vv EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
TITLE:
9502.00-2
RCRA Corrective Action at Federal Facilities
April 18. 1986
April 18, 1986
OSW/SPB
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE:
0 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
Federal Register Notice, March
OS WER OS WER OS WER
fE DIRECTIVE DIRECTIVE Di
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a EPA
Wasn'ir.gtcn JC 2&-60
OSWER Directive Initiation Request
9502.00-2
i
Name o' Contact Person
Paul Connor
Lsaa O'f'Ce
, — i
LJ OERR
Ljj osw
i t
a
OU^T
OWPE
AA-CSWES
Mai. Coae .,., C
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
WASHINGTON, D.C. 20460
.
APR 181986
OFFICE OF
SOLID WASTE AND EMERGENCY "ESPONSE
»'
"EMCRA^DUM ' OSWER POLICY "DIRECTIVE. .#9502.00-2
SUBJECT: RCRA, Correct iye Action at Federal Facilities
u^ .
FROM: j. "ins tor, Porter
ssistant Administrator
s
TO: °ecional Administrators, Regions I -- X
On March 5, 1986, we cublished two notices in the Federal
Rec ister (copies attached) aoout corrective action at Federal
facilities. I am writini to clarify some oossible misconceo-
tions over the two March 5 notices.
The first- notice states': '!) §3004(u) aoplies to Federal
facilities; (2< Federal acencies are subject to the sane
" orpcerty-wide" definition of facility as other owner/ooera-
.tors; and. (3) the term "owner" aoplies to individual Federal
departments, -agencies, and instrumentalities rather than the
r-.'.S.. Government. The second notice announces EPA's intent
to promulgate rules to further clarify Federal ownershio and
to establish a scheme of priorities for corrective action at
Federal facilities.
Our office has heard conflicting statements on the effect
of EPA's intent to promulgate a rule on national priorities.
Some Federal agencies may incorrectly believe that corrective
action has been "put on hold" until EPA issues a final
regulation. This is not true. Until EPA issues a final rule
on priorities for corrective action at Federal facilities, the
Regions must continue to process and issue permits, including
negotiating corrective action schedules of compliance under
§3004(u). Current permitting negotiations on corrective action
between EPA and Federal . agenc ies must not be affected by the
two Federal Register notices. EPA shall continue to require
corrective action at -Federal facilities and EPA shall
continue to require schedules of compliance in the permits of
Federal facilities. Where appropriate, administrative orders
under §3008(h) should also be issued to direct Federal agencies
to conduct corrective action activities prior to issuance of
the permit.
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In negotiating schedules of ccmpliance,• the Federal
agencies may legitimately raise the issue of the relative
priority of the facility in question. Where EPA, the State
and the Federal aqency acree that the facility is of lesser
importance, the timeframes for conducting corrective action
activities in the schedule of compliance should reflect this.
Where the three parties are unable to agree on the schedule
for conducting corrective action activities, these disputes
should be referred to Bruce Weddle, Director, Permits and.
State Programs Division, OS'.v, or Lloyd Guerci, Director,
RCRA Enforcement Division, OV.?D!!:, to resolve permitting or
enforcement issues, respectively. We are prepared to work
wich the Federal agency '-"eadcuarters to obtain resolution of
these problems.
I have already written to the major Federal agencies
(Departments of Energy, Defense and the Interior) to explain
our intent to continue the permit process and to negotiate.
schedules of compliance for corrective action. I urged each
of them to begin considering their own oriorities to facili-
tate the negotiation process, and I will meet with each
agency to discuss i.s plans.
While negotiation of corrective action schedules of
compliance may be. handled on a case-by-case basis until the
final rule is Tromul": a ted , there is one area discussed in
the Federal Peg i ster notice which we cannot address without
a regula-ion. The notice states that in some situations
where a private party has oartial property interests such
as leases or mineral extraction rights, it may be appropriate
to define the facility boundary in terms of the rrrivate
party's property interest rather than the Federal agency's
property interest. In these limited situations the private
party would be responsible for taking corrective action
rather than the Federal government. In all such cases
prior to issuance of the final rule, the Federal agencv
will be considered the owner of such property and will be
held resoonsible for releases from such operations and for
releases on its contiguous Federal lands.
I hope this will help to clarify corrective action at
Federal facilities. Questions on this subject may be
addressed to Paul Connor, Federal Facility Coordinator in
OSW (FTS 475-7066) for permitting issues or to Tony Baney,
Federal Facilitv Coordinator in OWPE (FTS 382-4460) for
enforcement issues.
Attachments
cc: Director, Hazardous Waste Division,
Regions I-X
Chief, Hazardous Waste Branch,
Regions I-X
Allan Hirsch, OF*
Regional Federal Facility Coordinators,
Regions I-X
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Wednesday
March 5, 1986
Part VI
Environmental
Protection Agency
40 CFR Parts 260, 261, 262, 264, 265, 266.
270, 271, and 280
Federal Hazardous Waste Facilities;
Policy and Interpretation, and Intent to
Propose Rules
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7722 Federal Register / Vol. 51. No. 43 / Wednesday. March 5. 1986 ./ Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part* 390, 281, 262, 264, MS
286, 270, 271. and »0
Hazardous Wast* Management
System; Supplement to Preamble to
Final Codification Rule
AGENCY: Environmental Protection
Agency.
ACTION: Notice of policy and
interpretation. _
SUMMARY: In November 1984 Congress
comprehensively amended the Resource
Conservation and Recovery Act (RCRA)
of 1976. The amendments include a new
section 3004(u) requiring corrective
action for release) of hazardous waste
and constituents at hazardous waste
management facilities seeking RCRA
permits. On July 15. 1985 (50 FR 28702)
the Environmental Protection Agency
(EPA) published a final rule codifying
statutory- changes to its hazardous
waste management program. In the
preamble to this final codification rule.
EPA announced that it needed to resoive
legal and policy issues concerning the
applicability of the new corrective
acnon program to federal hazardous
waste facilities. EPA today is
supplementing that preamble by
explaining the resolution of three issues
of statutory interpretation concerning
federal agency compliance. In a
separate notice also published today
EPA is announcing iti intent to propose
rules addressing three related issues.
PON FUMTHM INFORMATION CONTACT:
RCRA Hotline, toll free, at (800) 424-
9346 or at (202) 382-3000. Also. Dentse
Hawkins. Office of Solid Waste (WH-
563). U.S. Environmental Protection
Agency. 401 M Street SW.. Washington.
DC 20460. (202) 382-2210.
sumiMKNTAirr WPOMMATION: In
November 1984 Congress amended
RCRA by enacting the Hazardous and
Solid Waste Amendments of 1984. The
amendments include1 a new section
3004(u). 42 U.S.C. 69Z4(u). requiring any
permit issued to a hazardous waste
management facility after November 8.
1984 to require corrective action for all
releases of hazardous waste or
hazardous constituents from any solid
waste management unit at the facility
regardless of when waste was placed in
the unit.
On July 15. 1985 (50 FR 28702) EPA
promulgated a final rule codifying
statutory changes to its hazardous
waste regulations. In the preamble to
this rule. EPA presented its view on the
meaning of "facility" in section 3004(u).
EPA took the position that Congress
intended "facility" to include the entire
site under control of the owner or
operator engaged :n hazardous waste
management (50 FR 28712). EPA added.
however, that it had not resolved
various legal and policy questions
regarding the extent to which Congress
intended this definition to apply to
hazardous waste "facilities" owned or
operated by federal agencies. EPA gave
a commitment to make its best efforts' to
resoive ^iese issues within 60 days.
Today EPA is supplementing the
preamble to the codification rule by
giving notice of its views on three issues
of statutory interpretation concerning
federal compliance with section 3004(u).
In a separate notice published
elsewhere in today's Federal Register
EPA is also announcing that it intends to
address three additional issues through
ruiemaking.
As a result of the promised review.
EPA has concluded that section 3004(u)
subjects federal facilities to corrective
action requirements to the same extent
as any facility owned or operated by
private parties. Furthermore. EPA has
determined that the statute requires
federal agencies to operate under the
same property-wide definition of
"facility." These results are consistent
with section 6001 of RCRA. 42 U.S.C.
6981. which generally requires each
department agency and instrumentality
of the federal government to comply
with RCRA requirements to the same
extent as any other person.
The federal agencies, however, have
raised several issues that merit special
consideration. These issues involve the
scope of federal ownership interests and
the need to set priorities for the use of
federal cleanup funds.
EPA is resolving the first of these
issues as a matter of statutory
interpretation. The federal agencies
have pointed out that the United States
could be considered the "owner" of a
federal hazardous waste facility. Under
EPA's interpretation of the definition of
"facility" for section 3004(u). cor.*:guo-ss
tracts of federal lands owned by the __
United States but administered by 3
different federal agencies could be =§
considered a single "facility" for
corrective action purposes. A perrr; fir
a hazardous waste unit located
anywhere on this collective federal
"facility" would trigger corrective action
requirements for every solid waste
management unit found within :ts
boundaries. In the western half of the
United States, continguous federal ia.-.da
cover large portions of several states.
Moreover, the agency that operates a
hazardous waste unit might not have
authority to require or manage cleanup
of solid waste units on lands
administered by other agencies. The si:e
of the facility and the administrative
limitations could make corrective acv.cn
very difficult.
EPA believes that Congress did not
intend section 30CMIuj to require such
wide-ranging cleanups on federal lands.
Congress has consistently expected
individual federal departments and
agencies to obtain RCRA permits and
manage hazardous waste. For example.
section 6001 of RCRA specifically
requires "departments, agencies ai
instrumentalities of the Federal
government" to comply with RCRA
requirements. The legislative history of
this provision also requires "federal
agencies" to comply with RCRA. S.
Rept. 94-938. 94th Cong.. 2d Sess. at 24
(1976). Congress could easily have
referred to the "United States" if it
intended the entire federal government
to respond together. Consequently. EPA
is today interpreting the concept of
ownership for the purposes of section
3004(u) as referring to individual federal
departments, agencies, and
instrumentalities.
EPA has concluded that it would be
more appropriate to resolve the
remaining issues through ruiemaking.
EPA intends to propose rules in the near
future to resolve these issues, which are
described in greater detail in a separate
notice published in today's Federal
Register.
Dated: February 28.1966.
LM MThooiM.
Administrator.
[FR Doc. 86-4754 Filed 3-1-96. 8:43 amj
MLUNQ coot ma 10 M
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Federal Register / Vol. 51. No. 43 / Wednesday. March 5. 1986 7 Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 2M, »1,393, 264, 2«,
264, 270,271 and a«0
[ntt.-»7«-iJ
Hazardous Waste Manag«m«nt
System; Intant To Propoaa Rul*a for
Federal FadlWaa
AGENCY: Environmental Protection
Agency.
ACTIOM: Notice of intent to propose
rules.
SUMMAMY: In November 1984 Congress
comprehensively amended the Resource
Conservation and Recovery Act (RCRA)
of 1978. The amendments include a new
section 3004(u) requiring corrective
action for releases of hazardous waste
and constituents at hazardous waste
management facilities seeking RCRA
permits. On July IS. 1965 (50 FR 28702)
the Environmental Protection Agency
(EPA) published a final rule codifying
statutory changes to its hazardous
waste management program. In the
preamble to this final codification rule.
EPA announced that it needed to resolve
legal and policy issues concerning the
applicability of the new corrective
action program to federal hazardous
waste facilities. Elsewhere in today s
Federal Register EPA is supplement^
that preamble by stating its views on
three issues of statutory interpretation.
In this notice EPA announces its intent
to propose rules addressing three
additional issues related to federal
agency compliance.
POM FWmWH IMPOmUTION CONTACT
RCRA Hotline, toll free, at (800) 424-
9346 or at (202) 382-3000. Also Denise
Hawkins. Office of Solid Waste fWH-
563). U.S. Environmental Protection
Agency. 401 M Street SW.. Washington.
DC 20460. (202) 382-2210.
November 1904 Canapes* amended
RCRA by enacting tfaa Hazardoiu and
Solid Waste AmandmanU of 1964. The
amendment! include a now section
3004(u). 42 U.S.C. flB24(u). requiring any
permit issued to a hazardous waste
management facility after November 8.
1984 to require corrective action for ail
releases of hazardous watte or
hazardous constituents from any solid
waste management unit at the facility
regardless of when waste was placed in
the unit
On July 15.198S (50 FR 28702) EPA
promulgated a final rule codifying
statutory changes to its hazardous
waste regulations. In the preamble to
this rule. EPA presented its view on the
meaning of "facility" in section 3004(u).
EPA took the position that Congress
intended "facility" to include the entire
site under control of the owner or
operator engaged In hazardous waste
management (50 FR 26712). EPA added.
however, that it had not resolved.
various legal and policy questions
regarding the extent to which Congress
intended this definition to apply to
hazardous waste "facilities" owned or
operated by federal agencies. EPA gave
a commitment to make its best efforts to
resolve these issues within 60 days.
Elsewhere in today s Federal Register
EPA is publishing a policy nonce that
supplements the preamble to the
codification rule by giving notice of.
EPA's views on three issues of
interpretation concerning federal
compliance with section 3004(u). In this
notice EPA is announcing that it intends
to address three additional issues
through ruiemaking. This notice is not a
proposal and EPA is not yet requesting
comments on these issues.
In the policy notice published
separately today. EPA is announcing
that it interprets the concept of on
"ownership" for trie purposes of defining
facility boundaries under section 3004(u)
as refering to individual departments.
agencies and instrumentalities. In some
cases EPA believes that "ownership"
should refer to major departmental
subdivisions that exercise independent
management authorities. For example.
within the Department of Defense. EPA
believes that the term should be viewed
as referring separately to the separate
branches of the Armed Services.
Similarly, within the Department of the
Interior. EPA believes that "ownership"
should refer to major subdivisions such
as the National Park Service and the
Bureau of Land Management. If
ownership is not defined in terms of
these smaller units, the logistical
problems described in the other notice
will continue to hamper federal
corrective actions. EPA therefore
believes that recognition of these
subdivisions is consistent with
Congressional intent EPA will propose
a rule to clarify position and explain
more fully the rationale for recognizing
specific subdivisions. In the interim.
EPA intends to recognize principal
subdivisions as a matter of statutory
interpretation on a case-by-case basis in
individual permit proceedings.
The Department of the Interior has
expressed concern that federal agencies
might be considered "owners" of
hazardous waste facilities on federal
lands operated by private panics with
panial property interests such as leases
or mineral extraction rights. The
Department urges that the federal
government should not be held ~^
responsible for releases from such i
operations. Furthermore, it believes that
the federal agency should not have to
clean up releases on contiguous federal
land when such a private party applies
for a RCRA permit for its hazardous
waste facility.
EPA intends to propose a rule that
limits Federal agency responsibility for
facilities operated by pnvate parties
with legal ownership interests by
identifying a "principal owner" for the
purpose of defining the "facility"
boundary under section J004(u). The
"principal owner" probably would be
the person most directly associated wrj
operation of the hazardous waste
facility. Only property within the scope
of the "principal owner's" legal interest
would be considered the "facility" for
corrective action purposes. The federal
agency that administers the same land
for the United States would not be
responsible for complying with section
3004(u) within the pnncipal owner s
"facility." To determine whether a
private party on federal lands should
treated as a "principal owner^ EPA
might consider factors such as the
degree of control the^federal agency
exercises over the pnvate party s
actions, or the amount of benefit the
agency derives from the pnvate party's
waste management operation. EPA will
also need to consider the impact of this •
concept on private lands where one
private party has granted legal
ownership interests to a second private1
party that operates a hazardous waste ••
"facility." "
Finally, all of the federal agencies that
discussed these issues with EPA have
advocated the establishment of national
priorities for cleaning up hazardous
releases at federal facilities under
section 3004(u). EPA agrees that it is
rational as a matter of public policy to
address the most seriously
contaminated facilities first. Moreover.
since the funding for corrective action is
not unlimited, priorities would help
maximize the use of available funds.
EPA also recognizes that states, which
will have the authority to issue
hazardous waste permits requiring
corrective action after EPA authorizes.
them to exercise this new authority. ma\
not share the same national perspective
or have the same priorities.
EPA intends to develop rules that
would allow federal agencies, subject to
EPA approval after consultation with
the states, to set priorities for correcting
releases from solid waste management
units at facilities that they own or
operate. These rules would also assure 8
state's full participation in establishing
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7724 Federal Register / Vol. 51. No. 43 / Wednesday. March 5. 1986 / Proposed Rules
the priorities *» • pert at the
authorization proeeea. Further. EPA
would ensure that any priority setting
scheme would not disturb th« aathonzed
state's traditional role aa the primary
issuer of RCRA permits. After a State
obtaina authorization to implement
3004(u) the State would issue the
corrective action portion of a hazardous
waste permit in authorized state. EPA is
not proposing any specific rules on these
issues today, but it intends to propose
rules soon.
EPA has resolved three of the basic
issues concerning federal compliance
with section 3004{u): The applicability of
lection 3004(u) to Federal agencies: the
definition of "facility": and the concept
that the United States is not the "owner"
for the purpose of defining RCRA
facilities.
EPA will work as quickly as possible
to resolve the remaining issues
concerning the "principal owner" and
national pnonties. In the interim. EPA
and the states will proceed to review
and issue RCRA permits, and EPA will
implement 3004(u) requirements at
federal facilities. EPA will address
issues not yet resolved by ruiemaiing on
a case-by-case basis.
Executive Order 12291 requires each -3
Federal agency to determine if a ~
reguiauon is a "major" or "minor" rale *
as denned by the Order and to submit
all regulations to OMB for review Since
this notice does not propose or
promulgate any rules. EPA has not
assessed its impacts or classified it u a
"major" or "minor" rule under E.O.
12291. EPA. howeverrjlid submit this
notice to OMB for review.
Dated: February 28.1988.
L»» M. Thorn**,
Administrator.
[FR DOC. 88-4755 FiW 3 4 6ft 8r4S «m)
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