vv EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
9504.02(84)
Responses and Mechanisms to Prevent GWM De-
ficiencies
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE: E:
0 FINAL
D DRAFT
STATUS:S:
11-29-84
11-29-84
Office of Solid Waste
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REFERENC^fbthe'rdocuments): ':
A- Pending OMB approval
B- Pending AA-OSWER approval
C- For review &/or comment
D- In development or circulati
' headquarters
OSWER OSWER OSWER
fE DIRECTIVE DIRECTIVE Di
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COMPLIANCE AND ENFORCEMENT DOC: 9504.02(34)
Key Words: " Ground-Water Monitoring, Enforcement, Assessment Monitoring
Regulations: 40 CFR Parts 265, 270, 270.14(c)
Subject: Responses and Mechanisms to Prevent GWM Deficiencies in Part Bs
Addressee: Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Air and Hazardous Materials Division Directors, Regions I-X
Originator: Lee M. Thomas, Assistant Adminsitrator for Solid. Waste and Emer-
gency Response, and Courtney M. Price, Assistant Administrator
for Enforcement and Compliance Monitoring
Source Doc: #9504.02(84)
Date: 11-29-84
Summary:
The memo recommends that Regions take the following actions:
Prior to Part B Request
In general, if an owner/operator has fully complied with Part 265 require-
ments, the results of interim status monitoring should be deemed conclusive
evidence of the presence or absence of contamination. For facilities that have
not fully complied with Part 265 requirements, Regions should examine interim
status data, determine what additional data are needed, and communicate this to
the owner/operator. Regions should notify the owner/operator about the type of
data required as early as possible prior to or upon calling in their Part Bs
(or upon knowledge of a planned new facility submittal). These infonnational
requirements should be further clarified during the EPA joint permit writer/
inspector site visit when the Part B is called in. If EPA has made its expecta-
tions clear and the initial Part B does not provide adequate data-, the Region
should, respond' with the "Late and Incomplete Part B Policy" and set a conserva-
tive date for response to the Notice of Deficiency.
After the Part B Due Date
The appropriate response to a facility that submits an incomplete or
inadequate Part B is enforcement action under §3008 that cites violations
of 40 CFR Part 270 and assessment of a penalty according to the "RCRA Civil
Penalty Policy".
When the Part B is Not Due, But a Substantial Hazard May Exist
Regions should use a §3013 Order when facilities may pose a substantial
hazard through ground-water contamination. Regions can use §3013 authority
to require monitoring, testing, analysis and reporting that the Administrator
deems necessary to ascertain the nature and extent of such a hazard. (See
the revised §3013 order guidance dated September 26, 1984.) Activities
the Region requires under a §3013 order should be consistent with monitoring
activities required for compliance with Part 270 and Part 264 requirements.
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Continued from Document 9504.02(84)
When a Part B is Not Yet Due, But There Are Interim Status Violations
In some cases, use of enforcement will be sufficient to ensure that the
owner/operator develops data adequate for the Part B. In cases where Part 265
will not provide usable or sufficient information for a Part B and where a
substantial hazard may exist, Regions should use §3013 to obtain data. When
compliance with Part 265 will not satisfy Part B requirements, and when the
Part B is due shortly, Regions may want to wait for the Part B due date and to
enforce Part 270 requirements.
Prompt enforcement of Part 265 violations may ensure development of adequate
GWM data to meet the Part B requirements for owners and operators who are
subject to, but have not complied with interim status ground-water monitoring
requirements. Where a Part 265 remedy is insufficient, and where a substantial
hazard may exist, authority under RCRA §3013 may be more appropriate to obtain
data. Enforcing the Part 265 requirements may be counter-productive when the
Part 265 remedy will not satisfy Part B requirements and the Part B will be due
shortly. In such cases, it may be more practical to wait for the Part B due
date and enforce the requirements of Part 270.
A variety of situations exist where applicants are not in violation of
Part 265, but the Part Bs do not contain adequate Part 265 data to address the
§270.14(c) requirements properly. Appropriate responses to these situations
vary. Further guidance will be developed regarding information-gathering
mechanisms pertaining to these situations.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOY 291964
MEMORANDUM
SUBJECT: Part B Permit Applications with Insufficient
Ground-Water Monitoring Data
FROM;
TO:
Lee M. Thomas
inistrator for^Solid Waste and
Emergency Response
Enforcement and
Courtney M. Price
Assistant Administrat
Compliance Monitoring
Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Air and Hazardous Materials Division
Directors, Regions I-X
BACKGROUND
Regional personnel have raised questions as to how to deal
with RCRA Part B permit applications containing insufficient
ground-water monitoring (GWM) data. (This includes hydrogeological
data, specifications on well construction, sampling methodology,
past monitoring results, a-nd other aspects of ground-water
protection as required by 40 CFR §270.14(c).) The GWM data
submitted in Part 3s is often insufficient to satisfy the
informational requirements of §270.14(c). The failure of nany
facilities to generate appropriate _ GWM. ..data prior - to the Part: 3""""
due.date-has resulted in a number of incomplete Part 3s, as well
as complications and delays in the permitting process.
Part
the
spec
faci
addr
of t
GWM
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While general guidance on responding t
B applications is set out in a nemo da
deficiency of a Part 3 with respect to
ial case. This type of deficiency is c
lity's failure to comply with Part 265
essed (or if detected early can be avoi
he Part 265 requirements. Further, Par
data are often submitted by facilities
resenting substantial hazar
.--i,
to
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through ground-water contamination. If Orders issued under RC3A
S3013 are used to require such facilities to gather appropriate
ground-water data, that data may also satisfy the Part 270 informa-
tional requirements and thus ensure that such facilities submit
adequate Part Bs.
The purpose of this memorandum is to provide EPA Regional
Offices with guidance on which mechanisms can be used to prevent
GWM deficiencies in Part Bs, and to discuss what mechanisms are
available to respond to deficiencies when they occur.
This memorandum was prepared before RCRA reauthorization, and
therefore does not reflect the new provisions regarding ground water
protection or permitting. Guidance on implementation of those
provisions will be provided separately.
I. GWM Information Needed in _Part Bs
Section 270.l4(c) lists the requirements for GWM information
in Part Bs. In essence, the permit applicant must characterize
the uppermost aquifer, describe any existing contamination, and"
provide all information necessary for EPA to establish either a
detection, compliance, or corrective action program in the
facility's permit.
Data generated during a facility's interim status period may
or may not fulfill the Part B information requirements. In general
if a facility has fully complied with the GWM requirements of Part
265, including well placement, sampling . frequency, and sampling
methodology, the results of interim status monitoring should be
deemed conclusive evidence of the presence or absence of contami-
nation. In a majority of cases, however, facilities have net
complied fully with 265 requirements. This category includes
facilities which* have installed only three dcwngradient wells,
where a minimum of four or more is necessary to meet_'the standard
of §265.91. Facilities which have not fully complied with 265
requirements .may need to do substantially more wor*, in seme cases
including hydrogeological investigations and veil installations,
before they can successfully meet Part 270 requirements.
EPA's Permit Applicant's Guidance Manual for Hazardous Waste
Land Treatment, Storage, and Disposal Facilities, and the RCP.A
Permit Writers' Manual for Ground-Water Protection, provide
descrioticns of scecific information needed from aos 1 icar.ts.
Prior to or upon calling in a facility's Part 3, Regional
personnel should examine any available interim status data fr~-,
the facility, and determine what additional data the facility Tust
generate in order to produce a complete Part 3. This determir.at icr.
should be coordinated with the joint permit writer/inspector site
visit conducted when the .Part B is called in. This initial.review
of the facility, and early setting of expectations by EPA, is
essential to expediting the Part 3 process.
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If EPA makes clear to the facility what types of data are
expected in the Part B, and the initial Part B does not provide
this data, the Region should respond in accordance with.the
"Late and Incomplete Part B Policy". In such cases, conservative
deadlines should be set for the facility's response to a Notice
of Deficiency.
It should be noted that §270.14(c) requires more and different
GWM data than does Part 265. In particular, § 270.14(c)(2) and
(4) to require facilities to investigate hydrogeological conditions
at the site, including any plume of contamination that has entered
ground water from a regulated unit at the facility. In addition,
in order to satisfy §270.14(c)(6) - (8), facilities must provide
information to support a determination of whether hazardous
constituents (i.e., compounds listed in Part 2'61 Appendix VIII)
are present in the ground water. Regional personnel should"
explain to facility owners and operators as early as possible
what kinds of data (e.g., pieziometric, resistivity, pump-test,
sampling for Appendix VIII compounds, etc.) will be necessary to
meet the Part B requirements.
Clearly, the exact type and extent of testing and information
gathering will vary considerably from facility to facility due to
such site-specific factors as geology and contaminant behavior.
Also, as a technical matter, Regional personnel initially may not
know exactly what types of data gathering are necessary from each
facility. Experience has shown that initial ground-water
investigations often uncover problems which require further
investigations. Even under the best conditions of Regional
attention to facility Part 3 preparation, applicants may have to
submit several Part B documents before the apolication can be
deemed adequate. Although we understand that some delays of this
nature are inevitable, certain delays can be avoided through -early"
involvement between the Regions and .applicants.
.1.1.- Facilities for which the Part 3 Due Date U35 Passed
In general, the most appropriate response to a facility
that has submitted an incomplete or inadequate Part 3 is
enforcement action under RCRA §3CQ3. The action should cite
violations of 40 CFR Part 270. The "RCRA Civil Penalty Policy"
should be used to determine appropriate penalty a.r.cunts.
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III. Facilities for which the Part B.is Not Yet Due, ar.d where a
Hazard May Exist
Some facilities with significant deficiencies in- Part 265
ground-water data may also be presenting hazards to human health
or the environment through ground-water contamination. EPA's
authority under RCRA §3013 can be used to gather data at
facilities for which the Administrator determines that the
presence or release of a hazardous waste may present a substantial
hazard to human health or the environment. A §3013 Order may be
used to require such monitoring, testing, analysis and reporting
as the Administrator deems reasonable to ascertain the nature.
and extent of such a hazard. Revised Guidance on writing S30L3
Orders was issued on September 26, 1984, and supersedes previous
Guidance.
Data generated by facilities in response to §3013 Orders
could be used to satisfy Part B informational requirements.
Therefore, activities required by §3013 Orders should be consistent
with monitoring activities required for compliance with Part -
270, as well as with Part 264 requirements that will be applied
in the future.
IV. Facilities for which the Part B is Not Yet Due, and which
are in Violation of Interim Status Standards
A major category of GWM deficiencies involves owners and
operators who are subject to but have not complied with interim
status ground-water monitoring requirements in Part 265. There
are a variety of Part 265 violations at facilities, ranging frcn r.o
monitoring wells in place to inappropriate -sampling techniques.
The result may be insufficient data from which the facility can
respond to §270.14(c).
In some cases, .p-rompt-enforcement of Part 265 violations may
be"sufficient to ensure the development of ac'-tjuate GWM data to
meet the Part 3 requirements. For instance, :: the Part 255
violation is an insufficient number of monitoring wells, the
.specified remedy (installing additional wells nay be sufficient
to provide data for the §270.14(c) requirement; for information
regarding possible ground-water contamination and for a proposed
well network.
Alternatively, where a Part 265 remedy wi.ll not provide usao.-•;
or sufficient information to satisfy a Part 3 requirement, ar.d
where a substantial hazard may exist, it may be mere appropriate
to use EPA's broader authority under RCRA §3013 to obtain data.
Also, where a Part 265 remedy'will not satisfy Part 3 requirements
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and the Part B will be due shortly, enforcing the Part 265
requirements may be counterproductive. In that case it may be
more practical to wait for the Part B due date and enforce the
requirements of Part 270. Of course, it is generally appropriate
to assess penalties for past violations of the Part 265 requirements
regardless of whether future compliance with Part 265 is sought.
V. Facilities Not Currently in Violation of Interim Status GW*
Standards •»
There is a range of situations where an applicant is not in
violation of Part 265, but has not generated complete Part 265
data either. These facilities' Part Bs do not include enough
Part 265 data to address the §270.14(c) requirements properly.
This category of facilities includes:
0 neutralization surface impoundments;
0 facilities operating under a S265.90(c) waiver which
was not evaluated by EPA or an authorized state;
0 facilities located in states which prohibited
well installation prior to state approval, and the state
issued its approval late (or has not yet done so); and
0 facilities in early stages of Part 265 ground water
"assessment", and where contamination data is not yet
available.
In addition, new facilities often present little or no
existing data from which to evaluate compliance with §270.14(c).
The foregoing are complex situations and the appropriate
response may vary. We intend to develop further guidance on the
information-gathering mechanisms that may be applicable to
these categories. As mentioned in Section I of this memorandum,
Regional personnel should notify facilities as early as possible
prior to or upon calling in their Part Bs (or upon knowledge of
a planned new facility submi'ttal) of the types of data that must
be submitted in the Part B in order to satisfy §270.14(c).
These informational requirements should be fur-.her clarified
during the EPA joint permit writer/inspector s-.te visit wher. the
Part B is called in.
cc: John Skinner
Fred Stiehl
Gene Lucero
Tony Montrcne
Bruce Weddle
Jack Lehman
Eileen Claussen
Peter Guerrero
Ken Shuster
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