&EPA
UnitM
Environment*) P»o««etion
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DIRECTCVE NUMBER: 9476.00-18
TITLE: Guidance on Demonstrating Equivalence of Part
265 Clean Closure with Part 264 Requirements
APPROVAL DATE: 5/12/89
EFFECTIVE DATE: 5/12/89
ORIGINATING OFFICE:
S FINAL
D DRAFT
STATUS:
office of solid waste
t
[ ]
] A- Pending OMB approval
] B- Pending AA-OSWER approval
t ] C- For review &/or comment
f ] D- In development or circulating
REFERENCE (Othtf dOCunwnU): headquarters
£ DIRECTIVE DIRECTIVE D
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&EPA
3 Statn enwonmental Protection Agency
Washington. DC 20460
O5WL-.tl L trective Initiation Request
1. Directive Number
9476.00-18
2. Originator Information
Mame of Contact Person
Les Otce
Mail Code
Office
OS-321
OSW
3. Title
Telephone Code
(202) 475-8860
Guidance on Demonstrating Equivalence of Part 265 Clean Closure with
Part 264 Requirements
4. Summary of Directive (include brief statement of purpose)
This Policy Directive provides guidance to Regional RCRA permits staff on procedures
for the reviev and approval of clean closure equivalency demonstrations as required
by the December I/ 1987, Codification Rule (52 FR 45788).
Closure / Equivalency / Interim Status / Land Dispoal / Guidance / Hazardous Waste
a. Does This Directive Supersede Previous Directive(s) •.
Yes What directive (number, title)
t>. Does It Supplement Previous Directive(s)?
Yes What directive (number, title)
7. Draft Level
A - Signed by AA/DAA
6 - Signed by Office Director
C - For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
XX
Yes
No
This Request Meets OSWER Directives System Format Standards.
9. Signature of lead Office Directives Coordinator I -fl 1 "?V*IL / j
Jennifer A. Barker/ Office of Solid Waste
1 0. Name and Title of Approving Official
Sylvia K. Lowrance, Director, Office of Solid Waste
Date
1/30/89
Date
5/12/89
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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MAY I 2 1989 OSWER Policy Directive # 9476.00-18
MEMORANDUM
SUBJECT: Guidance on Demonstrating Equivalence of Part 265 Clean
Closure with Part 264 Requirements
FROM: Sylvia Lowrance, Director V A ^ y-i.-(^_
Office of Solid Waste -£>/u ^ ^
TO: Regions I-X
I. PURPOSE
This memorandum provides guidance to Regional RCRA permits
staff concerning the review of Part 264 equivalency
demonstrations for interim status surface impoundments and waste
piles that certified clean closure under the Part 265 standards
prior to March 19, 1987. The Agency discussed the requirements
for submitting equivalency demonstrations in the preamble to the
December I, 1987, Codification Rule (52 £B 45788). This
memorandum expands upon that discussion by providing further
guidance on the Agency's expectations for the review and approval
of these demonstrations.
II. AUTHORITY
Section 3005(i) of the Hazardous and Solid Waste Amendments
of 1984 (HSWA) requires all landfills, surface impoundments,
waste piles, and land treatment units that received waste after
July 26, 1982, to comply with the ground-water monitoring,
unsaturated zone monitoring, and corrective action requirements
applicable to new units. EPA implemented this provision in the
December 1, 1987, Codification Rule. 40 CFR Section 270.l(c)
requires that units which received waste after July 26, 1982, or
which certified closure after January 26, 1983, obtain a post-
closure permit unless they successfully demonstrate compliance
with the Part 264 requirements for closure by removal.
III. CLEAN CLOSURE REQUIREMENTS UNDER PARTS 264 AND 265
Prior to March 19, 1987, the Part 265 regulations governing
interim statue clean closures differed significantly from the
Part 264 requirements pertaining to permitted units. In March of
1987 (52 FR 8704), the Agency issued conforming changes to the
Part 265 regulations to bring them into cbnformance with the Part
264 requirements.
A. Part 264 Clean Closure Requirements
The Part 264 provisions (§§ 264.228 and 264.258) require the
owner/operator to "remove or decontaminate all waste residues,
contaminated system components (liners, etc.), [and] contaminated
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subsoils..." The Agency interprets the terms "remove" and
"decontaminate" to mean "...removal of all wastes and liners, and
the removal of all leachate and materials contaminated with the
waste or leachate (including ground water) that pose a
substantial present or potential threat to human health or the
environment" (52 FR at 8706). To meet this standard,
owner/operators must demonstrate that no Part 261 Appendix VIII
constituents remain in the soils, vadose zone, or ground-water
above Agency-recommended limits before certifying clean closure.
These Agency-approved limits or factors include water
quality standards and criteria, health-based limits based on
verified reference doses (RfDs) and Carcinogenic Potency Factors
(CPFs), or site-specific Agency-approved health advisories (52 FR
at 8706).
When assessing potential exposures to constituents released
from the unit, the owner /operator must establish the points of
compliance directly at or within the unit boundary for all routes
of exposure (surface water contact, ground-water ingestion,
inhalation, direct contact, and soil ingestion). In setting
these points of compliance, consideration of contaminant
attenuation between the unit and potential exposure points is not
allowed.
Further discussion of these requirements is provided in the
preamble to the March 19, 1987, conforming changes regulation (52
FR 8704), and in a subsequent Notice of Clarification issued on
March 28, 1988 (53 FJJ 9944). Pending the up-coming issuance of
the clean closure guidance mentioned in the March 19, 1987,
preamble, these two sources provide the fullest interpretation of
Agency policy concerning the requirements applicable to units
undergoing clean closure.
B. Previous Part 265 Interim Status Clean Closure Requirements
The pre-1987 Part 265 interim status clean closure
requirements differed from the Part 264 requirements in several
significant ways. First, these standards allowed owner/operators
to discontinue removal activities and certify closure if they
were able to demonstrate that residuals associated with the unit
were no longer hazardous. This provision allowed owner/operators
of surface impoundments containing solely characteristic wastes
to meet the clean closure standard by demonstrating that wastes
no longer exhibit the characteristic that first brought the
impoundment under regulatory control. In this.situation,
owner/operators could have clean closed without evaluating the
presence of additional Appendix VIII constituents that could pose
a threat to human health or the environment.
Secondly, the interim status ground-water monitoring
requirements applicable to these units only required
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owner/operators to monitor for indicator parameters and hazardous
waste constituents for which a waste was listed. Owner/operators
did not have to demonstrate that all Appendix VIII constituents
that could pose a threat to human health or the environment had
been removed in order to certify clean closure.
Finally/ interim status facilities were not required to
demonstrate that all releases of Appendix VIII constituents to
soils, surface water, air, or ground water posing a threat to
human health or the environment had been removed at closure.
IV. EQUIVALENCY DEMONSTRATION INFORMATION REQUIREMENTS
A. General Information Requirements for Equivalency
Demonstrations
40 CFR Section 270.l(c) now affords owner/operators who
closed under the Part 265 requirements the option of
demonstrating that the units had actually been closed in
accordance with the Part 264 requirements, by submitting an
"equivalency demonstration". This equivalency demonstration is
outside the Part B post-closure permit application and review *
process. The Agency expects owner/operators to submit sufficient
information in their equivalency demonstrations to allow the
Agency to determine whether the clean closures fully comply with
the Part 264 requirements. The Agency does not intend, however,
that owner/operators submit the same quantity of information
required when submitting full Part B permit applications.
The demonstration submitted by the owner/operator must
include, at a minimum, sufficient information for identifying the
type and location of the unit, the unit boundaries, the waste
that had been managed in the unit, and the extent of waste and
soil removal or decontamination undertaken at closure. Relevant
ground-water monitoring and soil sampling data should also be
submitted to demonstrate that any Appendix VIII constituents
originally in the unit and that remain at closure are below
levels posing a threat to human health and the environment.
These levels are those discussed in the March 28, 1987 preamble,
i.e., water quality standards and criteria, health-based limits,
carcinogenic potency factors, or ATSDR site-specific Agency-
approved advisories (52 FR at 8706).
Owner/operators can submit information demonstrating that
the closure certified under Part 265 complies with the Part 264
standards using existing data developed at the time of closure.
If insufficient data are available to support this demonstration,
owner/operators may collect new data to demonstrate that the Part
265 clean closure meets the Part 264 clean closure requirements
that were in effect at the time of closure. If upon review, the
Agency determines that the closure does not meet the Part 264
standards, the owner/operator will be required to submit a Part B
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permit application containing all the applicable information
required in Part 270, including ground-water monitoring
information.
B. Acceptability of Specific Information Supporting Equivalency
Demonstrations
Five potential issues concerning the acceptability of
specific kinds of data used in an equivalency demonstration have
been identified. These issues are discussed below.
1. Acceptability of Previously Collected Data
Many facility owner/operators will have generated
considerable amounts of data during their original closure
activities. To the extent that these data represent the
conditions at closure and provide sufficient information to
determine compliance with the Part 264 requirements, they may be
used to support an equivalency demonstration. Regional staff
should evaluate the information for the extent to which it
fulfills the requirements of Part 264, and for its overall
quality, reliability, and accuracy.
While previously collected data may be used, in many cases
owner/operators will need to collect some additional information
on hazardous constituents that may remain in the soils, vadose
zone, or ground water to demonstrate equivalency.
2. Use of Existing Soil and Ground-Water $g|fflpljna Data as
Proxies for Missing Data
The Agency believes that in limited cases owner/operators
may use existing soil and ground-water sampling data as proxies
for missing data. In the first case, soil sampling data can
serve as a proxy for ground-water monitoring data when these are
not available. In the second case, ground-water monitoring data
can be used to demonstrate the acceptability of a soil or vadose
zone cleanup. In such cases, the Agency may consider these data
when reviewing equivalency demonstration*. For example, some
owner /operators may wish to use previously collected soil
sampling data as a surrogate for actual ground-water sampling
data in order to demonstrate compliance with the Part 264 ground-
water clean closure levels, or facility owner/operators may wish
to demonstrate that soil contamination was remediated
sufficiently by submitting ground-water monitoring data
demonstrating no migration of contaminants from the soil. It is
more likely that EPA will accept soil sampling data as a proxy
for ground-water monitoring data than the converse. One such
example of where soil sampling and vadose zone data might be used
as a surrogate for ground-water sampling data is in a
hydrogeologic setting where the water table is located at
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5
significant depths from the surface or where ground-water
monitoring is not feasible.
Demonstrations using soil sampling data will, however,
generally require assumptions of contaminant fate and transport
in the relevant subsurface media. As stated in the preamble to
the March 19, 1987, conforming changes rule, the Agency does not
believe it is appropriate to consider assumptions about
subsurface attenuation when approving clean closures, given the
uncertainty involved in such assumptions and the fact that all
further regulatory control ends upon certification of the
closure.
3. Requirement for Full Appendix VIII Sampling
The Part 264 clean closure standards require a demonstration
that all Appendix VIII constituents originally in the unit have
been removed or decontaminated. As with the 40 CFR Section
264.93 monitoring requirements, however, the Agency believes that
it may be possible to exclude some hazardous constituents from
consideration based on knowledge of past activities at the unit.
Equivalency demonstrations that consider all the hazardous
constituents that may reasonably be expected to be in or derived
from the wastes managed in the unit may be acceptable in lieu of
the full list of Appendix VIII constituents.
The Regions may decrease the list of constituents that must
be evaluated to the extent that information submitted by the
owner/operator is complete relative to the wastes disposed and
demonstrates that these constituents could not reasonably be
present in environmental media affected by the unit. In
evaluating such demonstrations, Regions should also evaluate
closely the potential that additional Appendix VIII constituents
may be present in the soils or ground water beneath the unit.
4. Use of Data from Previously Existing Ground-Water
Monitoring Systems
The Agency will consider equivalency demonstrations based on
data from previously existing ground-water monitoring systems
provided such ground-water monitoring systems were in compliance
with the applicable requirements. At a minimum, such systems
must have met the Part 265 Subpart F ground-water monitoring
requirements. To the extent that these systems were located,
screened, and operated properly to gather representative ground-
water information, the Agency believes that they can be used to
support an equivalency demonstration. In order to determine
whether monitoring systems were in compliance with Part 265,
Regions should examine available records and documents, such as
old inspection reports, enforcement records, CME reports, or
Ground-Water Task Force reports.
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5. Pyacti-e«bili.tv of Obtaining New Data
Some facilities will have certified clean closure several
years ago, and subsequently may have constructed structures on
top of clean closed units, making it difficult to obtain new data
for the equivalency demonstration. For example, a building with
a concrete floor or wastewater treatment unit constructed on top
of a clean closed hazardous waste management unit could obstruct
the collection of new sampling data. Collecting new soil or
ground-water data at such a site might require either drilling
through the concrete floor of the building or using angled
drilling techniques.
The Agency recognizes the difficulties associated with data
collection in these cases. In reviewing the quantity of such
data submitted, the Regions may consider the technical
difficulties involved in collecting such data. The standard of
protection against which equivalency demonstrations will be
evaluated will not, however, be different depending on the
technical difficulties of data collection.* Accordingly, the
Agency will require owner/operators to submit representative
existing data and/or to collect those data necessary to
demonstrate compliance with the Part 264 requirements.
V. APPLICABILITY TO LANDFILLS
EPA interprets its regulations to allow landfills from which
wastes have been removed at closure to accomplish "clean closure"
and, if closed under 40 CFR Part 265 standards, to allow an
equivalency demonstration to be made under 40 CFR Section
270.1(c)(5) and (6), through redefinition of the landfill as a
waste pile, surface impoundment, or land treatment unit. It is
most likely that the redefinition, or change in process, will be
to a waste pile, pursuant to 40 CFR Section 270.72(c). Clean
closures or demonstrations of equivalency with clean closure, are
governed by the applicable Part 264 closure requirements (e.g.,
40 CFR Section 264.258 for waste piles).
As an alternative to making an equivalency demonstration
pursuant to 40 CFR Section 270.l(c)(5), the owner/operator of a
landfill froa which all waste has been removed and for which the
owner/operator can provide evidence that the level of
contamination is such that it no longer poses a threat to human
health and the environment, may request that the Regional
Administrator shorten the post-closure care period [40 CFR
Section 264.117(a)(2)(i)]. The term of the post-closure permit
should then be modified to a minimal period in accordance with 40
CFR Section 270.42.
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VI. CONTENTS OF THE EQUIVALENCY DEMONSTRATION AND PROCEDURES FOR
SUBMITTAL
No specific format for an equivalency demonstration is
required. For ease of review, the Agency suggests that
equivalency demonstrations include three basic sections: 1) a
Unit Description, 2) a Description of Closure Activities
Conducted, and 3) a Demonstration of Compliance with Clean
Closure Levels.
The first section, Unit Description, should provide
information on the size and location of the unit, the wastes
managed by the unit (EPA hazardous waste numbers and quantities),
any liner system and leachate collection system, containment
system, and run-on and run-off control systems. In addition,
owner/operators should present a description of the hydrogeology
of the immediate area, including descriptions of ground-water and
soil conditions, ground-water monitoring systems, detection
programs, and any corrective action activities undertaken. For
land treatment units, information concerning application rates
should also be included.
The second section, the Description of Closure Activities
Conducted, must identify, in detail, all removal and
decontamination activities completed at the unit during closure.
This description should include information on the quantity of
waste. removed (by waste type), the quantity of leachates and
contaminated containment liquids removed, the quantity of bottom
sludges/residues removed, the quantity of contaminated soil
removed, the methods used for removal of inventory (i.e., waste,
sludge, residue, liquid, and soil), and the procedures used for
decontaminating and/or disposing of inventory. Specifically, the
description of the decontamination and disposal activities should
identify the method of decontamination of equipment/structures,
the treatment or disposal of cleaning agents/rinsewater, and the
demolition and removal of containment systems (e.g., liners,
dikes) and other equipment/structures.
The previously approved closure plan should provide the
majority of the descriptive material required for sections 1 and
2 of the demonstration. The owner/operator should not assume
that the closure plan has been retained by the Agency; relevant
portions of the plan should be resubmitted. A copy of the
closure certification should also be provided.
The third section, Demonstration of Compliance with Clean
Closure Levels, should present sampling data supporting the
owner/operator's equivalency demonstration. This section should
specify where samples were taken in each relevant medium, when
the samples were taken, what parameters were examined, and the
analytical results. The information should specify the sampling
protocols and analytical methods used during the sampling
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activities, along with available quality assurance/quality
control information. The raw sampling data should be presented
in an appendix to the report, while the results should be
summarized in a clear manner in the body of the report. In cases
where surrogates or proxies are proposed for use, the
owner/operator should fully explain the reason for the use of
such proxies and any analytic assumptions which were made. Where
data from all Appendix VIII constituents are not submitted/
section 2 of the submission should support the assertion that
such constituents were not and are not present in the unit.
Finally, the demonstration should include a narrative
discussion summarizing both the results of previously collected
data and new data collected for this demonstration. In the
conclusion, the section should compare the results of sampling
data to the applicable clean closure levels for the relevant
parameters.
The December l, 1987, Codification Rule presented procedures
and timeframes for the submittal, review, and approval of
equivalency demonstrations. The timeline presented below
summarizes the critical dates and activities that must be
followed by owner/opera tors and the Agency upon receipt of an
equivalency demonstration.
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