network; determination of whether or not
leakage has occurred based on sampling for an expanded list of parameters; and
the fulfillment of all applicable Part 270 informational requirements. The
following section will describe briefly certain factors enforcement officials
should keep in mind when developing each aspect of the remedy. Late sections
will explore the order and regulatory authorities available to compel each of
the outlined activities.
5.4.1 Design and Installation of a Competent Monitoring Network
The facility owner should be required to upgrade his/her existing
network to meet the detection standards of Part 265. The reader should note
that if an owner/operator's hydrogeologic data submitted pursuant to
§270.14(c)(2) is inadequate, it is likely that the facility's detection
monitoring well network is inadequate as well. The reader should also note
that since the design and construction standards for a Part 265 system are
essentially the same as those required by Part 264 (see Chapter 3), the
network installed for the determination of leakage proposed in the model
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Figure 5.3 NEW GROUND-WATER COMPLIANCE STRATEGY BASED ON CONDENSED MONITORING SEQUENCE
FACILITIES THAT
HAVE NOT FORMALLY
TRIGGERED
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OSWER Directive # 9931.1
remedy should serve equally well as the facility's Part 264 detection
monitoring system if no plume is found.
5.4.2 Confirmation of Leakage Based on Expanded Sampling
Central to the determination of leakage proposed in the model remedy is
the development of a list of meaningful indicator parameters, when selecting
parameters, enforcement officials should not limit themselves to the four
indicators listed in S265.90.12 These parameters were selected as the best
indicators available to detect a broad spectrum of possible leachates.
Because the interim status regulations were meant to be self-implementing,
Part 265 detection monitoring could not rely on waste-specific indicators
selected for each facility. As a result these parameters are limited in their
ability to indicate contamination soon after leakage.
The Part 265 indicator parameters are limited in three ways. First, the
Part 265 indicator parameters are subject to sources of natural variation that
can mask the presence of low levels of contamination. There are many natural
sources of variation of pH, for example, that could obscure changes in this
parameter caused by leachate. Changes in levels of a specific parameter such
as benzene, however, are not generally subject to such background "noise."
Second, with the exception of TOX (which can be detected at below 20 ppb), the
lower detection limit of the other parameters is not sufficiently sensitive to
register some changes in water chemistry that may represent leakage. Finally,
because the part 265 indicator parameter are surrogate measures, increases in
a particular chemical constituent do not necessarily cause an equivalent
change in an indicator parameters. A 5 mg/1 change in lead, for example,
12 See Section 5.5.2 for an explanation of the authorities available to
compel sampling for a broader list of parameters.
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would only initiate a very small change in specific conductance (if any). The
same increase in concentration would initiate a significant change, however,
if the facility were sampling for lead itself.
Therefore, enforcement officials should select indicator parameters that
are base don the chemical composition of the facility's waste. The
enforcement official should have the facility identify both the hazardous and
non-hazardous constituents of the facility's waste, including any constituents
likely to form as a result of chemical reaction occurring in the facility or
in the leachate as it migrates through the subsurface. Then the
owner/operator should identify those constituents that can be considered the
most mobile and persistent in the unsaturate and saturated zones beneath the
facility. The enforcement official should then select those parameters that
individually or as a group (e.g. TOX) can provide the most reliable indication
of leakage. Special attention should be given to whether the parameter is
easily detected in water and to the variability of the parameter in background
water. If background concentrations of a potential indicator parameter are
sufficiently high or exhibit a high degree of variability, the arrival of low
or moderate concentrations of leachate may be masked.
The list of parameters finally selected should be representative of
constituents at least as mobile as the most mobile hazardous constituent
reasonably expected to be derived from the facility's waste. Concentrating on
the most mobile constituents will ensure that the arrival of leachate la
detected at the earliest possible time.
In addition to indicator parameter, enforcement officials should
consider having the facility sample for additional parameters that
characterize the general quality of water at the site (e.g., cl", Fe, Mn, Na*,
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SO4, Ca+, Mg+, K+, NO"3, PO4", silicate, ammonium, alkalinity or acidity).
Baseline data on the inorganic chemical composition of ground water can
provide an important basis for comparison and planning should the program
enter the assessment phase. Information on the major anions and cations that
make up the bulk of dissolved solids in water, for example, can be used to
determine reactivity and solubility of hazardous constituents and therefore
predict their mobility under actual site conditions.
5.4.3 Fulfillment of Applicable Part 270 Requirements
when designing the remedy, enforcement officials should include elements
that address the facility's information obligations pursuant to Part 270. If
contamination is confirmed, the facility must generate the remainder of the
information required by §270.14(c)(4), namely the extent of migration of any
plume and the concentration of all Part 261 Appendix VIII constituents present
in the plume.
Enforcement officials should also ensure that the remedy includes the
collection of background data on all Appendix VIII constituents detected in
ground water. For many constituents, these data will be necessary to
establish concentration limits for incorporation into the facility's ground-
water protection standard. As described in section 3.2.1, the permit writer
will have to set concentration limits based on the mean of pooled data
available at the time of permitting (unless there is a high temporal
correlation between contaminant concentration limits may be established
through sampling at the compliance point). Therefore, it is in the best
interests of both the facility and the Agency to have sufficient data
available at the time of permitting to accurately characterize the utility of
the background water at the site.
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To guarantee sufficient data, enforcement officials should consider
incorporating in the facility's prescribed remedy an accelerated program of
background sampling for Appendix VIII constituents. The frequency of sampling
should be dictated by the needs of the statistical test proposed by the
facility for use in compliance monitoring. The sampling schedule should also
consider the need for establishing seasonal and spatial variation in
contaminant levels if such variation is expected at the site. Sections 6.3
and 7.3.2 of the Permit Writer's Guidance Manual provide further guidance on
these points.
In addition, the order should require the submittal of the various plans
and feasibility studies necessary to establish a compliance monitoring program
or a program for corrective action pursuant to SS270.14(c)(7) or (8) (see
Section 2.3.2). By placing these permit application requirements on an
enforceable compliance schedule, enforcement officials can help ensure that
the requirements will be fulfilled in a timely manner.
5.5 Application of Enforcement Authorities to the Remedy
once the enforcement staff and permit writer devise an appropriate
remedy, the enforcement staff must determine the order and regulatory
authorities best suited to compel the desired actions. As Section 4.2 on
selecting order authorities points out, there are a variety of factors
enforcement officials must consider when developing an enforcement strategy.
When deciding between order authorities, officials must first establish
the applicability of the order to the situation at hand(i.e., does the
situation meet the conditions necessary for the issuance of a particular
order). Next, the official must consider whether the order can compel all
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aspects of the desired remedy. Where possible, it is advantageous to secure
the entire remedy through a single authority in order to save resources and
avoid the possibility of different appeal procedures. Finally, enforcement
officials must factor in other relevant concerns such as the facility's
compliance history and whether or not it is important in the instant case to
assess a penalty. In certain circumstances, features such as the ability to
assess a penalty may become the deciding factor when choosing between order
authorities.
This section will apply the above principles to the model remedy
developed in this chapter. It will outline a preferred enforcement strategy
for the model remedy and will note where changes in the remedy could suggest
needed changes in the proposed strategy. Table 5.5 at the end of the chapter,
summarizes various enforcement strategies for facilities with different
ground-water violations and different technical remedies.
5.5.1 selection of the Order Authority
Assume that the only information known about the Scenario 2 facility is
that presented in Figure 5.1; namely the facility is in violation of the Part
265 ground-water regulations for the following reasons:
1. the facility located its wells based on a poor understanding of
the site's hydrogeology;
2. there are too few wells installed; and
3. the owner cannot demonstrate that existing wells were properly
constructed.
In addition, the facility is in violation of $270.14(c)(4) because the owner
made no attempt to look for and assess any plume beneath the facility before
the facility's part B due date passed.
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Based on the above information alone, the most appropriate order
authority for compelling the model remedy of this chapter would be a $3008(a)
order enforcing Parts 265 and 270. A §3008(a) order is the authority of
choice for three reasons. First, the condition for issuing a S3008(a) order
has already been met - the facility is clearly in violation of the
regulations. To use either of the other authorities, the Agency may have to
expend additional resources to collect evidence that there may be a
substantial hazard to public health or the environment [$3013] or a release of
hazardous waste or constituents into the environment [$3008(h)].
Second, as the following section will explain, the entire remedy can be
compelled using a S3008(a) order citing relevant sections of Parts 265 and
270. The remedy as presently conceived focuses exclusively on evaluating the
impact of the facility on ground water; hence, or order that can address other
media, such as 301 or 3008(h) order, is not needed. Further, in this
particular case, there is no reason to suspect that the threat posed by
potential ground-water contamination is so compelling as to require corrective
action prior to permitting. Therefore, it is not essential to use an order.
that can accommodate clean up of ground water during interim status. Of
course, if additional evidence collected during plume characterization
indicated that clean up should be pursued immediately, a $3008(h) order could
be issued subsequent to the initial $3008(a) action.
Finally, a $3008(a) order has the added advantage that it can be used to
assess penalties. Given that the facility has been out of compliance for the
entire history of the program, the Agency should exercise its authority to
assess penalties for past and continuing violations including the recovery of
the facility's economic benefit of non-compliance.
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Of course, if the starting scenario were different, the considerations
guiding the selection of an order authority could change significantly. For
example, if there were evidence of off-site contamination (e.g., a fish kill
in a nearby stream) and the facility were known to delay resolution of
proceedings by exercising every opportunity for appeal, enforcement officials
may decide to postpone the assessment of penalties and immediately issue an
order under §3013, $7003 or CERCLA $106 to avoid the time delay afforded by
the administrative process, in another case, if a facility were out of
compliance with the ground-water regulations and had significant soil
contamination, the Region could use a $3008(h) order to achieve both
compliance with the regulations and clean-up of contaminated soil. The proper
way to balance the advantages and disadvantages of each order authority can
only be determined in the context of a particular situation.
5.5.2 Securing the Model Remedy Through a S3008(a) Order
As outlined in Figure 5.4, the model remedy derives directly from the
regulations. Sections from Part 265 and 270 may be cited to compel additional
hydrogeologic investigation and the installation of an adequate well network.
Section 270.14(c)(4) may be cited to force sampling for an expanded list of
parameters and to justify the comparison of upgradient and downgradient wells
based on accelerated sampling. Finally, relevant sections of the Part 270
regulations may be cited to require the collection of background data on
Appendix vin constituents and the submission of other plans and data
necessary for permitting.
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Figure 5.4
MODEL REMEDY WITH REGULATORY CITATIONS
MODEL REMEDY REGULATORY CITES
1. Fill in gaps in the current understanding §265.90(a)
of the site's hydrogeology §265.91
S270.14(c)(2)
2. Install a monitoring network (or expand an §265.91
existing system) to meet the objectives of a
Part 265/264 detection system
3. Sample for an expanded list of indicator parameters:
Part 265 indicator parameters (TOX, TOC, ph, §265.92(b)(3)
specific conductance)
Part 265 water quality parameters (Cl, Fe, §265.92(b)(2)
Mn, Na, Phenols, Sulfate)
Substances with National Interim Drinking §265.92(b)(1)
Standards (Appendix III, Part 265)
Appendix VIII of Part 261 §270.14(c)(4)
4. Determine whether contamination has occurred §270.14(c)(4)
based on a comparison of data collected from
up- and downgradient wells over a short period
of time
5. If contamination is confirmed, begin assessing §270.14(c)(4)
the plume based on monitoring of Appendix VIII
constituents
6. Sample to establish background for all Appendix §270.14(c)(7)(iv)
VIII constituents detected in ground water
7. Submit data and plans required for either §270.14(c)(7) or
compliance monitoring or corrective action (8)
The regulatory cities in this strategy are relatively straight forward;
however, the role of S270.14(c)(4) deserves attention. As section 2.3.1
explains, the Agency may require a facility to look for and assess a plume at
any facility where the owner/operator's program of interim status monitoring
has detected a plume or has filed to establish definitively whether or not a
plume exists.
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Under $270.14(c)(4), the facility ia obligated to assess the extent of any
plume and sample for the full complement of Appendix VIII constituents.
Therefore, it is within the Agency's authority to require the facility to
begin assessment and full Appendix VIII sampling immediately. The model
technical remedy, however, limits the scope of sampling to a more manageable
list of indicator parameters until the presence of a plume is confirmed or
refuted. In effect, the model technical remedy refrains from immediately
exercising the full power of S270.14(c)(4) in order to avoid wasted effort if
indeed the facility has not leaked.
5.6 Variations on the Model Scenario
This chapter has used the facility described in scenario 2 to illustrate
some of the principles enforcement officials should consider when designing
technical remedies and developing enforcement strategies. As the scenario
changes, the remedy appropriate for the situation and the enforcement tools
available to secure that remedy change as well. Figure 5.5 (at the end of the
chapter) illustrates how the technical remedy and enforcement response vary
based on the status of the facility at the time of enforcement review.
It is important to note that all proposed remedies include correcting any
deficiencies in the existing detection network even if the facility has
already detected contamination and begun to characterize the plume. As
described in the Chapter 2, a should well network at the limit of the waste
management area is critical to every phase of ground-water monitoring.
Therefore, it makes sense to correct any deficiencies in the interim status
detection system, because these wells will be used throughout the life of the
facility. Moreover, a system may have detected a plume in one area and still
be incapable of detecting a plume at some other point. In such cases, the
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system should be upgraded so that it will be capable of detecting future
plumes of contamination.
It is further important to note that where a facility has managed to
detect a statistically significant change in indicator parameters even though
its detection system is inadequate (see Scenario 2 in Figure 5.5), enforcement
officials should require the facility to being characterizing the plume
downgradient from the triggering well and at the same time perform additional
hydrogeologic evaluation and upgrade the detection network.
Finally, the technical remedies outlined in this chapter are appropriate
not only for operating units but also for most units that are closed or are
planning to close. Section 270.l(c) states that units closing after
January 26, 1983 must have permits during the post-closure period.13 For
units that accepted hazardous waste after July 26, 1982, the post-closure
permit would include the ground-water monitoring program set out in Part 264
and the permit application would include the ground-water monitoring data
required under S270.14(c). Thus, once a closing unit's Part B application is
due, enforcement officials can rely on the same range of enforcement options
that are available to address operating units.
There are three categories of units that would not currently be subject to
the Part 265/270 program outlined in this chapter. First, units that close
13 In order to implement $3005(i) of the Solid Waste Disposal Act, as
mended, the AGency intends to propose amending S270.l(c) to make all units
closing after July 26, 1982 subject to post-closure permits. Section 3005(i)
of the revised Act makes all units receiving wastes after 7/26/82 subject to
Part 264 ground-water monitoring and corrective action requirements. Since a
permit is the means by which the AGency implements the Part 264 standards, the
Agency considers it necessary to review $270.l(c) in order to make all units
subject to Part 264 ground-water monitoring and corrective action also subject
to post closure permitting.
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OSWER Directive # 9931.1
before January 26, 1983 are not required to obtain permits and thus are not
subject to Part 270 requirements [codification rule may roll this date back to
July 26, 1982]. Second, units that ceased receiving hazardous waste by
July 26, 1982 are not subject to the Part 264 ground-water monitoring
provisions and therefore, in applying for the permit, would not need to
included the ground-water data required under S270.14(c)(4). Third, no post-
closure requirements apply, and thus no permit or permit application is
currently required for a surface impoundment or waste pile that closes by
removing all hazardous waste and waste residues from the unit, the underlying
and surrounding soil, and the ground water. The Agency is presently
evaluating whether $3005(i) may require the Agency to make units that clean
closed under Part 265 but received waste after 7/26/82 subject to post-closure
permitting in order to implement Part 264 ground-water monitoring and
corrective action.
In all of the above cases, however, the Part 265 ground-water monitoring
requirements do apply and should be enforced.14 In the case of s surface
impoundment closing through removal, the Agency/State should ensure that the
closure plan provides for monitoring that is adequate to demonstrate the
absence of hazardous waste in the ground water. Surface impoundments
generally cannot qualify for closure by removal if any hazardous waste is
present in the ground water; such impoundments must instead close as land
disposal facilities.
14 The successful execution of closure responsibilities Z(e.g.,
installation of a cap, run-off and run-on control) does not absolve a facility
from its Part 265 ground-water, monitoring responsibilities. Section 265.117
of the regulations states that closed facilities must comply with the ground-
water monitoring and reporting requirements of Subpart F for 30 years after
the date of closure. Therefore to meet its post-closure care requirements, a
closed or closing facility with an inadequate Part 265 monitoring network
would have to upgrade its system and assess any plume of contamination
detected during the post-closure care period.
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FIGURE 5.5 VARIATIONS ON MODEL REMEDY AND ENFORCEMENT RESPONSE
FACILITY STATUS
EXAMPLE SCENARIOS
PROPOSED REMEDY
ADMINISTRATIVE
ENFORCEMENT OPTIONS
No statistically significant
increase in indicator
parameters under Part 265
detection. Adequate
hydrogeologic assessment
and construction of wells.
Site conditions or additional
evidence suggest that
leakage may have occurred.
a)
b)
Unlined lagoon contains a large
volume of lead-containing wastes.
High variability in background
measure of specific conductance
may have masked escape of lead
into ground water. Subsurface is
naturally acidic. Shallowness of
water table and lack of liner suggest
high probability of leakage.
Surface impoundment with synthetic
liner. Wells placed at 80 ft. centers.
Uniform glacial till with permeability
of 10s. Nearby pond downgradient
from facility is contaminated with
TCE. Waste in surface
impoundment is known to contain
TCE. Agency suspects that there is
ribbon plume escaping from leak in
liner.
1. Develop list of meaningful indicator
parameters.
2. Sample upgradient and
downgradient wells for indicators.
3. If there is a statistically significant
difference between up- and
downgradient wells, assess plume
to determine extent of migration and
concentration of all Appendix VIII
constituents (new wells may be
required).
4. Establish background values for all
Appendix VIII constituents found in
plume.
5. Develop compliance monitoring or
corrective action program as
appropriate.
1. Install additional wells in area(s) of
highest probability of leakage taking
into account hydrogeology of site
and facility design (e.g., near liner
seams). Note: computer modeling
may help estimate source of plume.
2. Proceed as in 1(a) above.
§3013 if substantial present or
potential threat to public health or
environment exists; or
§3008(h) if there is evidence of
release of hazardous waste or
constituents into the environment.
1.
2.
§3013 if substantial present or
potential threat to public health or
environment exists; or
§3008(h) if there is evidence of
release of hazardous waste or
constituents into the environment.
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FIGURE 5.5 (continued)
FACILITY STATUS
EXAMPLE SCENARIOS
PROPOSED REMEDY
ADMINISTRATIVE
ENFORCEMENT OPTIONS
3)
I
-------
5.5 (continued)
FACILITY STATUS
EXAMPLE SCENARIOS
PROPOSED REMEDY
ADMINISTRATIVE
ENFORCEMENT OPTIONS
4. Same as in #3, but Part 265
assessment program
properly carried out.
Inadequate permit
application.
(D
o
<5]
fi)
a) Large amounts of K006 waste 1.
disposed at site. Sampling for
relevant Appendix VII constituent,
hexavalent chromium, did not
confirm contamination. Owner/
operator applied for detection 2.
monitoring permit claiming false
trigger. Facility did not sample for
other organic constituents known to
be in K006 waste and listed in 3.
Appendix VIM as required by
§270.14(c)(4).*
Assess plume for all Appendix VIII 1.
constituents (can probably use same
wells used for Part 265 2.
assessment).
Establish background values for all
Appendix VIII constituents found in 3.
plume.
Have owner/operator apply for
compliance monitoring and/or
corrective action permit as
appropriate.
§3008(a) enforcing Part 270;
§3013 if substantial present or
potential threat to public health
or environment exists; or
§3008(h) if there is evidence of
hazardous waste or constituents
into the environment.
*K006 waste (wastewater treatment sludge from the production of chrome oxide green pigments-anhydrous and hydrated) was listed because it contains hexavalent chromium i.e., the only Appendix VII constituent
related to K006 is Cr**. K006 waste, however, contains a host of organic solvents. Therefore the owner/operator could have fulfilled his Part 265 assessment monitoring obligations by monitoring for Cr".
To fulfill his obligations under §270.14(c)(4), however, the owner/operator would have to expand his sampling and analysis program to Include the organics on Appendix VII.
-------
FIGURE 5.5 (continued)
FACILITY STATUS
EXAMPLE SCENARIOS
PROPOSED REMEDY
ADMINISTRATIVE
ENFORCEMENT OPTIONS
o
Q)
5. Inadequate Part 265
detection system. No
statistically significant
increase in parameters.
Owner/operator notifies
Agency that (s)he intends to
close. Closure plan does not
address potential ground-
water problems.
a) Land disposal facility announces
intent to close after submitting a
highly inadequate Part B application
and receiving NOD that details work
to be done before application can be
considered complete.
b) Facility submits closure plan in lieu
of Part B operating or post-closure
permit.
1. Have facility pursue model remedy
that is outlined in Chapter 5.
Closing land disposal facility has
same Part 270 and Part 264 ground-
water monitoring obligations
(pursuant to post-closure permit) as
facility applying for operating permit.
2. Pursue corrective action if
warranted.
1. Call in facility's post-closure permit if
not already due.
2. Where possible, enter into consent
agreement that outlines steps
owner/operator must take to
generate adequate post-closure
permit application.
3. Where agreement is not possible,
issue order enforcing Part 265 that
compels hydrogeologic investigation
and well installation.
4. Once application due date has
passed, amend complaint and have
o/o proceed with aspects of model
remedy that rely on authority of Part
270.
1.
2.
§3008(a) enforcing Parts 265 and
270.
§3008(h) if there is evidence of a
release of hazardous waste or
constituents into the environment.
1.
§3008(a) enforcing Parts 265 and
270.
2. §3008(h) if there is evidence of a
release of hazardous waste or
constituents into the environment.
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OSWER Directive # 9931.1
CHAPTER 6
DEVELOPING ORDERS
The purpose of this chapter is to help enforcement officials ensure that
the ground-water remedy sought by the Agency is in fact executed by the
respondent. The chapter will discuss the importance of specificity in
detailing the desired remedy and various strategies that may be followed in
developing and issuing orders. The chapter will concentrate exclusively on
how to develop the technical content of compliance orders; it will not address
legal issues related to writing orders or issuing complaints. Guidance on
such issues is already available in the Compliance/Enforcement Guidance Manual
dated September, 1984 (See especially Chapter 7, "Administrative Actions:
civil").
6.1 importance of specificity
The Agency's experience to date suggest that certain members of the
regulated community have failed to implement a ground-water system capable of
meeting the requirements of Parts 265 and 270. This is particularly true with
respect to Part 265's broad performance standards and may increase with
respect to Part 270 as Part B applications are filed. As Section 4.1.2 points
out, even though the regulations do not specify in detail how a system should
be designed and operated, the performance language demands a rigorous program
of hydrogeologic investigation, network design, well construction, and
sampling and analysis.
Despite the high standards set by the regulations, certain owner/operators
have ignored this performance language and have installed only four wells
(three downgradient and one upgradient), in settings whose complex
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hydrogeology require a substantially greater number of wells.
In light of the failure of certain facilities to achieve the high
standards set by the regulations, it is essential that the Agency introduce
specificity into the administrative enforcement process. In the course of
each administrative proceeding there must develop between the Agency and the
respondent and express understanding as to what activities will constitute
compliance with the regulations. Administrative orders that are explicit
regarding the Agency's expectations can help ensure that the actions taken by
the owner/operator will be sufficient to bring the facility into compliance.
Specificity regarding what will be considered appropriate or adequate, can
help avoid the wasted time and effort that results when a respondent performs
actions later deemed inadequate. It is clearly in the best interest of both
parties to ensure that the facility's first effort to come into compliance
meets the Agency's requirements.
The Agency can secure this assurance either by reviewing the
owner/operator's plans for coming into compliance before the work is actually
performed or by specifying up front exactly what actions are required of the
respondent.. An order, therefore, can be structured in one of two ways. If
issued prospectively, an order may be structured around the submittal, and
subsequent Agency review, of individual plans outlining the respondent's
proposed actions for implementing each phase (hereafter referred to as a
"phased order"). Alternately, the Agency can issue highly explicit orders
that define technically what the owner/operator must do to come into
compliance.
The next two sections of this document explain the above two types of
order in greater detail. Both orders place the burden of system design on the
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OSWER Directive # 9931.1
respondent, yet provide the Agency with an opportunity to veto any design
before the system is actually implemented. When issuing either type of order,
enforcement officials must make clear that notwithstanding compliance with the
order, the respondent remains responsible for compliance and abatement of any
ground-water contamination. A specific provision should be included in all
orders noting that the respondent may be required to take further actions as
necessary to comply with RCRA or other applicable laws.
6.2 Phased Orders for Ground-Water Monitoring violations
The concept of phased orders is relatively new to the RCRA program. As
its name implies, a phased order lays out a series of actions the respondent
must take over time in order to come into compliance. Each action or phase is
linked to an enforceable compliance schedule and generally includes some
mandatory interaction between the respondent and the Agency. Most commonly,
each phase will include the development of a plan by the respondent to
accomplish a specified goal; the submittal of the plan to the Agency for
review, modification, or approval; and the eventual execution of the plan by
the facility owner.
A phased order format is especially well suited for addressing ground-
water monitoring violations at hazardous waste facilities. In many ground-
water cases, the nature of the violations is such that neither the facility
nor the Agency knows at the outset exactly what actions will be necessary and
sufficient to bring a facility into compliance. Many ground-water violations,
for example, derive directly from a facility's lack of understanding of the
hydrogeology beneath their site. As more information is collected and
interpreted, the steps appropriate for a respondent to take may change.
Developing a technical remedy under such circumstances it, of necessity, a
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OSWER Directive # 9931.1
dynamic process.
A phased order, however, can accommodate these changes. By proceeding in
stages, a phased order allows the Agency to structure and guide a facility's
actions without locking the facility or the Agency into a specific remedy that
may prove inadequate. Moreover, the order provides a mechanism for the Agency
to communicate more specifically EPA's expectations regarding various aspects
of the owner/operation's response. For example, the Agency can set out in the
order the information a hydrogeologic assessment must yield in order to
provide the level of detailed understanding the Agency considers necessary for
the installation of an adequate ground-water monitoring system. Where the
Agency has specific preferences on how certain types of information should be
obtained (e.g., a preference for specific tests or procedures), enforcement
officials can specify the use of the test in the order. Alternately, an order
may list objectives or considerations that an owner/operator must incorporate
into his/her decision-making. The order might specify, for example, that the
owner/operator must demonstrate in the plan that proposed sampling device:
1) minimizes the potential for degassing; and 2) minimizes the potential for
adsorption and desorption of constituents.
Appendix A includes a sample order that illustrates some of the above
options. This order is structured around the needs of the "transition
facility" described in chapter 5; recall that; this facility has an inadequate
detection monitoring system and has not detected a significant change in the
Part 265 indicator parameters. The preferred technical and enforcement
response for such a facility is summarized below.
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OSWER Directive # 9931.1
Action on the Part of Facility Owner
Enforcement Authority
1) Conduct detailed assessment of site's hydrogeology
(fill in gaps in current understanding of site's
subsurface).
2) Install a monitoring network (modify/expand an
existing system) to meet the objectives of 265/264
detection.
3) Sample for an expanded list of indicator parameters.
4) Determine whether contamination has occurred by
comparing upgradient and downgradient well samples
collected on an accelerated schedule.
5) If contamination is confirmed, begin characterizing
the plume based on monitoring of Appendix VIII
constituents.
. S265.91(a)
S270.14(c)(2)
2. S265.91
3. S270.14(c)(4)
4. S270.14(c)(4)
5. S270.14(c)<4)
To implement this remedy, the sample order in Appendix A mandates the
execution of six tasks:
1) submittal of a plan to conduct a hydrogeologic
assessment of the site;
2) Submittal of a list of constituents or parameters to
be monitored for (Note: sampling protocol and well
construction materials will be dictated by chosen
indicator parameters);
3) submittal of proposed monitoring network, including
well locations, screening depths, construction
methods, and design specifications (e.g., filter pack
material, slot size, well diameter);
4) submittal of a sampling and analysis plan;
5) Execution of the plans developed'in steps 1, 3, and 4
(following Agency approval);
6) If contamination is confirmed, submittal of a plan
outlining proposed assessment activities.
The order combines these tasks into three phases and establishes compliance
deadlines for each phase. For example, the order requires the owner/operator
to develop and submit the hydrogeologic assessment plan and the list of
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OSWER Directive # 9931.1
parameters by the same date (phase 1). Next, the order instructs the
respondent to complete the assessment and submit the results of the
investigation along with a monitoring network plan and a sampling and analysis
plan by the next compliance date (phase 2). After EPA approves or modifies
these plans, the order requires the respondent to make the first determination
of contamination and submit the results and na assessment plan (in
contamination is confirmed) by the final data (phase 3).
The sample order combines the required tasks in the above manner for the
purpose of illustration only. In every case, the logical sequence of events
will be dictated by the particulars to the site. Enforcement officials must
use professional judgement when deciding which tasks are appropriate, how they
should be combined, and what level of Agency/facility interaction the order
should mandate.
6.3 Technically Specific orders
Rather than structure the development of the technical remedy through
the order itself, enforcement officials may prefer to oversee the collection
of background data and the development of a proposed remedy through informal
interaction and negotiations with the facility. This approach is acceptable
as long as the work done in preparation of the remedy (e.g., hydrogeologic
assessment activities), and the final terms of the remedy itself (e.g., well
locations, sampling schedules), are set out in a technically-specific order
(usually on consent). The order may be issued before the wells are installed
and the sampling conducted, or it may be issued afterwards, if negotiations
become protracted and work is not proceeding expeditiously, however, the
Region should issue the order and place the facility on an enforceable
compliance schedule.
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OSWER Directive # 9931.1
Whether the work is conducted before the order is issued or after,
detail in the order regarding completed and proposed work will help avoid
future question of compliance with the order. The greater the specificity in
the order, the easier it will be for the Agency or a court to determine
whether the terms of the agreement have been met.
Enforcement officials should not underestimate the level of detail that
can be incorporated into orders. Well design specifications, decontamination
procedures, and sampling frequencies are all suitable for specification. In
addition, enforcement officials should consider specifying certain behaviors
or actions on the part of the respondent. For example, officials may wish to
require that a qualified geologist be present to take field notes (e.g.,
drilling logs and boring logs) during all well installations and soil boring
programs.
No requirement is inappropriate if it is directly related to the ability
of the owner/operator to meet his regulatory obligations. Table 6.1
summarizes some the of items enforcement officials may wish to consider when
developing orders.
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OSWER Directive # 9931.1
TABLE 6.1
POSSIBLE ELEMENTS OF A TECHNICALLY-SPECIFIC ORDER
HYDROGEOLOGIC ASSESSMENT
Boring Program
o Spacing of boreholes
o Depth and location of boreholes
o Vertical spacing of samples within each borehole
o Sampling equipment to be used for boring program
o Information to be logged for each borehole
o Requirement that hydrogeologist or geotechnical engineer be present to log boreholes
o Method for stabilizing selected boreholes until wells are installed
o Method of data presentation
o Requirement to use Unified Soil Classification System (USCS), Atterberg limits
Water Level Monitoring Program
o Spacing/number of piezometers or wells
o Method for water level measurements
o Required precision of measurement (to the nearest 0.1 foot or to the nearest centimeter)
o Requirement that measuring points be surveyed from established benchmarks
o Number of hydrogeologic cross sections and appropriate scale
o Water level contour maps
o Identification of local sources of ground-water withdrawal and recharge and approximate
schedule of use
Hydraulic Conductivities
o Method of determining hydraulic conductivities, porosity
Additional Information Requirements
o Description of regional geologic and hydrogeologic characteristics
o Analysis of geomorphic or topographic features that might influence ground-water flow system
o Zones of higher or lower permeability that might direct or restrict flow of contaminant
o Zones of significant fracturing or channeling in consolidated deposits
o Sand or gravel deposits in unconsolidated deposits
o Description of manmade hydraulic structures (pipelines, french drains, ditches, etc.)
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OSWER Directive # 9931.1
Additional Information Requirements (continued)
o Soil properties including cation exchange capacity, organic content temperature profile, grain
size distribution
o Identification of zones of recharge and discharge
o Interpretation of hydraulic interconnections between saturated zones
NETWORK DESIGN
Placement of Wells
o Maximum horizontal spacings
o Requirement for well spacings
o Depth requirements (most in surficial aquifer, one or more in deeper aquifer
o Exact well locations
o Minimum number of background wells
Well Design and Construction
o Casing material and diameter; prohibition against joining section with glues or sealants
o Screen slot size and maximum length
o Drilling techniques; prohibition on use of drilling muds
o Drill decontamination procedures
o Well development techniques; prohibition on use of water other than formation water or
"certified" pure water
o Filter pack material and method of filter-pack emplacement
o Method and material for sealing annular space
o Requirement for locked well caps
o Requirement that wells be designed to last at least 30 years
o Requirement that wells yielding turbid samples be redeveloped or replaced
o Information to be documented during construction of each well
SAMPLING AND ANALYSIS
Analyses of Interest
o List of parameters to be monitored for
o Requirement to collect data on major ions and antons, e.g., C1', Fe, Mn, Na*, Ca+, Mg*, NO3~,
PO4", silicate, ammonium, alkalinity, acidity.
o Requirement for field monitoring of pH, conductivity, and temperature for each sample
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OSWER Directive # 9931.1
Sample Collection
o Evacuation procedures; handling procedures for evacuation water
o Method for sampling "floaters" and "sinkers"
o Acceptable materials for inclusion in sampling devices and/or specific device to be used
o Performance standard for sample collection - "sampling device and methodology must be
selected to yield representative samples in light of the parameters that are being monitored"
o Requirement that sampling devices be dedicated to each well or procedures for
decontaminating equipment between wells
o Precautions on use of specific sample devices (e.g., bladder pumps must be operated in a
continuous manner so that they do not produce pulsating samples that are aerated in the
return tube upon discharge; check valves must be designed and inspected to ensure that
fouling problems do not reduce delivery capabilities or result in aeration of sample, etc.)
o Specification of acceptable cords/cables to be used to lower bailers; prohibitions on use of
braided cables, polyethylene or nylon cords
o Maximum sampling rates, generally not to exceed 100 milliliters/minute
SAMPLING PRESERVATION AND HANDLING
o Designation of appropriate sample containers - polyethylene containers with polypropylene
caps when metals are analyses of interest; glass containers when organics are analyses of
interest
o Requirement to use preservation methods designated in SW-846
o Preferred handling procedures e.g., volatile organics: no filtering or headspace in containers
allowed; metals: two aliquot from each sample - one filtered and analyzed for dissolved
metals, and one not-filtered and analyzed for total recoverable metals
ANALYSIS
o Requirement for use of field blanks, standards, and spiked samples for QA/QC
o Requirement to use analytical methods described in SW-846
o Requirement to perform field analysis of pH, conductivity, and temperature
CHAIN OF CUSTODY
o Minimum requirements for chain-of-custody program (e.g., sample labels, seals field bg book,
chain of custody record, sample analysis request sheet, laboratory log book)
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OSWER Directive # 9931.1
DATA REVIEW AND PRESENTATION
o Standard protocol for reporting of less than detection limit concentrations
o Requirement that data values for each pollutant be reported using the same number of
significant digits, in general at least three
o Requirement that units of measure for a given chemical parameter be consistent throughout
report and accompany each chemical named
o Requirement that raw data be submitted in a table that lists for each concentration value: the
pollutant, the well code, and the unit of measure
o Requirement that owner/operator compile the following ten statistics for each of four summary
tables organized by pollutant; by pollutant-well; by pollutant-date; and by pollutant-well data:
- Number of lower than detection limit values
- Total number of values
- Mean
- Median
- Variance
~ Standard Variation
- Coefficient of variation
- Range
- Minimum value
- Maximum value
ADDITIONAL PLUME CHARACTERIZATION ACTIVITIES
o Requirement to use certain remote sensing (e.g., aerial photography) and geophysical
techniques Z(e.g., electrical resistivity, ground-penetrating radar, borehole geophysics)
o Requirement to determine the physical and chemical characteristics of the facility's leachate
including density, solubility, vapor pressure, viscosity, and octanol-water partition coefficient
PERMIT APPLICATION REQUIREMENTS
o Requirement to collect background data on all Appendix VIII constituents detected in ground
water
o Requirement to submit applicable data, studies, and plans detailed in §2700.14(c)(1) - (8)
OTHER PROVISIONS
o Schedule for implementation including stipulated penalties for missed milestones
o Penalties for past and present violations
o Procedures for plan submittal, modification, and/or approval
o Provision that incorporates all plans, reports, and schedules required by the ORDER into the
ORDER itself such that any non-compliance with a plan, report or schedule constitutes non-
compliance with the ORDER
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OTHER PROVISIONS (continued)
o Clause that reserves government's right to take further action as necessary, including
additional ground-water monitoring and/or cleanup, to bring respondent into compliance with
RCRA other applicable State of Federal law
o Requirement to develop and implement a community relations plan
o Requirement to develop and implement a health and safety plan for workers involved with
monitoring or corrective action
o Requirement to designate corporate contact person, supply corporate organizational charts,
and provide background information and qualifications of any contractors used to meet the
terms of the ORDER
o Clause guaranteeing site access for employees, agents or contractors of complainant to
inspect and evaluate compliance with ORDER pursuant to authority in §3007 of RCRA 42 USC
§6927
o Requirement to devebp Quality Assurance Project Plan in accordance with EPA guidance
document QAMS - 005/80
o EPA indemnification clause
o Clause guaranteeing EPA's right to take or split samples
o Clause establishing EPA's ability to halt work if necessary
o Effective date
o Signature
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6.4 S3008(a) Orders
The $3008(a) process can accommodate the issuance of either phased or
technically-specific orders. In fact, a single order may incorporate both
approaches.
The process of issuing a $3008(a) order is diagrammed in Appendix B.
Briefly, the process involves the issuance of a complaint and compliance order
followed by negotiations (if desired by both parties), a hearing (if requested
by the respondent) and the issuance of a consent order or a final unilateral
order. If a respondent does not answer the complaint, (s)he become subject to
a default order. Generally, a respondent answer the complaint, requests a
hearing, and then either enters into a consent agreement with the Agency or
proceeds through the hearing and becomes subject to a final order issued
unilaterally.
If the Agency feels confident that a particular respondent will not
default, the compliance order issued with the complaint may include a broadly-
stated remedy such as "compliance with Part 265 subpart F and Part 270."
Since the respondent is required to undertake remedial activities and/or pay
any assessed penalty only after the consent order or final order is issued, it
is only in the consent or final order that specificity becomes critical. Some
Regions seem to prefer compliance orders with broadly-state remedies, although
developing a phased compliance order, which would require the respondent to
develop detailed plans, should prove to be fairly simple in most cases.
The Regions should try to avoid the situation where a broadly-stated
compliance order is issued with the complaint, the respondent fails to answer,
and a default order is issued. In this case the terms of the compliance order
may become the terms of the default order. Although respondents do not
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OSWER Directive # 9931.1
usually fail to answer complaints, especially when sizable penalties are
involved, the Region should consider the possibility of a respondent failing
to answer, before deciding on a format for the compliance order.
The following describes in more detail the options available under
S3008(a):
OPTION (1); The Region may issue a complaint with a phased compliance
order, enter negotiations with the respondent and then follow one of several
courses of action, depending on whether a settlement is reached with the
respondent. If both parties are willing to settle and can reach agreement on
the remedy, a consent order may be negotiated in either a phased or a
technically-specific format, depending on how detailed the discussions have
been in negotiating sessions. If in the course of negotiations the facility
has filled in any gaps in the hydrogeologic study and the Region and
respondent have agreed on such details as the list of indicator parameters and
the location of wells, a consent order could be negotiated that specifies the
location of wells, construction specifications, etc. The order might also
specify sampling and analytical procedures and schedules, or it might require
the respondent to develop and submit a plan for sampling and analysis. As
noted in section 5.2, the Region might choose to enter into a consent
agreement only after completion of the remedial activities by the respondent.
In such cases, the consent order should comment, in detail, the work that has
been completed by the respondent.
If the parties are unable to reach settlement and a hearing takes place,
the Region will have the opportunity to submit a proposed final order to the
Presiding Officer. The proposed final order may be phased or may be
technically specific, depending on the amount of information available to the
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OSWER Directive # 9931.1
Region. In any case, the proposed order should not simply include a broad
mandate, like "the owner/operator must come into compliance with Part 265
Subpart F and Part 270." It should either specify a detailed remedy itself or
should require the owner/operator to develop a plan that specifies details.
Unless it is clear to both parties what the order requires, it will be
difficult to determine whether the facility in fact achieves compliance. If
there is room for dispute as to what the order requires, it may be difficult
for the Agency to enforce the terms of the order, should that later become
necessary.
OPTION (2); The Region may issue a complaint with a proposed compliance
order that simply requires "compliance with Part 265 Subpart F and Part 270"
rather than a phased compliance order. The steps following complaint issuance
would be the same as those described in Option 1. Although it is acceptable
to put a broad remedy in the initial compliance order, the consent order or
proposed final order must contain specificity (or require the respondent to
propose the specifics). When the order goes into effect it must express what
"compliance" entails. As described earlier, the Regions should not use a
vaguely-worded compliance order if there is a chance that the respondent will
not answer the complaint.
6.5 S3013 Orders
Section 3013 orders can be issued in either a one- or two-step process.
Both processes are adaptable to the issuance of either phased or specific
orders. The one-step process involves one of the following:
O issuance of a phased order requiring the sequential development,
submittal and execution of plans; or
O issuance of a technically-specific order, after the details are
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OSWER Directive # 9931.1
worked out in negotiations with the respondent.
The two-step process involves the issuance of a preliminary order requiring
the development and submittal of plans for approval, followed by the issuance
of an order requiring the execution of the plans as modified by the Agency.
The second order could be phased or specific, depending on the amount of
information available. For example, if the remedy sought by the Agency
included a significant amount of hydrogeologic investigation as well as
construction and sampling of wells, the preliminary order might require the
development of a plan for the hydrogeologic study and a schedule for the
development and implementation of plans for later stages of the remedy. The
second order would then require the owner/operator to conduct the
hydrogeologic work and then sequentially develop, submit, and carry out plans
for well construction and sampling.
Alternatively, the preliminary order could require the development of
well construction and sampling plans, which would entail conducting a
hydrogeologic investigation. The second order then would be able to specify
detail as to the locations and specifications of the wells and plans for
sampling and analysis.
6.6 S3008(h) Orders
Section 3008(h) orders can accommodate both phased and specific orders
in a manner similar to that described in section 6.4 for $3008(a) orders.
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OSWER Directive # 9931.1
APPENDIX A:
MODEL PHASED ORDER FOR GROUND-WATER MONITORING
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OSWER Directive # 9931.1
EXAMPLE PHASED ORDER
Pursuant to Section(s) of the Resource Conservation and Recovery
Act (RCRA), 42 U.s.c. 69 it is ordered that shall comply with the
following requirements:
1. Within calendar days of the effective data of this ORDER, respondent
shall develop and submit for EPA approval a plan for conducting a
hydrogeologic investigation of the site. The plan should be designed to
provide the following information:
a. A description of the regional geologic and hydrogeologic
characteristics in the vicinity, including:
1) regional stratigraphy: description of strata including strike
and dip, identification of stratigraphic contracts, petrographic
analysis
2) structural geology: description of local and regional structural
features (e.g., folding, faulting, tilting, jointing, etc.)
3) depositional history
4) regional ground-water flow patterns
5) identification and characterization of areas of recharge and
discharge
b. An analysis of any topographic features that might influence the
ground-water flow system (Note that stereoscopic analysis of aerial
photographs should aid in this analysis).
c. A classification and description of the hydrogeologic properties of
all the hydrogeologic units found at the site (i.e., the aquifers and
any intervening saturated and unsaturated units), including:
1) hydraulic conductivity, effective porosity
2) lithology, grain size, sorting, degree of cementation
3) an interpretation of hydraulic interconnections between saturated
zones
d. Using a topographic map or aerial photograph as a base, submit maps
of structural geology and at least four hydrogeologic cross sections
showing the extent (depth, thickness, lateral extent) of all
hydrogeologic units within the facility property, identifying:
1) sand and gravel deposits in unconsolidated deposits
2) zones of fracturing or channeling in consolidated deposits
3) zones of higher permeability or lower permeability that might
direct or restrict the flow of contaminants
4) perched aquifers
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OSWER Directive # 9931.1
5) the uppermost aquifer (includes all water-bearing zones above the
first confining layer that may serve as a pathway for contaminant
migration including perched zones of saturation)
e. A description of water level or fluid pressure monitoring including:
1) water-level contour and/or potentiometric maps
2) hydrosolic cross sections showing vertical gradients
3) an interpretation of the flow system, including the vertical and
horizontal components of flow
4) an interpretation of any change in hydraulic gradients due, for
instance, to tidal or seasonal influences
f. A description of manmade influences that may affect the hydrogeology
of the site, identifying:
1) local water-supply and production wells with an approximate
schedule of pumping
2) manmade hydraulic structures (pipelines, french drains, ditches)
The plan should include a description of the field methods and other
information sources proposed for the study and a summary of which data will be
collected by each method. The proposed methods should include, but are not
limited to:
a. A program of soil borings, as required to adequately describe the
subsurface geology of the site. The program should provide for the
presence of a qualified geologist or geotechnical engineer to log and
describe the materials encountered during the boring. The program
should also describe the methods proposed to stabilize selected holes
until monitoring wells are installed.
b. A sufficient number of piezometers to characterize ground-water depth
and gradient (both horizontal and vertical) over the entire area of
the site.
c. The use of slug and/or pump tests as appropriate to determine
hydraulic conductivities.
NOTE: Geophysical techniques, both borehole and
surficial, are effective supplementary
investigative techniques that should be
considered.
The plan shall contain a schedule for conducting the proposed
hydrogeologic assessment and shall be submitted to:
Deputy Director, Air and Waste Management Division
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A-3
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OSWER Directive* 9931.1
Environmental Protection Agency
444 RCRA Way
Anytown, USA 00001
2. Within calendar days of the effective date of this ORDER, respondent
shall develop and submit to EPA a list of proposed indicator parameters
capable of detecting leakage of hazardous waste or hazardous constituents
into ground water. The parameters should be representative of
constituents at least as mobile as the most mobile constituents that
could reasonably be derived from the facility's waste, and should be
chose after considering:
a. the types, quantities, and concentrations of constituents in wastes
managed at the facility;
b. the mobility, stability, and persistence of waste constituents or
their reaction products in the unsaturated zone beneath the waste
management area;
c. the detectability of the indicator parameters, waste constituents or
reaction products in ground water;
d. the concentration or value and the natural variation (known or
suspected) of the proposed monitoring parameter in background ground
water.
The list should include the basis for selecting each proposed indicator
parameter, including any analyses of calculations performed. The basis
for selection must include chemical analysis of the facility's waste
and/or leachate as appropriate.
The list should also include parameters to characterize the site-specific
chemistry of ground water at the site, including but not limited to the
major anions and cations that make up the bulk of dissolved solids in
water (i.e., cl~, Fe, Mn, Na+, SO4, Ca+, Mg+, NO3~, PO4', silicate,
ammonium).
3. within calendar days of written approval by EPA, the respondent shall
promptly implement the hydrogeologic investigation plan according to the
terms and schedules contained therein.
4. within calendar days after completion of the hydrogeologic
investigation, the respondent will submit to EPA a full report that
provides the information described in paragraph 1.
5. Also within days after the completion of the hydrogeologic
investigation, the respondent will submit to EPA a plan for the design
and installation of a monitoring well network that will meet the
following requirements:
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OSWER Directive # 9931.1
a. The upgradient wells must be capable of yielding samples that are
representative of background water quality in the uppermost aquifer
and are not affected by the facility. The number and location of the
wells must be sufficient to: 1) characterize the spatial variability
of background water; and 2) meet the needs of the statistical test
proposed pursuant to paragraph .
b. The downgradient wells must be capable of immediately detecting any
statistically significant amounts of hazardous waste or hazardous
constituents that migrate from the facility into the uppermost
aquifer.
c. The monitoring system should be designed to operate for a period of
no less than thirty years.
The plan should include the following elements:
a. A description and map of proposed well locations, including a survey
of each well's surface reference point and the elevation of its top
of casing.
b. Description of well-intake design, including screen slot size and
length; filter pack materials and method of filter-pack emplacement.
c. Description of well-intake design, including screen slot size and
length; filter pack materials and method of filter-pack emplacement.
d. Type of proposed well casing and screen materials. The choice of
well materials should be made in light of the parameters to be
monitored for and the nature of the leachate that could potentially
migrate from the facility. The well materials should: 1) minimize
the potential of adsorption and desorption of constituents from the
samples; and 2) maintain their integrity for the expected life of the
system (at least thirty years).
e. Methods used to seal the well from the surface and prevent downward
migration of contaminants through the well annulus.
f. Description of the methods or procedures used to develop the wells.
6. Also within days after the completion of the hydrogeologic
assessment, the Respondent shall submit a sampling and analysis plan
capable of yielding representative samples for a comparison of up- and
downgradient wells. The plan should include the following elements:
a. Well evacuation procedures including volume to be evacuated prior to
sampling and handling procedures for purged well water;
b. Sample withdrawal techniques. Sampling equipment and materials
(tubing, rope, pumps, etc.) shall be selected to yield representative
samples in light of parameters to be monitored for. The sampling
protocol will include field measurement of pH, conductivity, and
temperature for each sample.
c. sample handling and preservation techniques including provision for
field-filtration of samples as appropriate.
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OSWER Directive # 9931.1
d. Procedures for decontaminating sample equipment between sampling
events.
e. Procedures for measuring ground-water elevations at each sampling
event.
f. Chain of custody procedures to be used for all phases of sample
management.
g. Laboratory analytical techniques, including EPA-approved analytical
methods and quality assurance, detection levels, quality control.
procedures.
h. Procedures for performing a comparison of upgradient and downgradient
ground water to determine whether contamination has occurred. The
procedures should include:
1) A proposed method (statistical or otherwise) to compare
upgradient and downgradient well water that provides a reasonable
balance between the probability of falsely identifying and
failing to identify contamination.
2) An accelerated sampling schedule to establish data for the
comparison. In no instance shall sampling exceed months.
3) A proposed method for data organization and presentation.
7. By no later than days after EPA approval of the monitoring well
network plan, Respondent shall complete the installation of the
monitoring well network.
8. By no later than days after the installation of the monitoring well
network, Respondent shall implement the sample and analysis plan, perform
the comparison and submit the results to EPA for review.
9. If there is a statistically significant difference between upgradient and
downgradient well water, the Respondent will develop a ground-water
assessment plan capable of determining the following:
a. The extent of migration of hazardous constituents into ground water.
b. The concentration of each Appendix VIII constituent throughout the
plume or the maximum concentration of each Appendix VIII in the
plume.
c. Background concentrations for all Appendix VIII constituents detected
in ground water.
d. Waste/leachate characteristics including specific gravity, viscosity,
solubility in water, and octanol-water partition coefficient.
e. Soil properties including cation exchange capacity, organic content,
and temperature.
The plan should describe the methods proposed to accomplish the above
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A-6
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OSWER Directive # 9931.1
objectives including indirect and direct techniques. The sampling and
analysis plan developed pursuant to paragraph 6 should be revised to meet
the new objectives of this monitoring phase. The plan should include an
expeditious schedule for the implementation of the above assessment, and
should be submitted to EPA no later than 15 days after the confirmation
of leakage.
10. Within calendar days of EPA approval of the assessment plan, the
Respondent will begin to execute the plan according to the terms and
schedules contained therein. Within days of the completion of the
assessment, the Respondent will submit the results to the Agency,
including all raw data collected, all calculations performed, and an
interpretation of the findings.
11. Based on the results of the ground-water assessment, the Respondent will
fulfill his/her obligations pursuant to S270.14(c)(7) or (8) by
developing a compliance monitoring and/or corrective action program as
appropriate. Respondent will submit whatever plans and engineering
studies are necessary to describe the proposed program to EPA no later
than months after the completion of the ground-water assessment
described in paragraph nine.
12. All plans, reports, and schedules required by the terms of this ORDER
are, upon approval by EPA, incorporated into this ORDER. Any
noncompliance with such approved studies, reports, or schedules shall be
termed noncompliance with this ORDER.
13. In the event of Agency disapproval (in whole or in part) of any plan
required by this ORDER, EPA, shall specify any deficiencies in writing. •
The Respondent shall modify the plan to correct the deficiencies within
days from receipt of disapproval by EPA. The modified plan shall..be
submitted to EPA in writing for review.
should the Respondent take exception to all or part of EPA's disapproval,
the Respondent shall submit to EPA a written statement of the grounds for
the exception. Representatives of EPA and the Respondent may confer in
person or by telephone in an attempt to resolve any disagreement. If
agreement is reached, the resolution shall be written and signed by
representatives of each party. In the event that resolution is not
reached within 15 days, the Respondent shall modify the plan as required
by EPA.
14. in the event that the respondent fails to:
a. Comply with the milestones contained in paragraphs 3, 7, 8, or 10;
b. Provide the plans and information described in paragraphs 1, 2, 4, 5,
6, 8, 9, 10, or 11;
(s)he shall pay stipulated penalties from the date of the violation
as follows:
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A-7
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OSWER Directive # 9931.1
a. $5,000.00 per day for failure to comply with a milestone listed
above;
b. $1,000.00 per day for failure to provide a plan or information listed
above.
15. Notwithstanding compliance with the terms of this ORDER, Respondent may
be required to take further actions as necessary, including additional
ground-water monitoring, assessment, and/or corrective action, to come
into compliance with RCRA, or other applicable state or Federal laws.
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OSWER Directive # 9931.1
APPENDIX B:
DIAGRAM OF PART 22 ADMINISTRATIVE PROCEEDINGS
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PART 22 - FORMAL ADMINISTRATIVE PROCEEDINGS
Complaint
and
Compliance
Order
Issued
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Respore
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Answi
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er ,
Respondent
Answers
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Default
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Issued
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, i
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,j
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l,™3ii* ,„»».., *!,»,„,, „., !,
Consent
Agreement or
Consent
Order
"1
''• in!tiai i oSS-
-\ Dadston Issued
^ i
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•i
within 20 days after the parties are notified of the availability of the heating transcript, any party may submit tor consideration, proposed findings
of fact, conclusions of law, and a proposed order, together with supporting briefs.
-------
ENFORCEABLE COMPLIANCE SCHEDULE FOR MODEL ORDER
W*l network
and Adrnpftng
plan appro/ad
Hydiofloologlc
plan approved
Hydrogeotogtc
Investigation
plan due to
Agency
HydrogeOlOgiC
results due
Sampling
results
due
If leakage Is
confirmed, submit
plan for plume
characterization
Well network
plan due
RESPONSIBILITIES
Sampling and
Analysis Plan Due
Plume
Characterization
pten approval
AGENCY
BESPONSIBttJTIES
Plume
Characterization
report due to
Agency
Submlttal of compliance
monitoring and/or
corrective action program
(as appropriate) for
incorporation in permit
RESPONDENT
RESPQNSiafUTIES
NOTE: Timeframes must be adjusted to accomodate site-specific factors.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASH.NGTON. O.C. 20460 9*81 • 0 0 « 6
NOV I 3
• IWT w ivwv SOLID WASTE AND EMERGENCE RE3PON!
MEMORANDUM
SUBJECT RCRA Regulatory Status of Contaminated Ground Water
FROM: Marcia E. Williams, Director ¥\
Office of Solid Waste ' \
TO: Patrick Tobin, Director
Waste Management Division, Region IV
This is in response to your memorandum of September 18,
1986, regarding the regulatory status of ground water
contaminated with hazardous waste leachate. To answer this
question, one first has to determine the status of ground
water. Under the regulations, ground water contained in the
aquifer is not considered a solid waste, since it is not
"discarded" in the sense of being abandoned, recycled,
or inherently waste-like as those terms are defined in the
regulations. See 40 CFR 261.2(a)-(d). Therefore, contami-
nated ground water cannot be considered a hazardous waste
via the mixture rule (i.e., to have a hazardous waste
mixture, a hazardous waste must be mixed with a solid waste;
see 40 CFR 261.3(a)(2)(iv)). Nevertheless, ground water
contaminated with hazardous waste leachate is still subject
to regulation since it contains a hazardous waste. Therefore,
the treatment, storage, or disposal of ground water contaminated
with hazardous waste leachate must be handled as :Lf the
ground water itself were hazardous since hazardous waste I/
leachate is subject to regulation under Subtitle C of RCRA.
However, if the ground water is treated such that it no
longer contains a hazardous waste, the ground water would no
longer be subject to regulation under Subtitle C of RCRA.
I/ This memo more precisely explains the position on ground
~ water contamination presented in John Skinner's memo dated
December 26, 1984.
-------
OSWE.l :'.'.iC, C-i.tECTivE >\0.
948 ] . 00-6 -.
Taking this interpretation and applying it to the example
in your memorandum, the ground water containing a listed
hazardous waste, once collected, is subject to regulation
under the hazardous waste regulations. However, if as a
result of treatment, the ground water no longer contains the
hazardous waste leachate, the ground water would no longer be
subject to the hazardous waste rules.
Your letter also raises the question of treatment of
ground water within the context of corrective action. If the
corrective action is taken at an interim status facility in
compliance with a §3008(h) order, treatment can take place.
We are considering the possibility of amending the regulations
to clarify the relationship between corrective action and
the reconstruction ban (§27'0.72(e)). More broadly, the
Agency is currently examining the issue of whether permits
should be required for any corrective actions. We are also
developing rules for corrective action under RCRA §300^(u) .
Until this analysis is completed, if the corrective action
takes place at a permitted facility, it can be handled as a
permit modification.
Please feel free to call Matt Straus, of my staff, if
you have any further questions; his telephone number is ^75-
8551 (PTS).
cc: Haza'rdous Waste Division Directors,
Regions I-III and V-X
Gene Lucero, OWPE
Lloyd Guerci, OWPE
Mark Greenwood, OGC
Steve Silverman, OGC
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OSWER Directive No. 9476.00-14
March 31, 1988
MEMORANDUM
SUBJECT: Ground-Water Monitoring at Clean-Closing Surface Impoundment
and Waste Pile Units
FROM: J. Winston Porter
Assistant Administrator
TO: Regional Administrators
Regions I-X
Several provisions of HSWA have made it necessary or desirable
for a number of owners or operators to close their land disposal
units. Many of these units are going through "clean closure"; that
is, removal of all waste residues, contaminated containment system
components, contaminated subsoils, and structures and equipment
contaminated with waste and leachate. Several Regions have questioned
whether a clean closure demonstration requires ground-water monitoring
before the unit is declared clean for the purposes of closure under
sections 264.228(a), 264.258(a), 265.228(a), or 265.258(a). The
purpose of this memo is to reiterate and clarify Agency policy in this
regard. '.
It has been the Agency's policy for some time that owners and
operators must not be allowed to "walk away" from units with
inadequate ground-water monitoring systems or with ground-water
contamination at closure. This policy has been described in my August
27, 1985 memorandum regarding RCRA policies on ground-water quality at'
closure, in the FY 1987 and 1988 RCRA Implementation Plans (RIP), and
in the clean closure policy ..outlined in the preamble to the final
"conforming changes" rule concerning clean closure of surface
impoundments, published in the Federal Register on March 19, 1987 (52 ai
FR 8704). If an adequate ground-water monitoring system is in place,
it is still the Agency's policy that as part of the clean closure
certification process EPA must review ground-water monitoring data to
verify that there is no ground-water contamination from the unit(s).
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-2-
There exists, however, a universe of land disposal units that may
not have a ground-water monitoring system, or may have an inadequate
ground-water monitoring system in place at closure. These include
interim status waste piles, interim status surface impoundments that
contain corrosive-only hazardous waste that are eligible for a waiver
under section 265.90(e), interim status units exempted from ground-
water monitoring on the basis of the self-implemented waiver found in
section 265.90(c), or units simply failing to comply with the Subpart
F requirements.
Many of these units have already closed by removing waste and
certifying "clean closure" without assuring clean ground water.
Congress has made it clear that ground-water contamination at
treatment, storage, and disposal units must be addressed. Section
3005(i) of RCRA requires all units receiving hazardous waste after
July 26, 1982 to comply with ground-water monitoring standards
established under Section 3004, regardless of their current active or
inactive status. Any closed interim status unit covered under Section
3005 (i) that does not meet the 40 CFR 264 clean-closure standard must
be issued a post-closure permit implementing the appropriate Subpart F
program. In order to avoid post-closure permit responsibilities,
interim status facilities that have "clean closed" will need to
present evidence that the "clean closure" is in compliance with the
Agency's clean-closure rules found in sections 264.228 and 264.258.
(This position is clearly presented in the Final Codification Rule, 52
FR 45788, December 1, 1987) ,. Reexamination of all prior clean
closures should be performed as suggested by the 1988 RIP and in
concert with individual Regional priorities.
We recognize, however, that under certain circumstances for units
that "clean-closed" under interim status a demonstration that ground
water is uncontaminated might be made without a ground-water
monitoring system in place. In order to preclude the need for ground-
water monitoring at a clean closing unit the owner or operator would
need to meet the decontamination standard as codified in section
270.1(c)(5) and (6) and make a demonstration in accordance with
applicable waiver requirements found in section 264.90(b)(4). For
clean-closing units at least the following criteria would need to be
met to assure compliance with the general closure performance standard
(section 264.111):
1) Accurate historical data on wastes handled at the unit have
been carefully recorded, including a complete analysis of
waste composition and characteristics;
2) The properties of the waste constituents together with the
geochemical environment of the soils show no potential for
migration to ground-water during the active life and any post-
closure care period; and
3) Other supportive data (e.g., an alternative monitoring system
or other geophysical verification) needed to ensure protection
of human health and the environment.
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-3-
We recognize that these criteria for not requiring ground-water
monitoring are stringent. However, these restrictions are necessary
because the Part 264 clean-closure demonstration may ultimately
relieve the owner or operator of any further Subtitle C
responsibilities at the closing unit or facility.
For those units authorized to operate under Section 3005(e) that
stopped receiving waste prior to July 26, 1982, several tools exist
for obtaining confirming data. Where the Administrator has
determined, based on any information, that there has been a release of
hazardous waste (or hazardous waste constituents ) from a facility
into the environment, Section 3008(h) may be used to perform studies
(including ground-water monitoring) and/or corrective measures, as
necessary to protect human health or the environment.
Where imminent and substantial endangerment can be established,
studies and corrective measures can be required under Section 7003.
Section 3013 could be used to collect data and to implement ground-
water monitoring, where the presence or the release of hazardous waste
"may present substantial hazard" to human health or the environment.
Where a permit for the facility is otherwise required, corrective
action (including ground-water monitoring) for improperly "clean
closed" units may be effected under Section 3004(u) during the permit
process. In cases where an adequate ground-water monitoring system
has not been installed and there is no valid ground-water monitoring
waiver, and/or where other Subtitle C requirements have been violated,
attempts at clean closure, whether successful or not, should not
preclude the imposition of enforcement authorities, for example under
Section 3008(a) to obtain remedies and/or penalties under Section
3008(g).
Should you have any questions regarding the content of this
memorandum, please contact Chris Rhyne of my staff at FTS 382-4695.
cc: Waste Management Division Directors, Regions I-X
RCRA Branch Chiefs, Regions I-X
Permit Section Chiefs, Regions I-X
Enforcement Section Chiefs, Regions I-X
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MEMORANDUM Jan. 24, 1989
SUBJECT: Status of Contaminated Groundwater and Limitations on
Disposal and Reuse
FROM: Sylvia K. Lowrance, Director
Office of Solid Waste
TO: Jeff Zelikson, Director
Toxics and Waste Management Division
Region IX
In your memo of December 16, 1988 and the attached
materials, you stated your understanding of the current policy on
the classification of contaminated groundwater and described
issues which have arisen in California regarding reuse of
contaminated groundwater from a Superfund site.
You have accurately stated the effects of the "contained in"
policy which governs situations such as the one you have
described. Briefly, a contaminated groundwater which has been
treated such that it no longer contains hazardous constituents,
need not be considered to be a hazardous waste, and beneficial
reuse of the water is permissible. We have not yet issued
definitive guidance on levels below which the groundwater is no
longer considered to contain hazardous wastes. Until such
definitive guidance is issued, the Regions may determine these
levels on a case-specific basis.
It is our expectation that ultimately the guidance on levels
of hazardous wastes which may remain will mirror the levels in
the De Minimis rule which is now under development by OSW. I
know that Region IX has been participating in the Work Group
discussions and reviews of this proposal and I urge you to
continue this involvement.
In its present form, the De Minimis approach contemplates
levels based on health-based standards (where available),
assuming direct exposure. With respect to the constituents of
concern at the Fairchild Superfund site — trichloroethane and
dichloroethylene — the levels remaining in the treated
groundwater are well below the MCLs and would therefore be
consistent with the De Minimis approach.
If you have additional questions, please contact David Fagan
at FTS 382-4740. Questions on the De Minimis rule should be
addressed to Robert Scarberry at FTS 382-4770.
cc: Tina Kaneen
Henry Longest
-RETYPED FROM THE ORIGINAL-
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s«_
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1 WASHINGTON. D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
D'X 21 ;c59 OSWER Directive # 9234.1-06
MEMORANDUM
SUBJECT: Applicability of Land Disposal Restrictions to
RCRA and CERCLA Ground Water Treatment Reinjection
Superfund Management Review: Recommendation No. 2
FROM: Don R. Clay, Assistant Administrator
Office of Solid Waste and Emergency Response
TO: Waste Management Division Directors
Regions I - X
Regional Counsel
Regions I - X
Purpose
There has been some question as to whether ground water
contaminated with restricted RCRA hazardous wastes, which is
extracted during a RCRA corrective action or CERCLA response
action, must meet the best demonstrated available technology
(BOAT) identified for that waste under the RCRA land disposal
restrictions (LDRs) prior to each reinjection, in a pump- and- treat
reinjection remediation system. ( See RCRA sections 3004 (f), (g)
and (m) , and 40 C.F.R. Parts 148 and 268.) This memorandum
explains EPA's interpretation of whether the LDRs are applicable
or (under CERCLA response actions only) relevant and appropriate
to such reinjections or to the remediation as a whole.
RCRA LDRs prohibit land disposal of restricted RCRA hazardous
wastes that do not meet treatment . standards after the effective
date of the restrictions. Treatment standards for RCRA hazardous
wastes are based upon the best demonstrated available technology
(BOAT) identified for that waste. See 40 C.F.R. 268. Because
placement of hazardous waste into underground injection wells
constitutes "land disposal" under LDR (see RCRA section 3004(k)),
and the ground water undergoing reinjection may contain a
restricted waste, the issue has been raised as to whether each
reinjection of contaminated ground water should meet BDAT during
response or corrective actions.
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RATIONALE
Ground water restoration under RCRA corrective actions and
CERCLA response actions often involves withdrawal, treatment of
the contaminated water, and reinjection of the treated water into
the ground. The land disposal restrictions (LDR) of the Resource
Conservation and Recovery Act (RCRA) prohibit land disposal of
restricted RCRA hazardous wastes that do not meet treatment
standards after the effective date of the restrictions. Treatment
standards for RCRA hazardous wastes are based upon the best
demonstrated available technology (BDAT) identified for that
waste. See 40 C.F.R. 268. Because placement of hazardous waste
into underground injection wells constitutes "land disposal" under
LDR (fififi RCRA section 3004OO), and the ground water undergoing
reinjection may contain a restricted waste, the issue has been
raised as to whether each reinjection of contaminated ground water
should meet BDAT during response or corrective actions.1
Section 3020 of RCRA [previously section 70102] specifically
addresses waste injection in the context of CERCLA and RCRA
cleanups. RCRA section 3020(a) bans hazardous waste disposal by
underground injection into or above an underground source of
drinking water (within one-quarter mile of the well). However, -
RCRA section 3020(b) exempts from the ban all reinjections of
treated contaminated ground water into such formations undertaken
as part of a CERCLA section 104 or 106 response action, or a RCRA
corrective action. To qualify for the exemption, the following
three conditions must be met: (1) the injection is a CERCLA
response action or a RCRA corrective action, (2) the contaminated
ground water must be treated to substantially, reduce hazardous
constituents prior to such injection, and (3) the response action
or corrective action must be sufficient to protect human health
and the environment upon completion.
Although RCRA section 3020 and the LDR provisions at RCRA
sections 3004(f), (g) and (m) arguably can address the same
activity, RCRA section 3020 specifically applies to all CERCLA and
1 CERCLA remedial actions are required to meet Federal
requirements and standards at completion of the remedial action if
the Federal standards are applicable or relevant and appropriate
requirements (ARARs), absent invocation of a statutory waiver.
See CERCLA section 121(d). Agency policy and the proposed
National Contingency Plan (NCP) require the Agency to comply with
all ARARs pertinent to the action during the course of a remedial
action, as well as upon its completion, see the proposed NCP
(published at 53 Fed. Reg. 51,394 (Dec. 21, 1988)(to be codified
at 40 C.F.R. 300.435(b)(2)), and CERCLA Compliance with Other Laws
Manual; Part If 1-8 (OSWER Directive number 9234.1-01, August 8,
1988) .
2 RCRA section 3020 was section 7010 in the Hazardous and
Solid Waste Amendments of 1984, but was re-numbered in 1986.
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RCRA ground water treatment reinjections into Class IV injection
wells.3 Consistent with traditional principles of statutory
construction, RCRA section 3020 — which is directly focused on
injections of treated contaminated ground water into Class IV
wells during cleanups — should be controlling for such
injections; a contrary reading would render section 3020(b)
meaningless. Where Congress has provided two potentially
applicable statutory provisions, a choice between them is both
necessary and appropriate, and within the discretion of the expert
agency. Accordingly, EPA construes the provisions of RCRA section
3020 to be applicable instead of LDR provisions at RCRA sections
3004(f), (g), and (m), to reinjections of contaminated ground
water into an underground source of drinking water (USDW), which
are part of a CERCLA response action or RCRA corrective action.
As a result, the three conditions of RCRA section 3020(b)
must be met during response or corrective actions involving
ground water treatment reinjection into or above underground
sources of drinking water. Failure to meet these conditions bans
the activity under RCRA section 3020(a).4 First, the injections
must be part of a CERCLA response action or a RCRA corrective
action. Second, each reinjection has to be treated to
"substantially reduce hazardous constituents prior to such
injection..." (RCRA section 3020(b)). Until guidance is prepared
addressing the issue, steps necessary to "substantially reduce"
hazardous constituents during a RCRA corrective action or a CERCLA
response action should be decided on a caserby-case basis. Third,
the response or corrective action upon completion must "be
sufficient to protect human health and the environment" (RCRA
section 3020(b)). RCRA and CERCLA statutes, regulations and
policies should be reviewed to determine protectiveness.
The issue may also arise under CERCLA as to whether LDRs are -
relevant and appropriate requirements when treated ground water is
reinjected into Class IV wells as part of a CERCLA response
action. In order to be considered to be both "relevant" and
"appropriate," a requirement must address problems or situations
similar to the circumstances of the release or remedial action
contemplated, and be well-suited to the site. A key factor in
determining the potential relevance and appropriateness of a
3 Class IV injection wells are used to inject contaminated
ground water into or above an underground source of drinking
water. See 40 C.F.R. 146.5(d). In most situations, ground water
treatment reinjection involves only Class IV injection wells
because treated ground water.is recharged back into an
underground source of drinking water (USDW) during pump-and-treat
activities, not beneath it. Other classes of wells are not
subject to section 3020's special provisions.
4 Note, however, that an ARARs waiver may be appropriate in
certain cases for actions taken under CERCLA.
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requirement is to compare the CERCLA response objective with the
purpose and objective of the requirement, see "CERCLA Compliance
with Other Laws Manual" at p. 1-65 (EPA, August 8, 1988); proposed
NCP, 53 FR at 51436 (Dec. 21, 1988) (proposed section
300.400(g)<2».
The ultimate purpose of treating and reinjecting ground water
into Class IV wells is to restore the formation to drinking water
quality. EPA believes that standards that have been specifically
developed to establish drinking water quality levels (such as
MCLs5) are particularly well-suited to the accomplishment of that
purpose. Although LDRs also prescribe treatment levels, those
levels were not specifically developed to achieve drinking water
quality (although they may often have that result). Thus, where
drinking water standards are available, the Agency believes that
they will generally be the relevant and appropriate requirement to
use in setting treatment standards for CERCLA cleanups of drinking
water formations.
In situations where no drinking water standard has been
promulgated for the contaminants to be treated, the Region should
consider potentially relevant and appropriate requirements
(including any available health-based standards, LDR treatment
standards, etc.) and attain the standard, if any, that the Agency
finds is "relevant and appropriate under the circumstances of the
release" (or justify a waiver).6 EPA guidance sets out a number
of factors for deciding if a requirement is relevant and
appropriate under the circumstances of the release, see CERCLA
Compliance with Other Laws Manual, at p. 1-67.
NOTICE: The policies set out in this memorandum are intended
solely for the guidance of Government personnel. They are not
intended, nor can they be relied upon, to create any rights
enforceable by any party in litigation with the United States.
EPA officials may decide to follow the guidance provided in this
memorandum, or to act at variance with the guidance, based on an
analysis of specific site circumstances. The Agency also reserves
the right to change this guidance at any time without public
notice.
5 see the discussion of MCLs and MCLGs in the proposed and
final NCP.
6 If no such standards are relevant and appropriate, TBCs may
be used as cleanup levels; use of a TBC should be explained and
justified for each specific case.
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Separate from the restrictions found in RCRA LDRs, an
independent provision of the statute, RCRA Section 3020, bans
hazardous waste injection into drinking water formations (Class IV
injection wells), unless the conditions in subpart (b) are met.
Subpart (b) permits reinjection of contaminated ground water that
has been treated if: (1) the injection is a CERCLA response action
or a RCRA corrective action, (2) the contaminated ground water is
treated to substantially reduce hazardous constituents prior to
each injection, and (3) the response action or corrective action
is sufficient to protect human health and the environment upon
completion. (S£fi RCRA section 3020(b).)
Resolution
For the reasons specified in the attachment to this
memorandum, LDR is not applicable to these activities. Instead of
LDR, RCRA section 3020 applies to reinjection of treated
contaminated ground water into Class IV injection wells during
CERCLA response actions or RCRA corrective actions. Moreover, for
CERCLA response actions where the goal is to clean up ground water
to drinking water levels, the Agency believes that health-based
drinking water standards (e.g. MCLs) —'rather than LDRs — will
generally be the relevant and appropriate cleanup standard. See
the attachment.
Until guidance addresses the issue, what is required to
"substantially reduce" hazardous constituents prior to each
injection in a CERCLA response action or RCRA corrective action
should be determined on a case-by-case basis. RCRA and CERCLA
program policies and guidance should be reviewed to determine
protectiveness upon completion of the action.
Attachment
cc: CERCLA and RCRA Branch Chiefs
Office of Drinking Water
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Section 8
Interim Status
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INTERIM STATUS
en
«
O
1-3
M
O
z
00
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Section 8 - Interim Status - Table of Contents
(Documents that appear in their entirety in this Section of the Compendium)
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
mmm/sm
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
msmmm
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
mmsmm
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
Interim Status Under Section 3005(e) of RCRA
9935.0
03/14/81
OSW
Permitting
mmmm/mm
RCRA Section 3005(e); Continued Operation of Hazardous Waste Facilities by
Owners or Operators Who Have Failed to Achieve Interim Status
9935.1
07/31/81
OWPE
Permitting
Applicability of Interim Status Standards, 40 CFR Part 265, to Small Quantity
Generators Who Have Notified and Filed a Part A Permit Application
10/04/82
Office of Enforcement Counsel
Permitting
mmsmimm
RCRA Loss of Interim Status Enforcement Strategy
9930.0-1
10/16/85
OWPE
Ground Water
Permitting
TITLE
DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED
SOURCE
OTHER
RELEVANT
SECTIONS
Interim Status Under the Boiler and Industrial Furnace Rule
08/19/91
OSWER
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Section 8 - Interim Status - Cross References
(Documents that are referenced under Interim Status but appear in the
Primary Section indicated)
TITLE Criteria for Eliminating Headquarters Concurrence on RCRA Section 3008(h) Orders
DIRECTIVE NO. 9940.3
SOURCE OSWER
PRIMARY Corrective Action
SECTION
TITLE Ground Water Monitoring Requirements During Interim Status
DIRECTIVE NO.
SOURCE OSW/OWPE -- Office of Legal Enf. Counsel
PRIMARY Ground Water
SECTION
TITLE Guidance for Public Involvement in RCRA Section 3008(h) Actions
DIRECTIVE NO. 9901.3
SOURCE OWPE
PRIMARY Corrective Action
SECTION
TITLE Guidance on Administrative Records for RCRA Section 3008(h) Actions
DIRECTIVE NO. 9940.4
SOURCE OWPE/OECM
PRIMARY Corrective Action
SECTION
TITLE Guidance on Developing Compliance Orders Under Section 3008 of RCRA; Failure to Submit or
Submittal of Incomplete Part B Permit Applications
DIRECTIVE NO. 9936.1
SOURCE OECM
PRIMARY Permitting
SECTION
KvCC'V.H' -\"" "X % "~ '' *? "* v^%-- •• '
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Section 8 - Interim Status - Cross References
(Documents that are referenced under Interim Status but appear in the
Primary Section indicated)
Implementation of EPA Criminal Enforcement Strategy for RCRA Interim Status Facilities
DIRECTIVE NO. 9930.01 -a
SOURCE OWPE/NEIC
PRIMARY Civil/Criminal Actions
SECTION
TITLE Interpretation of Section 3008(h) of the Sojid Waste Disposal Act
DIRECTIVE NO. 9901.1
SOURCE OSWER/OECM
PRIMARY Corrective Action
SECTION
TITLE Issuance of and Administrative Hearings on RCRA §3008(h) Corrective Action Orders for
Hazardous Waste Management
DIRECTIVE NO.
SOURCE
PRIMARY Corrective Action
SECTION
TITLE Model 3008(h) Unilateral Order (Interim Final)
DIRECTIVE NO.
SOURCE OWPE
PRIMARY Corrective Action
SECTION
SSS^-SiSSSfSSSSiSSS
TITLE National RCRA Corrective Action Strategy
DIRECTIVE NO.
SOURCE OWPE/OSW
PRIMARY Corrective Action
SECTION
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Section 8 - Interim Status - Cross References
(Documents that are referenced under Interim Status but appear in the
Primary Section indicated)
TITLE
RCRA Ground Water Monitoring Compliance Order Guidance
DIRECTIVE NO. 9931.1
SOURCE OWPE
Ground Water
PRIMARY
SECTION
TITLE
Use of Section 3008(h) Orders or Post-Closure Permits at Closing Facilities
DIRECTIVE NO. 9502.00-7
SOURCE OSWER
Corrective Action
PRIMARY
SECTION
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9935.0
MEMORANDUM March 14, 1981
SUBJECT: Interim Status under Section 3005(e) of RCRA
FROM: Steffen W. Flehn
Deputy Assistant Administrator
for Solid Waste (WH-562)
Alan W. Eckert
Acting Associate General Counsel
Water & Solid Waste Division (A-131)
R. Sarah Compton
Deputy Assistant Administrator
for Water Enforcement and Permits (EN-335)
Douglas M. MacMillan
Acting Deputy Assistant Administrator
for Hazardous Waste Enforcement (EN-335)
TO: Headquarters and Regional RCRA Enforcement, Program,
OGC and ORC Personnel
There appears to be some confusion, both at headquarters and
in the Regions, over EPA's role in the acquisition of interim
status by hazardous waste management facilities. This confusion
has resulted in communications to the public which are at odds
with positions EPA has taken in litigation and which could
conceivably prejudice future enforcement efforts. The purpose of
this memorandum is not to establish any hew policy in this area,
but rather to clarify the law governing EPA's role in the
acquisition of interim status so that we do not overstep or
undermine that role in our dealings with the public.
As background, it should be noted that we have already sent
thousands of postcards to facilities notifying them that we have
received their Section 3010 notification forms and Part A permit
applications and further notifying them that, on the basis of
this information, they appear to initially qualify for interim
status. In a short while, we plan to supplement these postcards
with a letter setting forth the conditions for operating during
interim status, based upon a more comprehensive review of the
contents of the facilities' Part A applications. Notwithstanding
these systematic attempts to apprise facilities of their
eligibility for interim status, we have gotten and will continue
to get independent inquiries from owners and operators, citizens,
etc. asking us whether particular facilities have interim status.
This memo primarily concerns itself with our response to such
independent inquiries.
-RETYPED FROM THE ORIGINAL-
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-2- 9935.0
A. EPA's Role In The Acquisition of Interim Status
When Congress specified in Section 3005 of RCRA that all
hazardous waste management facilities must obtain a permit, it
recognized that EPA would not be able to issue permits to all
hazardous waste management facilities before the Subtitle C
program became effective. Accordingly, Congress provided in
Section 3005(e) that a facility meeting certain conditions would
be treated as having been issued a permit until final
administrative action is taken on its permit application. This
statutorily conferred temporary authorization to operate —
commonly referred to as "interim status" — is conditioned on a
facility's meeting the following three requirements:
1. The facility must have been in existence on November 19,
1980.
2. The facility must have complied with the Section 3010(a)
notification requirements.
3. The facility must have filed an application for a
permit.
An essential feature of "interim status" (and the source of
most of the confusion within the Agency) is that, unlike a
permit, it is not granted or conferred by EPA. Rather, it is
conferred directly by statute. Any facility meeting the above
three statutory requirements qualifies for interim status. The
only exception is where it can be shown that final administrative
disposition of an application has not been made because the
applicant has failed to provide necessary information. See
Section 3005(e).
This is not to say that EPA plays no part whatsoever in the
acquisition of interim status by hazardous waste management
facilities. Our role has, however, largely been confined to
interpreting the above statutory requirements and counseling
facilities on whether those requirements have been met. In this
respect, we have performed two important functions. • First, we
have published regulations which clarify the requirements of
Section 3005(e) — i.e., which define what it means to be a
facility "in existence" and explain what is required to be
included in the permit application. See, 40 CFR §§122.3, 122.22,
122.23(a), 45 Fed. Reg. 33421, 33433-33434 (May 19, 1980) as
amended in 45 Fed. Reg. 76630-76636 (November 19, 1980) and 46
Fed. Reg. 2344-2348 (January 9, 1981). Second, as the Agency
vested with the administration of the RCRA program, we have been
called upon to apprise hazardous waste management facilities what
the various prerequisites to interim status are, how they can be
met, and (to some extent at least) whether particular facilities
have met those prerequisites.
The last function poses the most potential problems. An EPA
pronouncement that a facility has met the statutory prerequisites
-RETYPED FROM THE ORIGINAL-
-------
-3- 9935.0
for interim status is in essence a statement of opinion which
reflects our decision not to take enforcement action against the
facility. Such a pronouncement does not ultimately dispose of
the issue of whether the facility has interim status. Nor does
it preclude a private citizen from forcing a judicial resolution
of the issue under the RCRA citizen suit provision, Section
7002(a)(1). Such a pronouncement might, however, estop us from
subsequently pursuing an enforcement action against the facility
for operating without interim status, if the pronouncement is not
properly qualified. Similarly, such a pronouncement, if not
properly phrased, may incorrectly convey the impression that we
are granting interim status to the facility.
B. Recommendations
In accordance with the above, we recommend that you observe
the following when giving an opinion on whether a facility has
interim status:
1. Avoid conveying the impression that EPA grants interim
status. Instead, make it clear that interim status is conferred
directly by statute upon compliance with the three statutory
prerequisites (as construed by our regulations).
2. When providing our opinion, always make it clear that we
are providing just that — an opinion — and not some finally
binding determination of interim status.
3. Remember that the opinion could conceivably limit our
enforcement discretion. Consequently, to the extent our opinion
is based on the facility's own characterization of the facts,
make it clear that this is the case. Also, to the extent the
facility's status is not clear but requires some interpretation
of our regulations, consult with headquarters and the Regional
Counsel's office to ensure that your interpretation is consistent
with the Agency's "official" interpretation. Until further
notice, the headquarters contact person for all such questions of
interpretation is John Skinner, Director, State Programs and
Resource Recovery Division, Office of Solid Waste, (FTS) 755-
9107. John will automatically coordinate the response to all
such questions with the Office of Enforcement and the Office of
General Counsel to ensure that the response is in keeping with
the thinking of those two offices. To facilitate their job, the
Office of Enforcement requests that copies of any written
inquiries be forwarded, as a matter of course, to the Legal
Director, Office of Hazardous Waste Enforcement (EN-335)
(Headquarters).
-RETYPED FROM THE ORIGINAL-
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WASHINGTON, D.C. 20460
31 J98I
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: RCRA, Section 3005(e); Continued Operation of Hazardous
Waste Facilities by Owners or Operators Who Have Failed
to Achieve Interim Status
TO: Enforcement Division Directors
Regions I to X
FROM: Douglas MacMillan, Director
Office of Waste Programs Enfrcement (WH-527M)
A November 19, 1980, Federal Register notice (45 FR 76630)
solicited comment on enforcement and regulatory policies which
the Agency was considering to deal with facilities which miss
the notice and application filing deadlines for interim status
pursuant to RCRA, Section 3005(e). Several comments were received
from the public and from Regional personnel regarding these
policies. The comments revealed some confusion regarding the
requirements for achieving interim status under the Act.
Accordingly, this memorandum provides a discussion of the
statutory and regulatory prerequisites for achieving interim
status, a discussion of the authority of the Agency to allow the
continued operation of hazardous waste facilities by owners or
operators who have failed to achieve interim status, and guidance
regarding the exercise of that authority.
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A. Conditions for Achieving Interim Status
When Congress specified in Section 3005 of RCRA that all
treaters, storers, and disposers of hazardous waste must obtain
a permit, it recognized that EPA would not be able to issue
permits to all such persons before the Subtitle C program became
effective. Consequently, Congress provided in Section 3005(e)
that a facility owner or operator meeting certain conditions would
be treated as having been issued a permit until final administra-
tive action is taken on the facility's permit application. This
statutorily conferred temporary authorization to operate is
commonly referred to as "interim status* - the title of the
subsection by which it was created. Section 3005(e) sets forth
requirements for qualifying for interim status. EPA elaborated on
those requirements in the Consolidated Permit Regulations, 40 CFR
122.22 and 122.23, as amended on November 19, 1980. Read
together, these provisions provide that a person who:
(1) owns or operates a facility which is required to
have a permit under Section 3005 and which was in existence on
November 19, 1980;
(2) has complied with the requirements of Section
3010(a) of RCRA, regarding notification of hazardous waste
activity; and
(3) has complied with the requirements of 40 CFR
122.22(a) and (c), governing submission of Part A applications
shall be treated as having been issued a hazardous waste facility
permit until such time as final administrative disposition of the
facility's permit application is made.
An essential feature of "interim status" (and the source of
confusion within both the regulated community and the Agency) is
that, unlike a permit, it is not granted or conferred by EPA.*
Rather, it is conferred directly by statute. Any person meeting
the above three statutory requirements automatically qualifies for
interim status. The only exception is where it can be shown that
final disposition of an application has not been made because
*EPA representatives, however, have upon request
apprised hazardous waste management facilities what the various
prerequisites to interim status are and how they can be met,
and in certain situations, have ventured opinions as to whether
particular facilities appear to have met those prerequisites. An
EPA opinion that a facility appears to have met the statutory pre-
requisites for interim status (which should in no way be confused
with a "grant" of interim status) does not ultimately dispose of
the issue of whether a facility has interim status. Nor does an
EPA opinion preclude a private citizen from forcing a judicial
(footnote continued on next page)
- 2 -
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the applicant has failed to provide necessary information.
(See, Section 3005(e).) In addition, the failure of an owner
or operator to furnish a requested Part B application on time/
or to furnish in full the information required by the Part B
application, is grounds for termination of interim status.
(40 CFR 122.22(a)(3).)
The Agency has provided guidance regarding each of these
three prerequisites for achieving interim status, as follows.
1. Requirement that the Facility Be in Existence
on November 19, 1980
The first statutory prerequisite for obtaining interim status
is that the owner's or operator's facility be "in existence on
November 19, 1980." (Section 3005(e).) Interpretation of this
requirement can be found at 45 FR 33068-69 and 33323-24 (May 19,
1980), 45 FR 76633-34 (November 19, 1980), and 46 FR 2344-48
(January 9, 1981), attached hereto.
2. Requirement that the Owner or Operator
Comply with Section 3010(a)
Section 3010(a) of RCRA requires an owner or operator of a
facility for the treatment, storage or disposal of a hazardous
waste identified or listed in regulations promulgated under
Section 3001 not only to file a notification, but to file the
notification within ninety days. For example, a person who was
required to notify as a result of the publication of EPA's May 19,
1980, regulations and did not file a notification by August 18,
1980, has not "complied with the requirements of Section 3010(a)"
and has not achieved interim status. (Section 3005(e); 40 CFR
122.23(a)(1).) Further discussion is provided at 45 FR 76631-33
(November 19, 1980), attached.
3. Requirement that the Owner or Operator
File an Application Under Section 3005
The final statutory condition for achieving interim status
is that the owner or operator of a facility have "filed an
application under . . . section [3005]". EPA's regulations
implementing Section 3005 condition eligibility for interim
status on a facility's having "complied with the requirements of
Sl22.22(a) . . . governing submissions of Part A applications."
(See, 40 CFR 122.23(a)(2).)
resolution of the issue under the RCRA citizen suit provision,
Section 7002(a)(l). If not carefully drafted, such an opinion
might, however, complicate future enforcement actions, based on
subsequently obtained information, brought against the facility
for operating without a permit or interim status. Recommendations
regarding such opinions have consequently been set forth in a
memorandum (attached) to Headquarters and Regional RCRA
personnel.
- 3 -
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Section 40 CFR 122.22(a) formerly required that all owners
and operators of existing hazardous waste treatment, storage, or
disposal facilities submit Part A of their permit application by
November 19, 1980. The section was amended on November 19, 1980,
to redefine the deadline for filing Part A applications. 40 CFR
122.22(a)(l) now provides:
•Owners and operators of existing hazardous waste
management facilities must submit Part A of their permit
application to the Regional Administrator no later than
(i) six months after the date of publication of
regulations which first require them to comply with the
standards set forth in 40 CFR Parts 264 or 265, or
(ii) thirty days after the date they first become
subject to the standards set forth in 40 CFR Parts 264
or 265, whichever first occurs."
Accordingly, a facility at which a solid waste was handled prior
to November 19, 1980, is eligible for interim status if its owner
or operator files a Section 3010 notification within ninety days
(if so required) and a Part A permit application within six months
after EPA promulgates regulations designating such solid waste
as a hazardous waste.
Further, a facility which handled hazardous waste prior to
November 19, 1980, but was not required to apply for a permit
because of a. regulatory exemption, may qualify for interim status
if its owner or operator files a Part A permit application within
30 days after losing its exemption. (e.g., a generator who
produced hazardous waste prior to November 19, 1980, who after
November 19, 1980, accumulates for the first time hazardous waste
on-site for longer than 90 days.) As noted in the Federal Regis-
ter -notice pertaining to the amendment, some of the facilities
which will qualify for interim status by virtue of 40 CFR 122.22
(a)(l)(ii) technically may be operating without a permit until
they submit their permit application. (45 FR 76633, November 19,
1980, attached.) Consequently, these handlers have been given
notice that "EPA will not initiate any enforcement action against
them ... if they notify their EPA Regional Office immediately
and file an application within the thirty-day period." Id.
In addition, the Agency may by compliance order issued under
Section 3008 of RCRA extend the date by which the owner or
operator of an existing hazardous waste management facility may
submit Part A of its permit application. (40 CFR 122.22(a)(3).)
Guidance regarding interim status and the owner's or
operator's obligation to file a Section 3010 notification and a
timely Part A application is found at 45 FR 76633 (November 19,
1980), and 45 FR 33321-24 and 33543 (May 19, 1980), attached.
Further guidance regarding the exercise of a Region's
discretionary authority to extend the date for submitting a Part A
permit application is provided in Section 0 of this memorandum.
- 4 -
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B. Section 3005(e) and Enforcement Discretion
Subtitle C provides that, upon the effective date of the
regulations identifying and listing hazardous wastes, "the
treatment, storage/ or disposal of any such hazardous waste is
frohibited except in accordance with such a permit." (Section
005(a) (emphasis added).) Consequently, any person treating,
storing or disposing of hazardous waste without a permit or
without having achieved interim status may be ordered by the
Agency to cease that operation (Section 3008(a)), may be subject
to civil penalties (Section 3008(c,g)), and may be subject to
fine and imprisonment (Section 3008(d)).
Congress* intent in enacting the sanctions in Subtitle C was
to "permit a broad variety of mechanisms so as to stop the illegal
disposal of hazardous wastes" (H.R. Rep. No. 1491, 94th Cong., 2d
Sess., at 31). In most cases in which a Region determines that a
person has treated, stored or disposed of hazardous waste in
violation of Section 3005(a), prompt administrative or judicial
action should be brought seeking cessation of the violation and,
if determined to be appropriate, assessment of a penalty.
The Agency recognizes that the literal construction of
Section 3005(e) will have the effect of preventing owners or
operators of certain well-managed facilities from qualifying for
interim status. In order to provide relief where appropriate,
Congress has provided that enforcement under Subtitle C is
discretionary. (Section 3008(a)(!).) Cf., Commonwealth of
Kentucky ex rel. Hancock v. Ruckelshaus, 497 F.2d 1172 (6th Cir.
1974), aff'd, 426 U.S. 167 (1976); Corn Refiners Association, Inc.
v. Costle, 594 F.2d 1223, 1225, 1226 (8th Cir. 1979); Weyerhauser
Co. v. Costle, 590 F.2d 1011, 1056-58 (D.C. Cir. 1978); United
States v. Olin Corp., 465 P. Supp. 1120, 1136 (W.D.N.Y. 1979);
Committee for Consideration of Jones Falls Sewage System v. Train,
387 F. Supp. 526, 529-30 (D. Md. 1975).
Although EPA cannot consider facility owners or operators
who have failed to satisfy the statutory requirements of Section
3005(e) as having achieved interim status, the Agency may exercise
its enforcement discretion to allow such facilities to continue
operating where the continued operation would be in the public
interest. Cf., State Water Control Board v. Train*, 559 F.2d 921,
927 (4th Cir. 1977); Sierra Club v. Train, 557 F77d 485 (5th Cir.
1977); New Mexico Citizens for Clean Air and Water v. Train, 6 ERC
2061, 2065 (D.N.M. 1974). Policies referenced in the November 19,
1980, Federal Register notice (45 FR 76630-36) have been developed
to provide relief in these situations.
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C. Allowing the Continued Operation of a Facility by an Owner
or Operator Who Has Failed to Achieve Interim Status
Although the enforcement authority of Section 3008 vests
discretion in the Agency/ courts have held that "the exercise
of prosecutorial discretion, like the exercise of executive
discretion generally, is subject to statutory and constitutional
limits enforceable through judicial review." Nader v. Saxbe, 497
P.2d 676, 679-90 (D.C. Cir. 1974).** See, in particular, "Review-
ability of Prosecutorial Discretion: Failure to Prosecute,"
75 Colurn. L. Rev. 130 (1975). If the Region determines, in the
exercise of its enforcement discretion, to allow the continued
operation of a facility by an owner or operator who has failed
to achieve interim status, it must do so rationally and in good
faith. In addition, the Agency may be required to state the
factors upon which it relied in deciding not to bring a particular
enforcement action. See discussions in Bachowski v. Brennan, 502
F.2d 79 (3rd Cir. 1974), rev'd in part, Dunlop v. Bachowski, 421
U.S. 560 (1975); Environmental Defense Fund v. Hardin, 428 F.2d
1093, 1099-1100 (D.C. Cir. 1970). Consequently, each Region's
exercise of enforcement discretion must be based upon evidence
that will permit the reasonableness of its decision to be later
demonstrated.
In the context of an owner's or operator's failure to
achieve interim status, the exercise of enforcement discretion
should require consideration of such factors as:
o the harm (or benefit) to the environment that will
result from the facility's continued operation;
o the circumstances surrounding the failure of the
owner or operator to meet the requirements of
Section 3005(e);
o the compliance history, if any, of the owner or
operator including his recalcitrance or good faith
efforts to comply (both with regard to the subject
facility and any other facility for which the
owner or operator is responsible);
** There is, however, authority supporting the position
that a court may not review EPA's decision not to commence an
action under §3008, either because such a decision is committed to
agency discretion by law (cf_., Commonwealth of Kentucky, supra) or
because there exists an adequate remedy at law under the Act's
citizen suit provision, Section 7002 (c_f., Hall v. Equal
Employment Opportunity Comm., 456 F. Supp. 693 (N.D. Calif.
1978)). EPA will likely rely upon such authority in the event
that a decision by the Agency to decline to bring an enforcment
action is challenged.
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o the availability of enforcement resources;
o the importance of the violation in comparison
with other violations; and/
o the extent to which the owner or operator should
have known of RCRA's regulatory requirements
(presumably, a commercial off-site hazardous waste
management facility should be held to a somewhat
higher standard of knowledge of the regulations
than should a generator with a relatively small
on-site facility that is operated in support of
and incident to the generator's primary line of
business); and,
o fairness and equity.
If there is insufficient information in the Region's files
to make a decision based upon the above criteria, the Region may
instruct the owner or operator to submit relevant information
within a reasonably prompt period of time. In many instances,
•an EPA inspection will be necessary to verify the information
submitted or to gather new information.
The Regional Office should keep a careful record of all
actions allowing/ or disallowing, the continued operation of a
facility by an owner or operator who has failed to achieve interim
status. Decisions to allow such continued operation should be
accompanied by a statement, as detailed as practicable, of the
reasons supporting the action.
D. Providing Notice to the Owner or Operator/ and the Public/ of
the Exercise of Enforcement Discretion
If the Region determines to allow the continued operation of
a facility whose owner or operator has failed to achieve interim
status, the Region may have no legal obligation to formally advise
the owner or operator of that decision. In virtually all
instances/ of course/ it will be appropriate to provide notice
in order/ for example, to apprise the public of the Region's
determination/ inform transporters or generators using the
facility of the exercise of enforcement discretion/ and most
importantly/ to aid the owner/operator by advising him/her that
the operation of the facility will be allowed to continue despite
the failure to meet the requirements for achieving'interim status.
1. Facilities Failing to Provide Timely Notification under
Section 3010.
Compliance orders issued under Section 3008 of RCRA (with
or without a civil penalty assessment) may be used to provide
notice of the Region's decision to allow the continued operation
of a facility provided that that notice is part of a broader set
of compliance requirements. (Neither a compliance order nor an
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interim status compliance letter (see below) serve to "grant"
interim status to a facility which failed to timely notify. Such
a facility can never actually have interim status. (See pages
2-3).) A compliance order obviously must be used if an
administrative penalty is being assessed. (Section 3008(c).)
Penalties of at least $100 for each month the notification was
overdue would ordinarily be appropriate. In most instances where
a notification was more than six months late, penalties should be
assessed. If the violator is an off-site commercial hazardous
waste management facility/ higher penalties and a shorter grace
period should be considered. A compliance order also has the
advantage of clearly requiring an owner or operator to comply with
interim status standards (40 CFR Part 265), thereby making it
difficult for the owner or operator to argue that such standards
do not apply to him and also preventing him from attaining any
unfair advantage over competitors who did comply with the
requirements for achieving interim status. (See, 40 CFR
265.l(b).) A compliance order also provides the alleged violator
with a clear remedy if the person believes that he is not in
violation of the Act. (See 40 CFR 22.15.)
In addition, a compliance order may provide for more certain
imposition of penalties in the event that there is a subsequent
violation of RCRA. (See, Section 3008(a)(3).) An administrative
consent order may also provide an admission by the owner or
operator regarding the applicability of, for example, the interim
status standards, and the reasonableness of other obligations
imposed by the, order.
A form complaint prepared pursuant to the Consolidated
Rules of Practice, 40 CFR Part 22, is appended as Attachment 2.
s'
The Regions may also issue Interim Status Compliance Letters
(ISCL's) to provide notice to owners and operators of qualifying
facilities that they will not be prosecuted for operating without
having achieved interim status, providing they comply with the
conditions set forth in the ISCL. An ISCL should be issued only
upon request of the facility. Ordinarily, firms such as off-site
treatment, storage or disposal facilities whose business is
solely or primarily hazardous waste management should receive
compliance orders rather than ISCL's. In no event should an ISCL
be issued to a facility which notifies later than one year after
the required date, or after September 18, 1981, which ever occurs
later.
An ISCL should contain the following specific elements:'
a. Reference to the particular facility (by name and
location) and the owner or operator with regard to which the
action is being taken.
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b. A statement that the ISCL is an exercise of
enforcement discretion.
c. A statement that the enforcement authority will
exercise its discretion and not seek to cease the treatment,
storage, or disposal of hazardous waste by the owner or operator
at the referenced facility, on the condition that:
(1) the owner and operator comply fully with the
terms of the ISCL,
(2) the owner and operator comply fully with the
Interim Status Standards, 40 CFR Part 265, and applicable
Consolidated Permit Regulations, 40 CFR Parts 122 and 124,
within time periods set forth in the ISCL,
(3) circumstances do not occur which would warrant
modification of the Agency's exercise of enforcement discretion,
and
(4) circumstances do not occur which would warrant
an action under Section 7003 of RCRA.
d. A statement that the ISCL does not preclude the
possibility of citizen suits under Section 7002 of RCRA. Since
an ISCL should only be issued after a careful determination that
such an exercise of enforcement discretion is in the public
interest, few such actions by third parties are anticipated.
It is nevertheless important to everyone concerned to be aware
that the possibility of such an action exists.
e. A statement that the exercise of enforcement
discretion expressed in the ISCL shall terminate at the time that
final administrative disposition of the permit application for
the subject facility is made.
f. The ISCL should be signed by the appropriate
Regional supervisor of hazardous waste enforcement activities to
underscore the fact that it is an exercise of enforcement
discretion.
g. Where appropriate, an ISCL may contain provisions
shielding generators and transporters using the facility from
Federal prosecution for sending wastes to an unpermitted
facility.
A model ISCL is appended as Attachment 1. It is emphasized
that it is only a sample and each ISCL must be carefully drafted,
within the guidelines set forth above, to cover the particular
situation at issue.
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Written agreement of the owner or operator that the terms of
the ISCL (including the schedule for filing, and compliance with
the interim status standards and. consolidated permit regulations)
are reasonable and achievable, and that the owner or operator
will comply with them should be obtained. (See Attachment 1)
2. Facilities Failing to File Part A of their Permit
Application on Time.
A new provision of the Consolidated Permit Regulations was
promulgated on November 19, 1980, and provides:
"The Administrator may by compliance order issued
under Section 3008 of RCRA extend the date by which
the owner and operator of an existing hazardous waste
management facility must submit Part A of their
permit application." (40 CFR 122.22(a)(3).)
A purpose of the amendment is to allow a facility_Jthat
inadvertently missed the filing deadlines set forth in 40 CFR
122.23(a) to nevertheless obtain interim status. (45 FR 76633,
November 19, 1980.)
The November 19 amendment recognizes the differences in
effect in failing to comply with 3010(a) and failing to file
a timely Part A. Section 3010(a) sets a requirement to notify
within a set period for a specified class of facilities, and
this is a condition for achieving interim status. Failure to
meet that deadline, if required to do so, results in failure
to achieve interim status. However, Section 3005(e)(3) only
requires submission of a permit application without specifying
a deadline. EPA, through its regulations, originally set a
deadline of November 19 for submission of Part A's. The
regulatory amendment reflects the Agency's recognition that,
unlike the deadline for notification, the deadline for Part A's
is not statutorily required and that EPA may, therefore,
administratively adjust that deadline to allow facilities
submitting late Part A's to achieve interim status.
Issuance of an order extending the Part A permit application
deadline requires consideration of the same factors set forth in
Section C of this memorandum. As previously noted,, the Region
should consider the harm or benefit to the environment that will
result from the facility's continued operation, the circumstances
surrounding the failure of the owner or operator to meet the
Part A filing deadline, the owner's or operator's compliance
history, the availability of enforcement resources, the im-
portance of the violation in comparison with other violations,
the knowledge of the statutory and regulatory requirements which
that type of facility had or should have had, and other equitable
considerations.
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As §122.22(a)(3) deals specifically with this situation,
compliance orders rather than ISCL's should be used to allow
such a facility to continue in operation. If a late (after
November 19, 1980, or other applicable date) Part A application
has already been submitted, the order should include a statement
that the application has been accepted as if timely filed,
conditioned upon compliance with the terms of the order. If no
Part A has been received, a deadline for its submission should be
specified. (Ordinarily, this should not be more than thirty days
from the date of issuance of the order.) (See Attachment 2,
Page 2.3.) A decision as to whether to assess a penalty should
be based on the same criteria as set forth for late notifiers
on pages 6 and 7.
3. Failure to Meet the Definition of "In Existence."
The effect of the "in existence" requirement, which was
previously discussed, is to assure that "new" facilities are
constructed only after they have obtained a permit. As this
provision is of central importance to the Act, it is anticipated
that few if any facilities not "in existence" on November 19,
1980 will be allowed to begin or continue operations without
having been issued the appropriate EPA or State permit. If a
Region feels that such a facility should be allowed to operate,
all appropriate headquarters offices should be contacted in
advance to discuss the appropriate mechanism to allow such
operation.
If you have any questions regarding this guidance, you
should contact Jim Bunting, Acting Director, Legal Division,
Office of Waste Programs Enforcement (WH-527M) FTS-382-3050.
cc: Directors, Air and Hazardous Materials Divisions,
Regions I and III - X
Director, Water Division, Region II
-11-
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Model Interim Status Compliance Letter
[Name of Owner or Operator]
[Address]
Re: [Name of owner or operator];
[Name and location of facility];
Section 3005, Resource Conservation and Recovery
Act
Dear [Name]:
Section 3005 of the Resource Conservation and Recovery Act
provides that no hazardous waste identified by the Environmental
Protection Agency pursuant to Section 3001 of the Act may be
treated, stored/ or disposed of except in accordance with the
terms of a permit. Regulations identifying certain hazardous
wastes were promulgated by the Environmental Protection Agency
on May 19, 1980, and became effective on November 19, 1980.
•
Section 3005(e) of the Act provides that a person meeting
certain conditions shall be treated as having been issued a permit
until final administrative action is taken on its permit appli-
cation. A person meeting the requirements of Section 3005(e)
is commonly referred to as having "interim status*.
The Environmental Protection Agency has determined that, from
[date] to [date], [name of owner or.-operator] [owned or operated]
a facility for the [treatment, storage, or disposal] of hazardous
waste at [location]. The Environmental.Protection Agency has
further determined that, from [date] to-, [date], [name of owner or
operator] [treated, stored, or disposed of] substances, including
and , which have been identified'.or listed as
hazardous waste under Section 3001, without a permit or without
having interim status, in violation of Section 3005(a) of the
Act.
ATTACHMENT 1
-------
[Name of owner or operator] has not achieved interim status
pursuant to Section 3005(e) during this period because [name of
owner or operator] failed to comply with the requirements of
Section 3010(a) of the Act, regarding notification of hazardous
waste activity.
Notwithstanding the violation of Section 3005(a) by [name of
owner or operator]/ the Environmental Protection Agency, Region 0,
in the exercise of its enforcement discretion, will not take
action against [name of owner of operator] under Section 3008 of
the Act with respect to [name of owner or operator]'s failure to
obtain a permit or otherwise to have interim status for this
facility , on the condition that:
1. [Name of owner or operator! ceases, within ________
days of the receipt of this letter, all treatment, storage, or
disposal of any hazardous waste, except such [treatment, storage,
or disposal] at the facility as shall be in complete compliance
with the Standards Applicable to Owners and Operators of Hazardous
Waste Treatment, Storage, and Disposal Facilities, 40 CFR Part
265; and . . . • " '
2. [Name of owner or operator] complies with all
applicable requirements of the Consolidated Permit Regulations,
40 CFR Part 122, Subparts A and B, and 40 CFR Part 124; and
3. [Other conditions with which continued operation
must comply]; and
provided further that conditions do not arise which warrant an
emergency action under Section 7003 of the Act or which would
otherwise warrant modification of the Agency's exercise of
enforcement discretion.
This Interim Status Compliance Letter does not constitute
a waiver with respect to or imply that.- the Agency will not taJce
appropriate action against [name of owner or operator] for its
failure to fully comply with any relevant statutory, regulatory,
permit and other legal requirements applicable to [name of owner
or operator], except as specifically set forth above.
- 1.2 -
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[Name of owner or operator] should note that this Interim
Status Compliance Letter does not preclude the commencement of an
action pursuant to Section 7002 of the Act by a third person to
enforce the requirements of Section 3005(a) or any other provision
of the Act or its implementing regulations.
This exercise of enforcement discretion shall terminate no
later than the time that final administrative disposition of the
facility's permit application is made.
Copies of this document may be furnished to generators,
transporters or other persons to indicate that hazardous wastes
may be lawfully delivered to and accepted at this facility if
done pursuant to the terms and conditions set forth in this
document and other applicable laws and regulations.
Very truly yours,
[Name]
Director, Enforcement Division
[Name of owner or operator] hereby agrees that the terms of.
the above Interim Status Compliance Letter (including the
schedule for complying with the Standards Applicable to Owners and
Operators of Hazardous Waste Treatment, Storage, and Disposal
Facilities, 40 CFR Part 265, and the Consolidated Permit Regula-
tions, 40 CFR Parts 122 and 124) are reasonable and achievable,
and that [name of owner or operator] will comply with them.
[Name .of Owner or Operator]
By:
- 1.3 -
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IN THE MATTER OF
[NAME OF VIOLATOR]
[EPA ID No. ]
Resource Conservation and
Recovery Act Proceedings
Section 3008(a)(1)
42 a.S.C. § 6928(a)(1)
Docket No. 1-81-1(r)RMR
COMPLAINT
TO: REGIONAL HEARING CLERK
(Address]
[NAME OF VIOLATOR]
[Address of Violator]
COMPLAINT
This Complaint is filed pursuant to Section 3008(a)(1) of
the Solid Waste Disposal Act, as amended by the Resource Conser-
vation and Recovery Act/ 42 U.S.C. § 6928(a)(1), and the
Environmental Protection Agency's Consolidated Rules of Practice
Governing the Administrative Assessment of Civil Penalties and
the Revocation or Suspension of Permits, 40 CFR Part 22. The
Complainant is the United States Environmental Protection Agency
(hereinafter EPA). The Respondent is [name of violator].
ATTACHMENT 2
-------
DETERMINATION OF VIOLATION
1. Section 3005(a) of Subtitle C of the Act provides, in
part, that
"the Administrator [of the Environmental Protection
Agency] shall promulgate regulations requiring each
person owning or operating a facility for the treatment,
storage, or disposal of hazardous waste identified or
listed under this subtitle to have a permit issued
pursuant to this section. [After the effective da€e
of the regulations], the treatment, storage, or dis-
posal of any such hazardous waste is prohibited except
in accordance with such a permit."
2. Regulations requiring each person owning or operating
a facility for the treatment, storage, or disposal of hazardous
waste to have a permit issued pursuant to Section 3005 were
Promulgated by the Administrator on May 19, 1980, and are codified
at 40 CFR Parts 122 and 124. The effective date of these regula-
tions is November 19, 1980.
3. Section 3005(e) of the Act provides that an owner or
operator of a facility shall be treated as having been- issued a
permit pending final administrative disposition of his/her permit
application provided that: (1) the facility was in existence on
November 19, 1981; (2) the requirements of Section 3010(a) of the
Act concerning notification of hazardous waste activity have been
complied with, and (3) application for a permit has been made.
This statutory authority to operate is known as interim status.
EPA regulations implementing these provisions are found at 40 CFR
Part 122.
4. From [date] to [date], [name of violator] [owned or
operated] a facility (hereinafter, "the facility") for the
[treatment, storage, or disposal] of hazardous waste at
[location]. ' -
5. From [date] to [date], [name of violator] [treated,
stored, or disposed of] substances, including
and , which have been identified or listed as
hazardous waste under Section 3001 of the Act, without a permit
and without having achieved interim status/ in violation of
Section 3005(a) of the Act. Interim status was not achieved
because [name of violator] failed to submit [notification by
(date) as required by Section 3010(a) of the Act] - or - [Part A
of the application for a permit by (date) as required by 40 CFR
122.22].
6. Notwithstanding the violation of the requirements of
Section 3005(a) of the Act by [name of violator] the continued
operation of the facility
(a) for a limited period of time, and
- 2.2 -
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(b) if in complete compliance with the Standards
Applicable to Owners and Operators of Hazardous Waste Treatment/
Storage, and Disposal Facilities, 40 CFR Part 265, and
(c) if in complete compliance with the conditions set
forth in this Complaint,
is determined to be in the public interest because [a concise
statement pursuant to 40 CFR 22.14, of the factual basis for
and the reasoning behind the decision to allow the continued
operation of the facility].
t
(For Part A's submitted late) If these conditions
are complied with, the Part A permit application submitted by
[name of violator] on [date] shall, pursuant to 40 CFR
122.22(a)(3), be accepted as if timely filed.
TERMS FOR COMPLIANCE
FIRST, A. (For only Part A's not yet submitted)[Name
of violator] shall, within days of receipt of this
Complaint, submit Part A of a permit application with [name],
Regional Administrator, Region I, United States. Environmental
Protection Agency as required by 40 CFR Part 122,
(For all violations)
B. [Name of violator] shall, within days
of receipt of this Complaint, cease all treatment, storage, or
disposal of any hazardous waste except such [treatment, storage,.
or disposal] at the facility as shall be in complete compliance
with the Standards Applicable to Owners and Operators of Hazardous
Waste Treatment, Storage, and Disposal Facilities, 40 CFR Part
265; and
C. [Name of violator] shall fully comply with the
Consolidated Permit Regulations, 40 CFR Parts 122 and 124, as if
[name of violator] had filed timely "Notification of Hazardous
Waste Activity" pursuant to Section 3010(a) and submitted Part A
of a permit application as required by those regulations; and
• '"•.-»
D. [Other conditions with which continued operation
must comply];
OR, at the option of [name of violator],
SECOND, On or before [date], [name of violator] shall cease
treating, storing or disposing of any hazardous waste subject to
Subtitle C of the Act.
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In view of the above, pursuant to Section 3008(c) of the
Resource Conservation and Recovery Act/ 42 U.S.C. Section 6928(c),
the United States Environmental Protection Agency assesses a
penalty of [amount] dollars against respondent. [State basis
for amount assessed.] Payment may be made by check payable to
the United States of America and remitted to [name]/ [address].
PILING AN ANSWER
If [name of violator] (1) contests the factual claims made in
this Complaint/ (2) contends that the amount of the penalty or the
terms for compliance proposed in the Complaint is inappropriate/
or (3) contends that it is entitled to judgment as a matter of
law/ [name of violator] must file a written answer within thirty
days as set forth in Section 22.15. [Same of violator] may also
request in its answer that a public hearing be held. In the event
that [name of violator] does not file an answer/ a default
judgment may be entered pursuant to 40 CFR 22.17.
' * INFORMAL CONFERENCE
The Environmental Protection Agency encourages all parties
against whom a complaint has been issued to explore the possi-
bility of resolving the problem at an informal conference.
[Name of violator] may confer with [name]/ Attorney/ Enforcement
Division/ at [telephone]/ concerning settlement. Settlement
conferences shall not affect the obligation of [name of violator!
to file a timely answer under 40 CFR 22.15
[name]
Director/ Enforcement Division
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MEMORANDUM Oct. 4, 1982
SUBJECT: Applicability of Interim Status Standards, 40 C.F.R.
Part 265, to Small Quantity Generators Who Have
Notified and Filed a Part A Permit Application
FROM: Edward A. Kurent
Acting Associate Enforcement Counsel - Waste
TO: Robert Schaefer
Regional Counsel, Region V
ISSUE
A March 29, 1982, memorandum from your office requested
guidance on the problems created by small quantity generators who
submit "protective" RCRA section 3010 notifications and Part A
permit applications. We appreciate your concern that different
positions may have been taken on this issue by several Regions.
This memorandum will provide guidance on the following question:
Do the special requirements for hazardous waste generated by
small quantity generators (i.e.. that the waste is not
subject to regulation under 40 C.F.R. Parts 262 - 265, if
the generator complies with the requirements of §261.5(g))
remain in effect if those small quantity generators "file
protectively," i.e.. notify under RCRA section 3010(a), and
submit a Part A permit application under 40 C.F.R.
§122.22(a)?
We conclude that the special requirements remain in effect
and that only the requirements of §261.5 apply to such
generators. For the reasons discussed below, such generators
never achieved interim status. Accordingly, small quantity
generators who have "filed protectively" should be sent written
notification explaining EPA's interpretation of the law as
applied to them.
DISCUSSION
The owner or operator of a hazardous waste management
facility1' who meets three conditions achieves interim status
under RCRA section 3005(e), and implementing regulations. Such
owner or operator is treated as having been issued a permit until
EPA makes final administrative disposition of his permit
-'"Facility" is defined in §260.10 and means "all contiguous
land and structures, other appurtenances, and improvements on the
land, used for treating, storing or disposing of hazardous waste.
A facility may consist of several treatment, storage, or disposal
operational units (e.q., one or more landfills, surface
impoundments or combinations of them)." This definition of
"facility" clearly would include any areas used by a generator
for the treatment, storage, or disposal of hazardous waste.
-RETYPED FROM THE ORIGINAL
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application. The three conditions for achieving interim status
are:
a. the facility was in existence on November 19, 1980, and
is required to have a RCRA permit;
b. the owner or operator complied with the preliminary
notification requirements of RCRA section 3010; and
c. the owner or operator submitted a Part A permit
application under 40 C.F.R. §122.22(a).
The owner or operator of a facility which qualifies for interim
status must comply with the interim status standards of 40 C.F.R.
Part 265.
Under 40 C.F.R. §261.5, a conditional exclusion from the
requirements of Parts 262 - 265 was granted to generators of 1000
kg/month or less of hazardous waste. Some of these small
quantity generators, otherwise conditionally excluded from
interim status requirements, have "filed protectively," i.e..
notified under RCRA section 3010 and submitted a Part A permit
application under 40 C.F.R. §122.22(a), in an attempt to secure
additional rights for themselves in case they sometime in the
future exceed the terms of their exclusion.
This "protective filing" does not create additional rights
for the generators involved because the "protective filing" does
not cause the generator's facility to achieve interim status when
the generator is not required to have a RCRA permit. (See the
first condition that must be met for the owner or operator of a
facility to achieve interim status.) Therefore, Region V should
advise those small quantity generators who have notified or
submitted Part A permit applications, or both, that EPA does not
consider them to have achieved interim status because they are
not owners or operators of facilities required to have a RCRA
permit. Region V should also advise small quantity generators
that the Region will retain the notification because the EPA I.D.
number is often necessary for proper disposal of small quantities
of hazardous wastes. (Even facilities which are excluded from
interim status have found that disposal facilities require them
to have an EPA I.D. number.) In addition, Region V should advise
small quantity generators that their Part A permit applications
are regarded by EPA as having no effect, but that when a small
quantity generator has a change in operation which causes loss of
his exclusion he should submit a Part A within 30 days after the
date he first becomes subject to the 262-265 standards (i.e.. he
loses the exclusion).
CONCLUSION
A "protective filing" by a small quantity generator does not
cause that generator's facility to achieve interim status. Thus
the small quantity generator is not subject to interim status
standards.
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cc: Regional Counsels, Regions I-IV, VI-X
Director, Office of Solid Waste
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OSWER Directive No. 9930.0-1
October 16, 1985
MEMORANDUM
SUBJECT: Loss of Interim Status Enforcement Strategy
FROM: Gene A. Lucero, Director
Office of Waste Programs Enforcement
TO: Waste Management Division Directors, Regions I-X
Regional Counsels, Regions I-X
Attached is the revised strategy for enforcing the Loss of
Interim Status Provision set out in the 1984 amendments to RCRA. It
bears repeating one more time that we must aggressively enforce the
requirements of this provision, if we are to effect the intent of
Congress. Please review this strategy closely.
You will receive information shortly about the two contract
mechanisms that have been established to help you with the additional
workload created by the Section 3007 letters. You may call me, Lloyd
Guerci or Jackie Tenusak (FTS 475-8729) if you have any questions
about the implementation of the strategy or the contracts.
Attachment
cc: Environmental Enforcement Section, DOJ
OECM-Waste
OECM-Criminal Enforcement
NEIC
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Resource Conservation and Recovery Act
Loss of Interim Status Enforcement Strategy
Introduction
The Environmental Protection Agency underscored the significance
of the RCRA loss of interim status provision in the FY 1986 RCRA
Implementation Plan. The Agency also has published a Federal Register
Notice outlining its implementation and enforcement policy, as well as
an interpretative guidance. This guidance supplements those
documents by delineating the loss of interim status enforcement
strategy.
Summary
Section 3005(e)(2) of RCRA requires interim status land disposal
facilities that desire to retain interim status (1) to submit an
operating (Part B) permit application by November 8, 1985 and (2) to
certify compliance with all applicable ground-water monitoring and
financial responsibility requirements by November 8, 1985. While
encouraging valid certification on a facility-wide basis, the Agency
is allowing unit by unit certification. RCRA land disposal units that
do not submit Part B applications and certifications of compliance
(i.e., that lose interim status .V) must immediately cease operation
and comply with applicable closure requirements.
The loss of interim status provision is self implementing and
imposes requirements on owners and operators of land disposal
facilities rather than directly on EPA. Nonetheless the Agency will
aggressively implement and enforce the loss of interim status
provision and related requirements.
There are four major elements of the loss of interim status
enforcement strategy.
First, a communications strategy will advise the public, the
Congress and regulated community of our interpretation of the loss of
interim status provision and our serious intentions to implement and
enforce the provision. Second, inventories of facilities on a unit by
unit basis will be developed. These will identify facilities by unit
that (a) certify compliance and submit a Part B (retain interim
status), (b) fail to certify compliance and/or submit a Part B (lose
interim status) and (c) of those that lose interim status, those that
do not submit closure plans. These inventories will provide an
information base for program and enforcement management in the
aftermath of November 8, 1985. Third, facilities/units with clear
_V Under the Agency's implementation and enforcement policy which
is set forth in the Federal Register, facilities such as non-notifiers
and late notifiers that technically did not have interim status are
subject to the loss of interim status provision. Accordingly, this
strategy generally will refer to facilities that did not satisfy the
provision's requirements as facilities that did not certify or submit
a Part B; as a short hand expression such facilities also will be
referred to as losing interim status.
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violations will be targeted for priority enforcement. This will
include (a) clearly inadequate facilities/units, including facilities
without wells (and without a valid waiver) or without satisfactory
financial responsibility assurances, identified before November 8,
that attempt to certify compliance, (b) facilities/units that do not
certify compliance and/or submit a Part B but continue to operate as
identified during annual inspections or by an informant, and (c)
facilities/units that do not certify compliance and/or submit a Part
B, and fail to submit closure plans. Criminal enforcement actions are
to be developed and referred to the Department of Justice where
justified on the facts; other enforcement authorities will be used to
seek proper closure of facilities/units, including some that
certified. Fourth, during FY 1986 facilities/units that retain
interim status as well as those that submit closure plans will be
subject to evaluations of their ground-water monitoring systems, Part
B applications or closure plans as part of ongoing programmatic
activities. Instances of noncompliance will be addressed through
enforcement actions.
Elements of the Strategy
A. Communications
Each Region has advised facilities with RCRA land disposal units
of the loss of interim status provision. In .addition, in October each
Region is to send a copy of the Federal Register Notice to each such
facility. This transmittal will be part of a single RCRA section 3007
letter that will seek phased responses from each facility on units
that close, submission of closure plans, and optionally, waste
disposition. The letter is discussed below; a model letter is set
forth in Attachment A.
After the Federal Register Notice was signed, Headquarters - OWPE
briefed the Congress and Washington, B.C. external groups about the
loss of interim status provision and of this strategy. Each Region
should adopt a communications plan regarding the loss of interim
status provision. The plan is to be oriented toward widespread
communications and should emphasize the Region's intent to enforce the
provision.
B. Inventories of Facilities (on a Unit by Unit Basis) in Operating
Permit Applicant and in Closure Universes
1. Facilities (by unit) that certify compliance and submit Part
B permit applications (operating permit universe).
The loss of interim status provision requires owner/operators to
submit permit applications and certify compliance with ground-water
monitoring and financial responsibility requirements to retain the
authority to operate^./ and remain in the operating permit applicant
This includes non-notifiers and late notifiers.
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universe. In implementing this provision, the Agency has authorized
owner/operators to certify compliance on a unit by unit basis. It
also has advised owner/operators to send compliance certifications and
permit applications to EPA and, where authorized, the States. We
expect that most certifications will be mailed in early November. The
Regions should implement procedures to check transmittal (post mark)
dates and reject late transmissions.
Following receipt of the certifications of compliance and Part B
applications, the Regions are to develop promptly an inventory of
facilities, on a unit by unit basis, that certify compliance and
submit Part B applications. The inventory should identify each
facility (with RCRA ID number) that certifies compliance and submits a
Part B and, for each such facility, should identify the units that
certified (or the facility as a whole). This inventory of facilities
in the operating permit applicant universe will be utilized by
Regional enforcement and permitting personnel and shared with states.
The inventory will also be submitted to headquarters. The schedule
for developing the post November 8 universe of operating permit
applicant facilities by unit is set forth below. In addition the
Regions are to make a copy of each certification and place it in a
separate certification file.
2. Facilities/units that do not certify compliance and/or
submit Part B permit application (closure universe).
In the event that a land disposal facility does not submit a Part
B application and certification by November 8, 1985, it must cease
operation of its land disposal units. Those units enter the closure
universe by operation of law by that date. The Regions are to develop
a separate inventory of facilities that do not certify compliance
and/or do not submit a Part B application. Generally, this closure
universe may be developed by listing the Regional universe of land
disposal facilities as amended in the summer of 1985 and then
subtracting each facility that certifies all units and submits a Part
B application that addresses all. The remainder are the facilities in
the closure universe. There may be some questions, however, as to
identity of all the RCRA Subtitle C land disposal units at a closing
facility. Moreover, where a facility does certify/submit a Part B for
units identified in those documents, it may be difficult to determine
with confidence whether any RCRA Subtitle C land disposal units are
not within the scope of those submissions.
The potential problem in defining the universe of units subject
to closure results in part from the fact that the loss of interim
status provision does not expressly require submissions regarding
individual units that must close because they lost interim status. To
fill this gap, the RCRA section 3007 letters that the Regions are to
send to facilities in October will require in part an identification
of land disposal units that are not within the scope of a
certification and Part B. A model section 3007 letter, which the
Regions may modify provided that the basic information is obtained, is
set forth as Attachment A. The schedule for mailing and response is
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set forth below. The results will be collated to compile a closure
universe, by facility by unit, which includes the same classes of
information as in the operating permit applicant universe above. This
universe will be provided to permitting and enforcement personnel, as
well as to states and Headquarters. In addition, information in HWDMS
will be updated to reflect the current status of the facilities.
3. Facilities/units that do not certify and/or submit a Part B
permit application, and do not submit closure plans.
As a result of the loss of interim status provision, a large
number of facilities/units must close. Those facilities/units will be
identified in the closure universe noted above. The Regions and
States must assure that a closure plan is submitted for facilities/
units that close. In most instances, authorized states will receive
the closure plans on or shortly after November 23, 1985. As a matter
of national consistency, and to assure that closures, which are a
national priority, begin with the timely submission of a closure plan,
the Regions are to obtain information on closure plan submission as
part of the section 3007 letter to be sent in October. The model
section 3007 letter requires the owner/operator to state when the
closure plan was submitted. .. Regions are to use the responses to the
section 3007 letters to develop an inventory of closing facilities
that do not submit closure plans. This will be used for enforcement
management.
C. Identify Facilities with Clear Violations and Take Priority
Enforcement (Criminal or Closure)
In connection with the loss of interim status provision, there
will be several classes of clear violations that must be given high
enforcement priority by the Regions and States: (A) facilities/units
clearly not in compliance with ground-water monitoring and financial
responsibility requirements that certify, (B) facilities/units that
are required to but do not submit closure plans, and (c)
facilities/units that lose interim status that continue to operate.
In October 1985 the Regions should develop lists of facilities
that should be targeted for enforcement promptly after November 8,
1985 if they certify compliance with ground-water monitoring and
financial responsibility requirements. This includes several classes
of facilities. First, facilities without monitoring wells that lack
valid waivers may not certify. Second, facilities that lack the
requisite financial assurances may not certify. There is no
prosecutorial discretion to allow these facilities to certify or to
allow these facilities (or facilities that do not certify) to continue
to operate under an order or other mechanism. Any order, including
State agency orders, that purports to do so beyond November 8, 1985 is
invalid. Unless there is a legislative change for liability
insurance, land disposal facilities that do not meet financial
responsibility requirements may not certify or operate on and after
November 8, 1985. Enforcement must be directed toward closure and/or
be criminal in nature for this group of facilities. In seeking
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closure, temporary restraining orders and preliminary injunctions
should be considered. Potential criminal actions should be referred
immediately to the Office of Criminal Investigations in the Region.
Facilities where there are substantial questions about whether RCRA
Subtitle C requirements apply may not be good candidates for criminal
action.
In most cases, the facilities that certify compliance and submit
a Part B will have a monitoring well system. These cases remain
subject to the sound evaluation and enforcement discretion of the
Region. In exercising this discretion, the Region should consider,
among other relevant factors, its view of the adequacy of the ground-
water monitoring system, an authorized State's legitimate views, and
any past representations of the adequacy of the system. In the event
that the Region believes, and an authorized State does not
substantially dispute that there is a strong, consistent case on the
inadequacy of the well system, the complaint should seek closure and,
alternatively if that relief is denied, an upgraded system that
satisfies both part 265 and 270 standards. Where the Region and the
State substantially disagree, or other factors lead to the conclusion
that the hearing official or court probably will not order closure,
the complaint should seek an upgraded well system that satisfies both
part 265 and 270 standards.
Facilities/units that close and do not submit closure plans by
November 23, 1985 should be targeted for enforcement by an authorized
State or the Region.
Finally, the facilities/units that do not certify compliance
and/or submit a Part B application and enter the closure universe will
be inspected. In the event that the inspection or other credible
information from an informant reveals that these facilities/units
operated after November 8, the case should be referred immediately to
the Office of Criminal Investigations in the Region. Neither EPA nor
State regulatory personnel may negotiate with the facility, as this
may detract from the criminal action. This does not preclude a prompt
and unequivocal filing for a Temporary Restraining Order.
D. Ongoing Enforcement Throughout FY 1986
Facilities/units that retain interim status and are in the permit
applicant universe, as well as facilities in the closure universe, may
not be in full compliance with applicable requirements, or may be
appropriate candidates for corrective action. They FY 1986 RIP,
recognizing that manpower and resources must be applied throughout the
year, provides for inspections and enforcement during the entire year.
Of those facilities/units retaining interim status, some will
have monitoring well systems that EPA and/or the State considered
marginal at the last inspection. Where the interim status well system
is marginally acceptable, the Region/State should review the Part B
application, update the inspection, and as appropriate, take
enforcement action during FY 1986 to require compliance with 40 C.F.R.
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Parts 265 (Subpart F) and 270.14(c), or the State analogue. Where the
well system in the view of the State is adequate to certify
compliance, and notwithstanding its reservations, the Region believes
that it cannot develop a successful case to terminate interim status
and force closure, the Region/State should review the Part B
application, update the inspection and, as appropriate, take
enforcement during FY 1986 to require compliance with 40 C.F.R. Parts
265 (Subpart F) and 270.14(c), or the State analogue.
The Region/State must take actions to require adequate ground-
water monitoring, a satisfactory closure plan, appropriate corrective
action and implementation of the closure plan for those facilities
entering the closure universe. These activities will occur throughout
FY 1986 in accordance with the RIP.
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LOSS OF INTERIM STATUS ENFORCEMENT STRATEGY TIMETABLE
Pre - November 8, 1985
9/18 Federal Register Notice on interpretation of provision
signed
9/19 Congressional briefings and other communications begin
9/25 Federal Register notice published
9/26 Draft of this strategy to the Regions
10/16 Final of this strategy to the Regions
Bi-weekly conference calls with regions to go over questions raised
(participation optional)
Mail responses to questions submitted by Regions
Enforcement continues through this period.
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Post - Nov 8 (Regions)
target dates
9/30-11/7
11/8-11/19
11/12-11/19
11/20-11/25
11/25
11/25-12/5
11/27-12/3
[11/23 is a
Sat; 11/28 is
Thanksgiving]
12/3-12/6
12/9
12/10-12/30
12/30/85
Regional lists identify facilities/units that are
unable to certify (e.g., no wells, no insurance,
clearly inadequate wells ("targets"))
Regions receive the vast majority of certifications and
Part Bs
Regions receive responses to §3007 letters on
noncertified units (closure universe)
Regions compile preliminary operating permit applicant
and closure universe lists by name and I.D. number of
(1) all facilities (by unit) that certify & submit Part
B and (2) all facilities (by unit) not certifying
and/or submitting Part B
Regions submit preliminary universe lists (above) to
OWPE/States; also send States answers to §3007 requests
First screen - Regions determine if targets certified:
compare list of those that certified to target list;
identify certifiers that are enforcement targets;
confer with Office of Criminal Investigations in the
Region; confer with Regional Counsel on TROs.
Regions receive response to §3007 letters on closure
plans filed
Second screen - Regions determine if facilities/units
that lost interim status filed closure plan. Amend
list of facilities (by unit) not certifying and
submitting Part B to include untimely filing or
nonfiling of closure plan.
Regions submit to OWPE/State preliminary census,
stating for each facility (with RCRA ID Number) :
identity of units that certified & submitted Part B;
units not certified or no Part B; untimely or no
submission of closure plan
Verify/resolve questions in census
Regions submit final census to OWPE, States (final
version of 12/9 Census)
NOTE: ENFORCEMENT IS TO PROCEED FROM NOVEMBER 8, 1985 AND
THEREAFTER UPON DISCOVERY OF A SIGNIFICANT VIOLATION
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ATTACHMENT A
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
[ADR]
[1]
RE: Request for Information Pursuant to §3007 of the Resource
Conservation and Recovery Act, 42 U.S.C. §6927
Dear [NAME]:
Earlier this year, the Environmental Protection Agency sent your
Company a letter to advise you that the Resource Conservation and
Recovery Act (RCRA) had been amended by the Hazardous and Solid Waste
Amendments of 1984 (the Amendments), and in particular to inform you
of a new provision known as the loss of interim status provision. The
purpose of this letter is to provide additional guidance relative to
the loss of interim status provision and to request information
regarding your operations before and after November 8, 1985.
The loss of interim status provision provides:
(2) In the case of each land disposal facility which has
been granted interim status under this subsection before the
date of enactment of the Hazardous and Solid Waste Amendments of
1984, interim status shall terminate on the date twelve months
after the date of the enactment of such Amendments unless the
owner or operator of such facility-
(A) applies for a final determination regarding the
issuance of a permit under subsection (c) for such facility
before the date twelve months after the date of the
enactment of such Amendments; and
(B) certifies that such facility is in compliance
with all applicable groundwater monitoring and financial
responsibility requirements.
The Environmental Protection Agency's interpretation of the
requirements under this provision is published at 50 Federal Register
38946 (September 25, 1985), a copy of which is enclosed. Please read
and follow this closely. In order for you to continue to place
hazardous wastes in land disposal units at your facility on and after
November 8, 1985, by that date you must (1) submit a Part B operating
permit application and (2) a certification of compliance with all
applicable groundwater monitoring and financial responsibility
requirements. Certification is authorized on a facility-wide or unit-
by-unit basis. The Part B application should be mailed or delivered
before November 8, 1985 to:
and
EPA State
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The certification should be mailed or delivered before November 8,
1985 to:
and
EPA State
The owner/operator of a facility may certify compliance only if the
facility or units for which interim status is retained is in physical
compliance. Because this is a provision of federal law, an order by
any agency that has a compliance date on or beyond November 8, 1985
does not relieve the owner/operator of the obligation to be in
physical compliance by the statutory date when the certification is
due. You may not interpret or rely on an order or compliance schedule
therein as an extension of the November 8, 1985 deadline. Moreover,
difficulties in achieving compliance, such as obtaining insurance, are
not grounds for filing a certification if you are not in physical
compliance.
If you do not certify compliance with ground-water monitoring and
financial responsibility requirements and/or you do not submit a Part
B permit application by November 8, 1985, you must cease placement of
wastes into the land disposal units in question by that date and you
must comply with all closure and post-closure requirements. This
follows by operation of law and does not require notice from EPA.
You are hereby required, pursuant to the authority of §3007 of RCRA,
42 U.S.C. §6927, to report to EPA information regarding hazardous
waste land disposal units that had interim status on or before
November 8, 1985 and/or received hazardous waste after November 19,
1980. In particular, you are to submit the information specified in
Paragraphs 1-2 of Attachment I between November 8 and 13, 1985.
Information in paragraph 3 is to be submitted between November 23 and
November 27, 1985. Information in paragraph 4 is to be submitted
between January 3 and 10, 1986. Paragraph' 5 is ongoing. Each
submission must identify the facility by name, address and RCRA I.D.
number, refer to the information request number or repeat the request,
be a self-explanatory and complete response, be dated and be signed.
You may, if you desire, assert a business confidentiality claim
covering part or all of the information requested, in the manner
described by 40 CFR §2.203(b). You should read the above-cited
regulations carefully before asserting a business confidentiality
claim, since certain categories of information are not properly the
subject of such a claim. Information covered by such a claim will be
disclosed by EPA only to the extent, and by the means of the
procedures, set forth by 40 CFR Part 2, Subpart B. If no such claim
accompanies the information when it is received by EPA, it may be
available to the public by EPA without further notice to you.
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Please forward the information requested to:
U.S. Environmental Protection Agency
Waste Management Division
Federal Building - Room
City/State
Attn: [2]
Failure to comply with the above request within the time frame
specified may result in an enforcement action by EPA under the
authority of §3008 of RCRA, including the assessment of penalties.
You should also be aware that knowing falsification of any information
provided pursuant to this request is a criminal violation under
§3008(d)(3) of RCRA, and other provisions and may result in fines and
imprisonment.
If you have any questions with regard to the above, or should you need
further clarification regarding your response to this letter, please
contact [Technical lead] of my staff at (617) 223-
Sincerely,
Director,
Waste Management Division
cc: State representative
bcc: Analyst
Technical Lead
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ATTACHMENT I
For purposes of the information request, the following definitions
shall apply:
"Hazardous waste" means those solid wastes identified as hazardous
waste in 40 CFR part 261, or the authorized state program in which a
facility is located whichever is more inclusive.
"RCRA Land Disposal Units" shall include landfills, land treatment
units, surface impoundments used for storage, treatment or disposal,
waste piles and class I hazardous waste underground injection wells
subject at any time to regulations or other requirements under
subtitle C of the Resource Conservation and Recovery Act.
INFORMATION REQUEST
(1) Identify each RCRA land disposal unit at your facility by
stating the common name or identifier used by the facility and type of
unit, and by identifying the unit on a photocopy of a topographic map
attached to your response.
(2) Identify each RCRA land disposal unit at your facility which was
not within the scope of a certification of compliance with all
applicable groundwater monitoring and financial responsibility
requirements and a Part B permit application, transmitted to EPA by
November 8, 1985, by indicating for each such unit the common name or
identifier used by the facility, which unit must be identified on the
topographic map identified in response to information request number 1
above.
(3) For each RCRA land disposal unit at your facility which was not
within the scope of a certification of compliance with all applicable
groundwater monitoring and financial responsibility requirements and a
Part B permit application transmitted to EPA by November 8, 1985
(these units were to be identified in answer No. 2 above), state when
and to whom a closure plan was submitted.
[ITEMS 4-5 are OPTIONAL]
(4) For each RCRA land disposal unit at your facility which was not
within the scope of a certification of compliance with all applicable
groundwater monitoring and financial responsibility requirements and a
Part B permit application transmitted to EPA by November 8, 1985:
a. State the type and average quantity of hazardous wastes
placed in each on a daily (or monthly) average during the
year prior to November 8, 1985.
b. State when the unit ceased receiving hazardous waste;
c. State whether hazardous waste was placed in the unit at any
time between November 8, 1985 and December 31, 1985;
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d. State how the hazardous waste introduced into the unit
before November 8, 1985 has been treated, stored or disposed
of between November 8, 1985 and December 31, 1985.
If waste is stored on-site, report:
(i) the type of storage;
(ii) the quantity presently in storage; and
(iii) the rate of generation.
If waste is shipped off-site for treatment, storage or
disposal, list the name and address of the receiving
facilities utilized.
e. State how you intend to treat, store or dispose of that
hazardous waste identified in "d", in 1986, including the
identity of any off-site facility to which you intend to
ship it.
(5) If at any time in the future, hazardous waste is placed in any
unit which was not authorized by Federal law to receive hazardous
waste on or after November 8, 1985, a report must be submitted to
EPA no later than (5) five days after placement of waste in the
unit. Such report shall include:
(a) the data on which waste was placed in to the unit;
(b) the type and amount of waste placed in to the unit; and
(c) the circumstances surrounding recommencement of
operation of the unit.
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_,.
•f
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
' AUG I 9 1991
E OF
SOLID WASTE AND E^EfGENCv RESPONSE
MEMORANDUM
TO:
Janes J. Scherer ___ ^ /I
Regional Administrator (^t\ __ // (yl ^
FROM: Don R. Clay, Assistant Administrator /^^ /
Office of Solid Waste and Emergency ResponseL^^X
SUBJECT: Interim Status under the Boiler and
Industrial Furnace Rule
Thank you for your memoranda of April 16 and May 2, 1991,
in which you described your strategy for addressing boilers and
industrial furnaces (BIFs) seeking interim status as "existing
facilities" under EPA's BIF rule.
I appreciate your concern about BIFs seeking interim
status without any history of hazardous waste management, or
any documented commitment to such activities. Further,
I commend your efforts to ensure that interim status is
reserved for those facilities that, under the regulations,
are legitimately entitled to such status. ' At the same time,
our decision on whether a specific facility has met the standard
should be consistent with our past decisions and with our
established regulatory interpretations.
In an attachment to .this memorandum, I address the specific
points you raised in some detail. In any decision on a
particular facility, however, you need to keep in mind what we
believe is the general intent of both the statute and our
implementing regulations: that facilities with a history of
handling hazardous waste at the time the waste becomes subject to
regulation, or that have made a substantial commitment to handle
the waste in the near future, be allowed to continue their
activities under interim status. Where a facility has actually
handled hazardous waste before the effective date of the
regulation (that is, August 21, 1991, for the BIF rule), the
facility is clearly eligible for interim status. Where the waste
has not yet been handled by the effective date, we agree that the
case becomes more complex, and its resolution depends on the
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ability of a facility to demonstrate a substantial commitment
to hazardous waste management within the near future. Criteria
for making this decision are discussed in more detail in the
attachment to this memorandum. Clearly, these criteria must be
applied on a case-by-case basis considering the particular
circumstances at each facility.
In your April 16 memorandum, you made an important point:
that BIFs seeking interim status may be underestimating the
potential costs for corrective action. We agree that the costs
could be high and that BIFs may not have adequately taken them
into account. I suspect that if the potential liabilities are
clearly pointed out to BIF owner/operators, those who have not
already made a substantial commitment to managing hazardous
waste may have second thoughts about entering the business.
Additionally, BIF facilities should clearly understand that
gaining interim status, by itself, does not convey the right to
burn hazardous waste. It is likely that other federal, state,
and local requirements must also be met, and the conferring of
interim status does not extinguish any other legal obligations.
I trust that the attached response will assist you in
implementing the BIF rule in your region. If you have any
questions regarding these criteria, please feel free to contact
Devereux Barnes at (202) 475-7276.
Attachment
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ATTACHMENT
Clarification of Interim status criteria for BIF Facilities
Background
The basic requirements for obtaining interim status were
established by section 3005(e) of RCRA, as amended by HSWA, which
specifically grants interim status to "any person who is in
existence on the effective date of statutory or regulatory
changes under this Act that render the facility subject to the
requirement to have a permit." In the legislative history
accompanying this provision, Congress indicated that "existing
facilities" would include types of facilities that were
previously exempted from certain RCRA requirements but
subsequently became subject to those requirements. (See 50 FR
28723, July 15, 1985.) We have consistently taken this position
in the case of new waste identifications (e.g., see the Toxicity
Characteristic rule, 55 FR 11798). EPA has also acknowledged on
several occasions that non-hazardous waste management facilities
that are converting to hazardous waste management but have not
yet begun hazardous waste management by the effective date of a
regulation could qualify for interim status (see 46 FR 2346).
One of the three basic prerequisites for obtaining interim
status pursuant to §3005 of RCRA is for a facility to be "in
existence" on the effective date of any statutory or regulatory
amendments that render the facility subject to the requirement to
have a RCRA permit (§270.70(a)). Two kinds of facilities are
deemed to be "in existence": (1) a facility that is "in
operation" on the effective date 6f a regulatory or statutory
change that renders a facility subject to the permit requirement
(i.e., treating, storing, or disposing of hazardous waste), or
(2) a facility that is "under construction" on the effective date
of such a change. For a facility to be considered "under
construction," §260.10 (under the definition of "existing
facility") requires that the facility must have all permits and
approvals necessary for physical construction and either: (1) an
on-site construction program has begun, or (2) the facility has
accepted substantial contractual obligations for such
construction, to be completed within a reasonable time.
We understand that several BIFs in Region VIII have already
been constructed and may wish to begin hazardous waste operations
after the August 21 date. EPA has interpreted the term
facilities "under construction" also to include facilities that
have completed construction on the relevant date if they can
demonstrate the intent to commence hazardous waste operations
within a reasonable period of time (i.e., through a trial burn or
agreements with suppliers to receive hazardous waste derived
fuels), and if the facility meets the other relevant standards
for "in existence." The Agency's interpretation of what
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constitutes being "under construction'0 is discussed in detail in
the January 9, 1981, Federal Register (46 F_B 2344).
1. What State and local approvals or permits are necessary to
meet the definition of "existing facility10?
One requirement for a facility to be considered "under
construction" is that it possess "the Federal, State, and local
approvals or permits necessary to begin physical construction."
As defined in §260.10 (under the definition of "Federal, State,
and local approvals or permits necessary to begin physical
construction"), these permits or approvals are those required
under hazardous waste control statutes, regulations, or
ordinances. Air pollution control permits that must be obtained
prior to facility construction or modification under Federal or
state laws would not be needed for interi® status if the purpose
of the legislative provision is to regulate air emissions in
general, and not specifically to regulate the treatment, storage,
or disposal of hazardous waste, or th® siting of a hazardous
waste management facility- Similarly, state or local building or
zoning permits would be included only if they specifically
address hazardous waste management. Of cours®, the facility
remains responsible under stat® or local law for obtaining
relevant building and zoning permits and approvals, even though
the failure to obtain the® uill not prevent a facility from
obtaining interim status.
It is important to recognizer that the requirement relating
to approvals and peraits refers t© approvals or permits necessary
to begin physical constructJOB. Sine© th® Region VIII BIFs have
already been constructed, th© requirement should be read to apply
to approvals for any physical Modification needed to receive
hazardous waste* Of courses, if th© physical modification has
already been completed, th® need for preeonstraction permits
would not arise as an issu© (unless it coald b@ argued that the
construction took plus© illdgaliy in th© absence of a necessary
permit)„
2. What constitutes a rasubstantial loss due to a contractual
T© b©
ain . ©ssistene©, ra
handling hagas"d©us wasto
"entered
or modified
of th© facility t©
timaet claaoooo TSa^ao, IFA has
ra as bQin^ at l©aot 10 poreant of
or
t© all costs
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that may be associated with a construction project; for example,
options to purchase, contracts for feasibility, or engineering or
design studies would not constitute an eligible contractual
obligation. (See 46 FR 2346, January 9, 1981.) In the case of
BIFs that have not burned hazardous wastes before, the total
project cost for physical construction refers to the
modifications necessary for the BIF to manage hazardous waste.
Although the 1981 preamble does not specifically address when
meeting the 10 percent threshold would not be sufficient, we
believe that if the loss to the facility of canceling the
construction were minimal, the loss could not be considered
substantial, even though it exceeded 10 percent. For example, if
the total cost of kiln modification were $5,000, a 10 percent
loss ($500) would not be viewed as substantial. In contrast, for
a project that would exceed $250,000, we believe that 10 percent
would represent a substantial amount.
Of course, contract cancellation clauses with higher
percentages, or other approaches to a demonstration of
substantial loss, could be considered by the Regions as well.
In that regard, we note the unique circumstances presented by the
BIF rule for cement kilns that will be modified to burn hazardous
waste. Even though the contractual cost of installing such
modifications can be relatively low, the Regions can take into
account other economic factors and actions showing substantial
loss insofar as they provide evidence of a bona fide substantial
commitment to managing hazardous waste in the near future.
You should also note that the "substantial loss" criterion
must be met only at facilities where construction (i.e., facility
modifications to receive hazardous waste) has not begun. Where
physical construction is underway or completed, a facility is
not required to show "substantial loss," but rather objective
indications of a bona fide intent to manage hazardous waste.
3. What constitutes a "reasonable time to complete
construction"?
The regulations do not define the term "reasonable time to
complete construction," nor do they define a "reasonable time" to
begin management of hazardous waste, in the case of an already
constructed facility. To determine what is a reasonable time,
Regions must make a case-by-case decision. Generally, if a
facility is undergoing a continuous process to initiate or
complete construction activities, and arrangements are in place
to ensure that such construction can be carried out on a schedule
that is typical of similar construction activities, then
completion of construction should be considered to be within a
"reasonable time." The same rule of thumb applies to the
definition of a "reasonable time" to begin management of
hazardous waste.
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4. Effect of a state moratorium.
In your memorandum of April 16, 1991, you discuss the
possible effect of the Utah moratorium on the ability of cement
kilns in the state to qualify for interim status. Since the Utah
moratorium only prohibits the burning of hazardous wastes in
cement kilns, it is still possible for a facility to meet the
fundamental criteria for gaining interim status. Of course,
gaining interim status does not affect the legal status or
applicability of Utah's moratorium. In contrast, there could be
other situations where a moratorium could prevent a facility from
meeting one of the "in existence" criteria. For example, if the
facility were unable to obtain a required approval for
construction due to a moratorium on hazardous waste
preconstruction permitting, interim status would be precluded.
5. Section 3010 notification requirements for BIFs.
It is likely that very few BIFs were required to submit a
section 3010 notification on May 22, 1991. One reason is that
this notification requirement only applied to facilities actually
handling hazardous waste fuel on February 21, 1991. (See 45 IB
76631, November 19, 1980.) This section 3010(a) notification is
intended to be a "snapshot" of hazardous waste management
practices at the time a rule is promulgated. Therefore, if a
facility is "under construction" a Section 3010 notice is not
required. (See H.R. Rep. No. 198, 98th Cong., 1st Session, 40
(1983).) Another possibility is ,that the facility might have
already submitted a notification previously either for the
burning of hazardous waste fuel under §266.35, or for some other
hazardous waste activity, in which case the BIF is not required
to renotify.
6. Pre-Compliance certification.
The BIF rule does not require facilities to submit a pre-
compllance certification by August 21, 1991, to attain interim
status. Once a facility meets the statutory and regulatory
requirements, interim status follows automatically. However, if
a facility fails to submit such a certification (or if the
facility fails to comply with subsequent interim status
compliance schedule requirements), it loses its ability to manage
hazardous waste in the BIF unit, unless and until it receives a
Part B permito
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