vvEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
948L 00-8
TITLE:
Region III Issues on Section 30O4(u) Authority
APPROVAL DATE
EFFECTIVE DATE:
ORIGINATING OFFICE
0 FINAL
osw..
D DRAFT
STATUS:
[•-.] •" A- Pending OMB approval"-"- -
[ J ;- B- Pending"AA-OSWER approval -
[--] .*• C- For review's/or comment
[ ] D- In development or circulating
REFERENCF(6ther documents): headquarters
OSWER OSWER OSWER
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Name of Coniac: Person
ron L. Atkinson
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Branch
Permits Branch
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Aporoveo tor Review
Signature of Office Director
Date
Region III Issues on Section 3004(u) Authority
Summary of Directive
This memorandum responds to the memorandum of February 5, 1987, in which several
issues were raised relating to the extent and nature of the corrective action
authority under RCRA section 3004(u).
Key Words: •
contiguous property, process collection sewers, potential and future releases, leasec
Type of 0i7eWi§8vW'a/7ua/. Policy Directive. Announcement, etc.)
memorandum to regional office
' Status
i
I
D Draft
E] Final
D New
LJ Revision
Does tnis Directive Supersede Pr«v ( | Yes
if "Yes" to Either Question. Wtiat Directive (number, title!
No Does It Supplement Previous Ouective
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Mia j. j.c'-i i_ii<= ui ig i iid.j. on ~ I L I a i . \oaian; ' - ._,. , .^Juf' ul^GCTIVE NO.
UNITED STATES ENVIRONMENTAL PROTECTION Gif^ti. V Q f) ^ Q •-•. 2 J
WASHINGTON, D.C. 20460
OFFICE OF
SOLID WASTE ANC EMERGENCY RESPONSE
MAR 3 1 1987
MEMORANDUM
SUBJECT: Region III Issues on Section 3004(u) Authority
FROM: Marcia E. Williams, Director
.Office, of Solid Waste
TO: Robert L, Allen, Chief
Waste Management Branch, Region III
This memorandum is intended to respond to your memorandum of
February 5, 1987, in which you raised several issues relating to
the extent and nature of the corrective action authority under
RCRA section 3004(u).
The first issue that you raised dealt with whether or not
property that is owned and used by an owner/operator for waste
disposal, but which is not contiguous to the facility at which the
regulated hazardous waste management units are located, can be •
considered to be part of that facility, for purposes of implementing
corrective action under §3004(u). As explained in the July 15,
1985 codification rule, the term "facility" is meant to extend to
all contiguous property under the control of the owner/operator.
Since the property which you describe is separated from the facility
property by land that is not under the control of the owner or
operator, it cannot be considered "contiguous," and therefore cannot
be addressed as part of the facility under §3004(u). Since this
property is being used for waste disposal, however, enforcement
authorities under RCRA(e.g. §7003) or other statutes may be used as
appropriate to address environmental problems that may be occurring
from that waste management operation.
The second issue which you raised involves process collection
sewers, and whether they can be considered to be solid waste
management units (SWMUs). Process collection sewers are typically
designed and operated as a system of piping into which wastes and
waste waters from production processes and other process-related
activities are introduced, and which usually flow to a Wastewater
treatment system. We believe that there may be sound policy and
legal reasons for considering process collection sewers to be
SWMUs. However, we also recognize that such sewers do not per-
fectly fit the RCRA program's traditional concept of a waste
management unit. Considering the substantial potential impacts
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of defining process collection sewers to be a type of SWMU, it is
our intention to resolve this issue through the regulatory process.
The comprehensive §3004(u) rulemaking, which is scheduled for pro-
posal later this calendar year, will specifically address the
question of how to treat process collection sewers under the cor-
rective action program. We will therefore be able to base the
Agency ,'s final decision on a more thorough consideration of the
technical, legal and other implications of the issue-.
The third issue in your memorandum deals with the question of
the extent to which the §3004(u) authority can be used to address
potential or future releases at a facility. It has been the Agency's
interpretation that the §3004(u) authority does extend to addressing
.releases, which, occur: in. the. future;- i.e..,. after, a permit has been . . .
issued. To the extent that releases occur or become known after a .
permit is issued, corrective action for such releases can be
compelled, as necessary, under §3004(u). Further, in some situations,
it may be appropriate to use §3004(u) to require an owner/operator
to install certain monitoring devices at a unit, even though no
releases have yet occurred from the unit. Such a requirement should
be imposed, however, only where there is reasonably strong evidence
indicating that such releases are likely during the term of the
permit. The example that you cited in your, memorandum involving
buried drums that are deteriorating and thus are likely to release
would seem to be a good example of the type of situation where a
type of "detection monitoring" system could be appropriate.
We do not envision, however, using the §3004(u) authority to
require owner/operators to install devices or take measures to
protect against accidental releases (such as your example of
installing steel posts around a container storage area). We do not
believe that Congress intended this provision to be used to protect
against all contingencies where releases could occur.
Your fourth question had to do with the applicability of
§3004(u) to new facilities that are to be built on property where
solid waste management units are located, and more specifically,
where only a portion of the facility is to be leased to a new
operator. As explained in the July 15, 1985 codification rule, the
facility is the entire property under the control of the owner or
operator. Therefore, in issuing a permit for the new facility,
corrective action for any SWMU at the facility—including the
unleased portion--must be addressed. The requirement to conduct
any necessary corrective action at the facility, be it on the
leased or unleased land, will be implemented through a permit
jointly issued to the owner and. operator.
If you have any further questions on these issues, please
contact Dave Pagan at FTS 382-4740.
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r««l/tjf St«.
. Pa. 18106
SUBJECT: Permitting Authority Under Section 3004(u) of HSWA DATE: FEB 5 ]Qg7
FROM: Robert t.'-'Allen, Chief
Waste Management Branch (3HW30)
JQ, Marcia E. Williams, Director
Office of Solid Waste (WH-562)
In the process of conducting RCRA Facility Assessments and HSWA
Corrective Action Permits, several issues relating to the extent of
EPA authority under Section 3004(u) of HSWA have surfaced. There
already has been general discussion on some of these issues at both the
Region and at Headquarters. However, in order to include enforceable
requirements in Corrective Action Permits, definitive national policies
need to be established by EPA Headquarters. Your response to the
.. following issues, will direct our decisions on the Corrective Action
Permits being prepared by Region III.
1. Under what circumstances, if any, can nonadjacent property
be considered as part of the facility? The definition of
"facility" in Part 260 uses the term "all contiguous land".
The issue is whether or not this definition can be extended
to oe-arby property that is owned by the facility, and is or
has been used for the management of solid waste generated
at the facility. Since Section 3b of the HSWA Preamble
(50 Fed. Reg. 28712 (July 15, 1985)) further describes
a "facility" as "... the entire site that is under the
control of the owner or operator engaged in hazardous
waste management", the inclusion of nearby nonadjacent
property may be appropriate. The particular case under
consideration involves a landfill area that is owned by
the facility, but is separated from the facility by a
strip of land under other ownership. The landfill has
been and is currently being used for the disposal of
solid waste that is generated at the facility. No other
use of the landfill property is apparent. A clear defini-
tion of "contiguous" would help clarify the confusion.
2. Is a process collection sewer a solid waste management
unit (SWMU)? Although it was suggested that process
collection sewers be considered SWMUs during a RCRA
Facility Assessment (RFA) training course given in
Region 3, recent debate over this issue has been less
clear. Several industrial facilities in the permitting
process have voiced strong objections to including process
sewers in the RFA or the Corrective Action Permit. Unless
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process sewers are explicitly included in the definition
of SWMUs, we can expect resistance to investigations of
the systems and appeals to permits that include corrective
action for the systems.
3. Under what circumstances, if any, can a permit require
action to prevent potential future releases? There have
been discussions that under Section 3004(u) we do not
have the authority to require facilities to take measures
to prevent potential future releases. Rather, our authority
is limited to investigating and correcting releases that
have already occurred.
Two different types of potential future releases are of concern.
The first case involves accidental releases at unprotected solid
waste management units. Steps to prevent such accidental releases
could be as simple as installing steel posts around an accumulation
drum or repairing a secondary containment dike and/or pad around
a tank, or as extensive as requiring flood-proofing of units
located within the 100-year flood limit.
The second case involves the investigation of potential future
releases from prior disposal actions. For instance, buried
drums that are currently in fair structural condition may
not be releasing stored material at the time of the RCRA
Facility Investigation (RFI). These drums, however, could
deteriorate over time and release their contents in the
future. In such a case, short-term monitoring for releases
to the ground water would not show potential future releases.
A more direct method of investigation would be needed to
assess the potential for future releases, such as uncovering
and inspecting a sampling of drums. As an alternative,
long-term ground-water "detection" monitoring could be required
in cases where adequate sampling would be impractical.
4. What corrective action requirements apply to a new facility
built on property containing closed hazardous waste management
units? The particular site in question was used for the treat-
ment and disposal of hazardous waste. It was closed in accordance
with Part 265 standards in 1982; however, ground-water monitoring
and cap maintenance have been required by the State regulatory
agency. The proposed new facility plans to lease a portion of the
property and construct a commercial storage and treatment facility.
Could corrective action be required for the unleased portion of the
facility by either the lessee or the property owner if the new
facility is permitted?
A timely response to these questions would be appreciated. If you need
additional details on these issues, please call me at 597-0980 or John Humphries
at 597-0320. . .
cc: RCRA Branch Chiefs, Region I, II, and IV-X
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