United States
            Environmental Protection
            Agency
            Solid Waste And
            Emergency Response
            (OS-343)
October 1989
?/EPA
Implementing The Land
Disposal Restrictions

Question and Answer
Document

                                      Print-id on Rocyclad P

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                                    PREFACE
      This document provides answers to some of the most frequently asked questions on
implementing the land disposal restrictions (LDRs). The questions were compiled from training
sessions conducted in  the  EPA  Regional Offices during late 1988.  The answers  in this
document reflect the  implementation  of the  land  disposal  restrictions program  as  of
September 1, 1989.

      For additional information on various  aspects  of implementing the land disposal
restrictions, you should contact the following EPA offices:

      Overview of the Land Disposal Restrictions:

             Land Disposal Restrictions Branch, Office of Solid Waste (OSW)
             202-382-4770

      No Migration  Petitions:

             Assistance Branch,  OSW
             202-382-4206

      LDRs and Permitting:

             Permits Branch,  OSW
             202-382-4740

      Enforcing  the LDRs:

             Technical Assistance and Training Branch, Office of Waste Programs Enforcement
             202-475-9320

      Closure, Corrective Action  and the LDRs:

             Permits Branch,  OSW
             202-382-4740
                                 September 1, 1989

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                           TABLE  OF CONTENTS


                                                                             Page

Introduction	  iv

SECTION 1

Overview of the Land Disposal Restrictions	   1.1

      Waste Specific Issues	   1.4
      Testing	  1.12
      Variances and Extensions	  1.13
      LDRs and Soil & Debris Wastes	  1.16
      LDRs and Ground Water	  1.18
      Other Questions on the LDR Program	  1.19

SECTION 2

No Migration Petitions  	   2.1

      Processing a No Migration Petition	   2.1
      Owner/Operators and No Migration Petitions	   2.3
      Current Agency Activities Related  to No Migration Petitions	   2.4

SECTION 3

The LDRs and Permitting  	   3.1

      LDR Permit Conditions  	   3.1
      Waste Analysis Plan	   3.2
      New Permit Modification Procedures	   3.3
      Changes in Interim Status - The Christmas Tree Rule  	   3.5
      Generators and Interim Status	   3.6
      State  Authorization	   3.7

SECTION 4

Enforcing the LDRs  	   4.1

      General Issues Concerning Notifications, Certifications,
      and Demonstrations	   4.2
      Soft Hammer Notifications, Certifications, and Demonstrations	   4.2
      Generator LDR Inspections  	   4.4
      Treatment, Storage, and Disposal Facility (TSDF) Inspections  	   4.6
      Enforcement Assistance  	   4.6


                                 September 1, 1989

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                                     - Ill -
                   TABLE OF CONTENTS  (CONT'D)

                                                                        Page
SECTION 5
Closure, Corrective Action, and the
Land Disposal Restrictions  	   5.1

      Concept of "Placement"  	   5.1
      LDRs and Closure 	   5.5
      LDRs and Corrective  Action	   5.6
      Site-Specific Variances and Extensions	   5.8
      Soil and Debris Treatability Variances	   5.9
                              September 1,  1989

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                                        - IV -
                                 INTRODUCTION
       The Hazardous and Solid Waste Amendments (HSWA) prohibit the land disposal of
specified RCRA hazardous wastes beyond statutory dates established by Congress unless (1)
the wastes are treated to a level or by a method specified by EPA, (2) it can be demonstrated
there will be no migration of hazardous constituents from the land disposal unit for as long as
the wastes remain hazardous, or (3) the wastes are subject to an exemption or variance from
meeting the treatment standards.  This program is called the Land  Disposal  Restrictions
(LDRs).

       Restricted wastes are defined under the LDRs as  RCRA hazardous wastes (i.e.,  RCRA
listed or characteristic wastes) for which the statutory date has passed.  Such wastes must be
treated to  promulgated treatment standards (or, for certain wastes, comply  with the "soft
hammer" provisions)  before being land disposed.

       Land disposal as  defined under RCRA 3004(k) includes,  but is not limited to, any
placement  of hazardous waste in a landfill,  surface  impoundment, waste pile, injection well,
land treatment facility, salt dome formation, salt bed  formation, or underground mine or cave.
The November 7, 1986, LDR rule added to this definition the placement of waste in a concrete
bunker or vault intended for disposal (see 51 FR 40572). For the purpose of the LDRs, land
disposal and placement are synonymous; land disposal of waste is the same as placement of
waste  in a  land disposal unit.

SCHEDULE FOR RESTRICTED WASTES

       The land disposal restrictions contained in  RCRA 3004 and 40 CFR Part 268 will
eventually apply to all RCRA hazardous wastes.   In the  statute,  Congress divided  RCRA
hazardous wastes into three groups and specified dates by which treatment standards for each
must be established by EPA.  These groups and their statutory deadlines are -

             Solvent-  and dioxin-containinq wastes. RCRA hazardous wastes
             F001-F005  (spent solvents)  and  F020-F023  and  F026-F028
             (dioxins) [November 8, 1986];

             California list wastes, all RCRA listed and characteristic wastes
             that contain specific hazardous constituents1 in concentrations
             exceeding statutory prohibition levels [July 8, 1987].  A California
             list waste must:

             -      Exceed statutory prohibition levels or  have a pH
                    less than or equal to two;  and
    1 These hazardous constituents are PCBs, halogenated organic compounds (HOCs), corrosive
wastes, free cyanides, and the following metals: arsenic, cadmium, chromium VI, lead, mercury, nickel,
selenium, and thallium.
                                  September 1, 1989

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                                         - V -
              -     Be a listed or characteristic RCRA hazardous waste;
                    and

                    Be a liquid,   except  for halogenated  organic
                    compounds (HOCs), which may be California list
                    wastes in solid form.

             Scheduled hazardous wastes, which are subdivided into three
              groups referred  to as the "First Third" (August 8, 1988), "Second
              Third" (June 8,  1989), and 'Third Third" (May  8, 1990), wastes.
              The assignment of waste to one of these subcategories is based
              on the waste's intrinsic hazard  and volume. Generally, the wastes
              with the highest volume and/or highest toxicity were included in
              the First Third rulemaking.2

       On the statutory deadline for each waste group, the waste is considered "restricted."
At this time, one of the following restrictions will apply to the waste:

             Treatment standards  - EPA will set  a concentration level  to be
              met or a method of treatment (i.e., technology) to be  used for that
              waste prior to disposal.

             National capacity extension - If EPA sets a treatment standard for
              a waste,  but finds that insufficient capacity exists nationwide to
              treat the waste to that standard, the Agency may grant a national
              capacity  extension for the waste.    During the  period of the
              extension, if the  waste is disposed in a landfill  or surface
              impoundment, the unit must  meet (or  be equivalent to)  RCRA
              minimum technology  requirements.

             Soft hammer - If EPA fails to set a treatment standard for a First
              or Second Third waste by the statutory deadline, soft  hammer
              restrictions apply.  If treatment is practically available, the  waste
              must be treated with the treatment yielding the most environmental
              benefit.   The soft  hammers  also require that if the waste is
              disposed in a surface  impoundment or landfill, that unit must meet
              (or be equivalent to) minimum technology requirements.

             Hard hammer - If EPA fails to set a treatment standard by the
              statutory  deadline  for other than First or Second Third wastes
              (which are subject to "soft hammer" provisions until May 8,1990),
              hard hammer restrictions apply. The hard hammer prohibits all
              land disposal of the affected waste.
       2  This question  and answer document only addresses questions  on solvent-and dioxin-
containing, California list, and First Thirds wastes.  The Second Third Rule was recently promulgated
(54 FR 26594, June 23, 1989) but is not addressed in this document.
                                  September 1, 1989

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                                         - VI -
       In addition to these restrictions, the LDRs specify that all restricted wastes must comply
 with the dilution and  storage prohibition, waste analysis and  recordkeeping requirements,
 notification and certification requirements, and all  other applicable  Part 268 requirements.
 These requirements are described in  greater detail later in this summary.

 TREATMENT STANDARDS

       Treatment standards set by the Agency under the LDRs are based on the performance
 levels of the best demonstrated available technologies (BOAT).

       The LDR treatment standards may be expressed as:

             Constituent concentration levels;

             Specified technologies; or

       -     No land disposal.

       To date, most treatment standards are  expressed as constituent concentration levels,
 and compliance with the LDRs is achieved by meeting the numerical  performance standards
 established for  each constituent.  Impermissible dilution, as described under 40 CFR 268.3,
 may not be used to meet the applicable concentration level. Treatment standards have been
 expressed as a specified technology for California list PCB wastes and HOCs. The "no land
 disposal  standard"  was  established  for  several  First Third  wastes.  This standard was
 reinterpreted in  a subsequent rulemaking (54  FR  18836, May 2, 1989) to refer only to non-
wastewater forms of certain First Third wastes disposed after August 8, 1988, or generated in
the course of treating wastewater forms of the waste.  After a treatment standard is met, the
waste and its residuals remain subject to Subtitle C regulations.

SOIL AND DEBRIS WASTES

       Congress and EPA have granted certain exemptions from the LDRs for soil and debris
wastes from CERCLA 104 and 106 actions and from RCRA corrective  actions.  These
exemptions are  summarized below.

             Solvent- and dioxin-containinq and California list wastes

                   November 8,1988, is the statutory deadline established by HSWA
                   for soil and debris generated from sources other than CERCLA
                   response actions or  RCRA corrective actions contaminated with
                   spent solvents, wastes that contain less than one percent total
                   solvents, certain dioxin-containing wastes, solvent wastes from
                   small  quantity  generators  (100-1000 kg/month), and certain
                   California list wastes.
                                 September 1, 1989

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                                        - VII -
                    The statutory deadline for solvent and dioxin contaminated soil
                    generated  by a CERCLA response action  or RCRA corrective
                    action was November 8, 1989.  EPA granted a national capacity
                    extension  for  these  contaminated  soils  and  debris  until
                    November  8, 1990.

                    July 8, 1989, is the deadline established by a national capacity
                    extension for  soil and debris contaminated with  California list
                    HOCs not  from CERCLA response actions or RCRA corrective
                    actions.
             First Third wastes
                    Congress provided no such alternative statutory deadline for soil
                    and debris generated from CERCLA response  actions or RCRA
                    corrective actions contaminated with  First  Third wastes.  The
                    deadline for these wastes is August 8, 1988, the same date on
                    which treatment standards for certain First Third wastes also took
                    effect.

                    EPA  granted  a  capacity  extension  for  soil  and  debris
                    contaminated  with First  Third wastes  for which the  treatment
                    standards are based on incineration (e.g., K001 wood preserving
                    wastes).   This  extension   applies   to  all  soil  and  debris
                    contaminated with a First Third waste meeting this condition. The
                    effective date for these soil and debris wastes is August 8,  1990
                    (see 40 CFR 268.33).
EXEMPTIONS AND VARIANCES FROM THE LDR  STANDARDS

       Congress and EPA recognized that not all wastes  can meet applicable treatment
standards.   RCRA, therefore, allows the use  of certain options to meeting the  restrictions
discussed above. These options, and their regulatory citations, include:

       -     Variance from the treatment standard  (see 40 CFR 268.44);

             Equivalent treatment method petition (see 40 CFR 268.42);

       -     No-migration petition  (see 40 CFR 268.6); and

             Delisting of the hazardous waste (see 40 CFR 260.20 and .22).
                                  September 1,  1989

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                                         - viii -



OTHER  LDR REQUIREMENTS

       The LDRs also include the following requirements:

             Storage  prohibition (see 40  CFR  268.50)   -  The  LDRs prohibit the
              storage of restricted wastes (including soft hammer wastes), unless such
              storage is strictly for the purpose of accumulating sufficient quantities to
              facilitate  proper treatment, recovery, or disposal;

       .      Treatment in surface impoundments (see 40 CFR 268.4) - Treatment in
              surface impoundments meeting certain minimum technology requirements
              is permissible provided the treatment residues that do not meet treatment
              standards or prohibition levels are removed for subsequent management
              within one year of the entry of the waste into the surface impoundment;
              and

              Dilution prohibition (see 40 CFR 268.3) - Dilution of  a waste as
              a means to  comply with the LDRs is prohibited.

       In addition, the  LDRs contain requirements for testing, notification, certification  of
compliance, and recordkeeping (see 40 CFR 268.7), as follows:

             Testing - Generators must determine whether  their waste is restricted
             from land disposal either by  knowledge of  the  waste or by testing the
             waste.   Treatment  facilities  and land  disposal facilities disposing of
             restricted  wastes must test  their wastes according  to the  frequency
             specified in their waste analysis plans.

             Notification -  Generators of a restricted waste must notify the receiving
             treatment, storage, or  disposal facility of the waste composition, whether
             the waste is restricted, and the  appropriate treatment standard for the
             waste.   If the waste is sent  for further treatment, the initial treatment
             facility  must prepare such a notification for submittal to the subsequent
             treatment facility.

             Certification  -  The treatment facility must certify that  LDR treatment
             standards have been  attained before the waste  is land disposed.  If
             applicable, the generator must certify that the untreated waste meets the
             LDR treatment  standards as  generated,  therefore requiring no further
             treatment.

             Recordkeeping -  The generator, treatment facility, and the owner or
             operator  of any disposal facility accepting  any waste subject to LDR
             restrictions must maintain records of all notices and certifications for five
             years.
                                  September 1, 1989

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                                        - IX -
       Generators disposing of "soft hammer" wastes in a landfill or surface impoundment
must also prepare a demonstration that shows whether treatment is practically available for a
waste, and certify that treatment is or is not practically available (see 268.8).
                                  September 1, 1989

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                                  SECTION  1


        OVERVIEW  OF THE  LAND DISPOSAL RESTRICTIONS


BASIS FOR LDR TREATMENT STANDARDS

       HSWA specifies that EPA must set treatment standards for the LDR program.  The LDR
treatment standards and  other restrictions (e.g., soft hammers) only apply to solid wastes that
are RCRA hazardous wastes (i.e., those defined in  40 CFR  261 Subpart D) or to non-solid
wastes (e.g.,  soil  or water) that are contaminated by RCRA hazardous wastes.  The LDR
framework rule established that the basis for each treatment  standard shall be the treatment
possible with the best demonstrated available technology (BOAT) (see 51 FR 40572, November
8, 1986). The Agency defined each of these terms as follows:

             "Best" means technologies that yield the most effective results from well-
             designed and well-operated systems;

             "Demonstrated" means technologies that currently are in use on a full-
             scale (as compared to pilot-or bench-scale) basis; and

             "Available"  means available for lease or purchase.

       The Agency requires that restricted wastes be treated to meet the established treatment
standards unless the untreated waste at the point of generation contains concentrations of
constituents below the treatment standards.  Treatment residuals produced during a treatment
process (e.g., scrubber water) also must comply with the treatment standards before they  are
placed in a land disposal unit.   Compliance with the treatment standards  is  determined by
applying one of two tests:  a total waste analysis (generally used for organics), or the toxicity
characteristic leaching procedure (TCLP) (required for solvents and dioxins and generally used
for inorganics).

       After determining  treatment standards for restricted wastes, the Agency  determines
whether there is sufficient nationwide treatment capacity for the estimated volume of restricted
wastes.  If sufficient capacity  does not exist, the  Agency has the authority to issue a
nationwide capacity extension  of the effective date  for a waste.  This variance, which  the
Agency may only issue once for a given waste, may  extend for two years.

       BOAT  and Treatment

Q:     How were numeric LDR  treatment standards established?

A:     The Agency divided wastes into treatability groups based on waste characteristics and,
       for each group,  determined  the  BOAT.  Based  on the treatment achieved by well-
       designed and well-operated technologies specified as  BOAT, the Agency set numerical
                                 September 1, 1989

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                                          1.2
       treatment standards for constituents in the wastes, or, in certain cases, specified the
       BOAT method as the treatment standard.

 Q:    Is EPA  in the process of obtaining more data so that the treatment standards may
       eventually be revised?

 A:    In the future, EPA may consider revising promulgated treatment standards. It is unlikely
       that a major revision would occur before the Third Third rule is promulgated (i.e., May
       8, 1990).

 Q:    Why  is  it that, within  the  LDR program, treatment levels are sometimes specified,
       although, at other times treatment technologies are specified?

 A:     The Agency  prefers  setting treatment  levels   wherever  possible,  because  the
       effectiveness  of technology standards depends  on how  well  the technologies  are
       operated.  When EPA  lacks sufficient data to specify  a treatment level for a certain
       waste (e.g., there are no reliable  test methods), the Agency has specified a treatment
       technology as the treatment standard for that waste.

 Q:    Why does EPA set treatment standards based on some technologies that are  not
       available in sufficient capacity?

 A:     In general, EPA  bases its determination  of  "availability"  on whether the full-scale
       technology is available  commercially to treat the waste or a similar waste (as opposed
       to a patented process that could not be licensed outside of a firm).  The capacity issue
       is then addressed through a separate analysis of the amount  of  capacity available,
       leading to establishment of effective dates.

 Q:     Is BOAT based on EPA in-house  tests or on the sampling of industrial processes?

A:     EPA generally has conducted sampling at well-designed and well-operated industry
       systems to determine BOAT and  set the treatment standards.  In some cases, where
       industry-produced data reflect use of appropriate quality assurance procedures, EPA
       has used  industry-generated data to set standards.  EPA's  Office of  Research and
       Development has conducted testing for some treatment processes.

Q:     Must hazardous waste incinerator ash be treated to BOAT before it  is land disposed?

A:     If  the incinerated wastes are listed hazardous wastes, ash derived from those wastes
       remains a hazardous waste because of the "derived from" rule (see 40 CFR 261.3(c)(2)).
       If  the  wastes  are subject to the  LDRs, the  ash  must meet any numerical treatment
       standards before it is land disposed. If the treatment standard for the restricted waste
       is expressed as a method (i.e., incineration), ash from a properly operated incinerator
       requires  no further treatment.

Q:     Does treatment to reach the treatment  standard have to be by the BOAT technology?
                                  September 1, 1989

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                                          1.3
A:     As long as the treatment standard is not expressed as a specified technology, the
       owner/operator may use any technology that is not otherwise prohibited (e.g., dilution
       that is not a necessary part of treatment) to meet the treatment standard.  Problems
       would likely arise, however, if the treatment standard was based upon a destruction or
       removal technology and the owner/operator proposed to  use stabilization or some type
       of immobilization.  In this case, the  treated waste probably would  not achieve the
       numerical treatment standard measured by the required  total waste analysis, because
       the hazardous constituents in the waste would not have been removed or destroyed,
       but simply fixed in placed.

Q:     How are wastewaters defined?

A:     EPA  provides a dividing line below which wastewater treatment standards (based on
       wastewater treatment technologies) apply.  In the November 8, 1986, solvents rule,
       wastewater standards apply to those materials with less than one percent total organic
       carbon.  In the First Third rule, the Agency added the criterion  of less than one percent
       total  filterable (i.e., suspended) solids for First Third wastewaters.

Q:     Where can  the   Regions obtain  information  on the  different types  of  treatment
       technologies used to set the LDR treatment standards?

A:     The preambles to the final and  proposed First Third rules are a good place to start.
       In addition, there are  BOAT background documents for each waste code (reference in
       the back of the  rule or  available through NTIS).  More information  is available on
       obtaining these documents from the RCRA Hotline by phoning 800-424-9346.

       Capacity

Q:     The Treatment, Storage, Disposal and  Recycling (TSDR) survey, which the Agency uses
       to evaluate treatment capacity, indicates that stabilization capacity is readily available.
       Do the survey's findings take into account the capacity required for land disposal of the
       stabilized waste?

A:     Yes.  The  capacity survey does take into account the land disposal capacity for the
       stabilized waste.   The stabilization processes tested in setting  the  LDR  standards
       generally used from 20 to 50 percent stabilizing  agent  (e.g.,  cement) to waste.  The
       determination of landfill capacity needed took into account this added volume.

Q:     In the TSDR capacity survey, did  EPA count all  forms  of stabilization in determining
       available capacity?

A:     The survey only looked at pozzolanic stabilization relying on cement kiln dust and did
       not count other types of stabilization technologies.  Consequently, the survey actually
       understates total  stabilization capacity.

Q:     Are CERCLA and  RCRA  remedial and corrective action waste volumes included in the
       Agency's capacity studies?
                                  September 1, 1989

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                                          1.4
 A:     Relatively little data are available on the volumes from these actions. EPA did, however,
       consider all available data from these sites in making capacity determinations.

 Q:    Six mining  wastes were recently listed as RCRA hazardous wastes, and several others
       were proposed to be removed from the exclusion under the Bevill Amendment  (53 FR
       41288, October 20,  1988). Was the capacity required for treating such mining wastes
       considered in making determinations about effective dates?

 A:     Under  the  statute, EPA  is to set treatment standards for newly  listed and identified
       wastes within six months. Unlike listed and characteristic wastes, however, no hard
       hammers apply to newly listed wastes.  The  Agency is in the process of establishing
       priorities for setting  standards for these and  other newly listed wastes.  Until more is
       known of the timing for these  standards, EPA  will not  take the newly listed waste
       volumes into account in  capacity determinations.

 WASTE  SPECIFIC ISSUES

       EPA established  LDR treatment standards  for  certain spent  solvent and  dioxin-
 containing wastes, California list wastes, and certain scheduled wastes.  Many of these wastes
 are commonly land disposed at RCRA  permitted and interim status  facilities.

       Regulation  of some  First Third wastes prompted the expression of concerns from the
 regulated industry.  These wastes include K001 (bottom sediment sludge from the treatment
 of wastewaters from wood preserving processes that use creosote and/or pentachlorophenol),
 and K061  (emission control dust/sludge from the  primary  production  of steel in  electric
 furnaces).

       Other wastes that generate a large number of inquiries from Regions and the regulated
 community include -

             Dioxins  (for   which  the  Agency  has established treatment
             standards, although a lack of permitted treatment capacity exists);
             and

             California list wastes (due to  overlap  with  other treatment
             standards).

       General Waste Issues

 Q:     If  a waste stream contains multiple waste codes, and there is more than one treatment
       standard for a given constituent, to what levels should that waste  be treated before it
       is land  disposed?

A:     The waste must meet the most stringent treatment level for each regulated constituent.
                                  September 1, 1989

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                                          1.5
Q:     When will characteristic hazardous wastes become restricted from land disposal?

A:     In  May  1990,  EPA will  promulgate standards for the land disposal of characteristic
       hazardous wastes as part of the Third Third Rule.  At that time, characteristic wastes
       will be restricted from land disposal unless they  have been treated  to established
       treatment levels (see 40 CFR 268.12) or rendered non-characteristic.

Q:     Suppose a restricted waste, such as acetone, is present in a waste stream that is not
       a spent solvent - would that waste steam be regulated under the LDRs?

A:     No.  In many cases, a facility will produce wastes that have concentrations  of similar
       "ingredients" coming   from multiple sources.  In order to be a regulated solvent waste
       (i.e., F001-F005), the constituents  must have been  used for  their  solvent properties.
       Therefore, the sources of the wastes must be known to determine the applicability of
       the LDRs.  When the Third  Third rule  is promulgated in  1990,  however, the acetone
       would be subject to the LDRs as a D001 characteristic waste or a  P or U waste.

       Dioxin Wastes

Q:     Are there any established  treatment standards for ash resulting  from solid  waste
       incineration?  Are there standards for dioxins in this ash?

A:     No. At this time, solid waste incineration ash is only hazardous if it fails a characteristic
       test. Dioxins in ash from incineration of solid waste are not regulated.

Q:     Is dioxin  a concern at concentrations of one part per billion (ppb)?

A:     There is considerable controversy within the scientific community on the relative  risk of
       dioxins.   At this time, however,  EPA does not plan to change its estimated risk factor
       for dioxins.  Using this risk factor,  some programs regulate dioxins into the  low parts
       per quadrillion range.  The one ppb number used by the LDR  program is not  a risk-
       based figure.  Rather, it is the practical quantification limit for  the analytical method
       used for dioxin.  That method may well be revised  in the near future.  If it is revised
       and detection at lower levels is possible, EPA may revise the LDR  level for dioxins.

Q:     Is any facility close to getting a permit to incinerate dioxins?

A:     The only facility  that  is currently  permitted for  dioxin incineration  is the EPA mobile
       incinerator.  One other facility has applied for a permit to incinerate dioxins, although
       a final decision on the application  has  not been made.

Q:     If there is no legal option for disposal of dioxins, why can't the Agency grant another
       extension to the  effective date?

A:     The statute only allows EPA to grant one two-year national extension of an effective
       date for a specific waste based on a lack of capacity. Case-by-case extensions can
       be used  to extend the effective date, but they  require a binding contract to build or
                                   September 1, 1989

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                                          1.6
       acquire capacity.  EPA believes that it is highly unlikely that owners/operators will be
       able to contract out disposal  or  incineration of dioxins within  the  two-year period
       already allowed for case-by-case extensions,  although one such  extension petition, is
       now pending.

 Q:    If a facility generated a pentachlorophenol soil waste that contains dioxin, but does not
       meet the dioxin listings, would the LDRs  be applicable?

 A:     No.  If the waste is not a listed RCRA hazardous waste (i.e., F020-023 and F026-028
       waste, in this case), then the waste is not yet covered by the LDRs.

 Q:    The LDR treatment standard for F027 is one ppb, the practical detection limit, based on
       incineration to 99.9999 percent destruction and removal efficiency (ORE). Are in-stack
       gases produced during incineration regulated under the LDRs?

 A:     No, stack emissions are not accounted for in the LDR treatment  standard.  However,
       in selecting the BOAT, the Agency would consider the risk that the technology posed
       to other media (e.g., air).

       California List Wastes

 Q:     If waste contains PCBs,  is it necessarily restricted from  land disposal?

 A:     No.  PCBs are California list wastes if (1) they  are liquids,  are  mixed with a RCRA
       hazardous waste, and are in concentrations of at least 50 milligrams/liter (mg/l); or, (2)
       as halogenated organic compounds (HOCs) if they are mixed with a RCRA hazardous
       waste,  and the total  concentration of HOCs  is at least 1,000 parts per million (ppm)
       (see 40 CFR 268.33(a)(2)  and (3)).  Even if PCBs are  not regulated under the LDRs,
       they are regulated under the Toxic Substances Control  Act (see 40 CFR Part 761).

 Q:     If a waste contains constituents that are  regulated under both the California list and
       First Third rules, to which effective date and treatment standard is the waste subject?

A:     The waste  would be  subject to the First Third  standards  because  they  are waste
       specific.  Eventually, because all  California list wastes  must be  mixed with a RCRA
       hazardous waste, all or most of the California list will be subsumed under other,  more
       specific  standards that  are promulgated for  listed  and characteristic  wastes.   For
       example, an  F006 sludge is  a First Third waste, although the levels of nickel  and
       cadmium in the  waste  also may  make it  a California list waste.   Because the
       promulgated treatment standards for F006 are more stringent than the prohibition levels
       in effect for the California list metals, the First Third treatment standards must be met
       before the waste is land disposed.
                                  September 1, 1989

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                                          1.7
Q:     What is the rationale for using a pH less than or equal to two in defining California list
       wastes?

A:     The State of California used  this  level to define types  of wastes  restricted from land
       disposal.  Congress  adopted the  California list and made it a statutory requirement.

Q:     Where are the metals citations found in the California list rule?

A:     RCRA 3004(d)(2) specifies the prohibition levels for  California list metal wastes.

Q:     What is the effective  date of the restrictions on  HOCs?

A:     EPA originally granted a national  capacity extension  until July 8, 1989, but rescinded
       the variance in the First Third rule. The new effective date is November 8, 1988, for all
       HOCs except soil and debris (see 40  CFR 268.32(e)).

Q:     Why are the treatment standards for California list metals so high?

A:     The  Agency  has not set treatment  standards for  the  California  list  metals.  The
       concentration  levels  associated with the metals are the prohibition levels based on
       California's regulations  that  were incorporated in  HSWA.   The State of California
       multiplied the existing extraction procedure (EP) toxicity numbers by a factor of 100 to
       set the State regulations.

Q:     Is any amount of waste  subject to the California list?  Specifically, is waste generated
       by a conditionally exempt small quantity generator (a SQG of less than  100 kg/month
       of  non-acute  hazardous waste or of less than 1 kg/month of acute  hazardous waste)
       exempt from the LDRs?

A:     SQGs are not subject to the  California list restrictions or  to any LDR restrictions.

Q:     Are the California list waste treatment standards  based  on  the toxicity characteristic
       leaching procedure (TCLP)?

A:     The California list treatment standards for PCBs and  HOCs are specified technologies
       (i.e.,  incineration);  neither concentration levels nor test methods  are specified for
       California  list wastes, and, therefore,  the TCLP does not have  to be used  to test
       residuals (see 40 CFR 268.42).

Q:     Are California list metals  (nickel and  thallium) that are  not covered under the EP toxicity
       tests restricted under the LDRs?

A:     California  list wastes (except HOCs) must  be liquids,  and  must  be listed  or
       characteristic RCRA hazardous wastes, in addition to exceeding the statutory prohibition
       levels or having a pH less than or equal to two, before being restricted under the LDRs.
       If nickel or thallium  are  in liquid mixtures with a RCRA hazardous waste, and the
                                   September 1, 1989

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                                          1.8
        concentrations of these metals exceed the prohibition levels, they are subject to the
        LDRs.

 Q:     What is the definition of a "liquid" as referred to in the California list regulations?

 A:     An entire waste is a  liquid if it fails the Paint Filter Liquids Test, which is  defined in
        EPA's Test Methods Publication (SW-846) (see 40 CFR 268.32(i)).

        F006 Wastes (electroplating wastes)

 Q:     Can you have F006 wastewaters from metal plating, or would that material be a sludge?

 A:     The F006 listing is for precipitation sludges, and not the wastewater produced in the
        process.  When the  sludges are dewatered, the decanted wastewater  is not F006
        unless it is significantly more contaminated  than the influent process wastewater (see
        53 FR 31153, August 17, 1988).

 Q:     Are copper and zinc among the constituents in the treatment standard for F006?

 A:     No.  The constituents for which the Agency set treatment standards for F006  non-
        wastewaters are cadmium, chromium (total), lead, nickel, silver,  and cyanides (total).

        K001 Wastes (wood preserving wastes)

 Q:     If during a closure action an owner/operator removed sludges from the  bottom of a
       surface impoundment and dewatered those sludges, would the resulting water removed
       from the sludges be considered  K001 wastewater?

 A:     No.  The K001 listing is similar to F006.  K001  is defined as sludge from the treatment
       of wastewater, not the wastewater itself.  K001 wastewater may be produced, however,
       as scrubber water from the incineration of K001 sludges.

 Q:    If you decant a K001  sludge and take off the liquid  portion, would that liquid portion
       be considered K001 wastewater?

 A:     If decanting  is an operation similar to the operation by which K001 is produced in the
       first place (e.g., a pretreatment tank with still bottoms or residues settling out), then that
       liquid fraction on top is exempt  by the listing definition.

 Q:     Regarding K001 being shipped from the Pacific Northwest to Texas, could EPA allow
       storage for accumulation  to make it  worthwhile to make the  shipment?

A:     Yes and  no.  If the  receiving incinerator requires that the  generator ship a certain
       minimum quantity,  there  is a rationale  for the storage.  If  the  generator stores  the
       wastes longer than one year, then  the  generator may be required to justify his/her
       activities under the storage prohibition (see 40 CFR 268.50).
                                  September 1, 1989

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                                         1.9
       K048-K052 Wastes (petroleum refining wastes)

Q:     May K048-K052 wastes be land disposed for the next two years without treatment?

A:     Yes.  The Agency granted K048-K052 wastes a two-year national capacity extension,
       until August 8, 1990 (see 40 CFR 268.33(b)).  However, if these wastes are disposed
       in landfills or surface  impoundments, the units must  meet minimum technology (or
       equivalent) requirements, or be exempt through 3005(j)(2) or 3005(j)(4) waivers.

Q:     Are the treatment standards for K048-K052 wastes based on  incineration?

A:     Yes, in part.  Constituent concentration levels are based on both incineration and on
       solvent extraction.

Q:     Why  weren't  K048-K052  wastes "soft hammered," instead  of receiving  a national
       capacity extension?

A:     From EPA's perspective, soft hammers should apply only to  those waste streams for
       which there was some problem or difficulty associated with setting a treatment standard
       or for which  EPA  legitimately could not set a treatment  standard  by the  statutory
       deadline.  K048-K052  treatment standards were based on  incineration and solvent
       extraction, which were both demonstrated available technologies,  so there was no
       rationale for not setting the treatment standards.  The lack of capacity  will not affect
       the decision on whether BOAT can be set.

       K061 Wastes (electric arc furnace dust)

Q:     Are waste codes that  the Court stayed  (e.g., K061) considered  to be soft hammer
       wastes?

A:     For K061, the Court issued a stay for the treatment standard, effectively making K061
       a soft hammer waste.  The Court  has  since lifted the stay, and the stabilization
       standard is in place for K061.

Q:     What provisions  allow slag from  metals recovery as K061 not to be considered
       hazardous as K061?

A:     This is the so-called "indigenous"  rule.   If a waste feed resembles a  raw  materials
       process feed, "and" if the residues that result from the processing of a waste feed look
       the same as residues from raw materials,  and if the residues from the process are not
       characteristic hazardous wastes, the theory is  that the residues from the waste are not
       hazardous.
                                  September 1, 1989

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                                          1.10
        Mixed Wastes

 Q:     If a radioactive waste is mixed with a restricted RCRA hazardous waste, is the mixture
        restricted?

 A:     Mixed wastes are  a major problem  because  of  limited treatment options for  the
        radioactive portion of the waste. However, if the RCRA hazardous waste portion is a
        solvent- or dioxin-containing waste or California list waste, then the hazardous waste
        portion is restricted and must  meet the LDRs before it is land disposed.  However, if
        the waste is mixed with a scheduled waste (e.g., First Third waste), consideration of the
        mixture has been moved to the Third Third.  EPA will not restrict such wastes until May
        1990.

 HAMMER  PROVISIONS

       The RCRA LDRs contain two sets of "hammer" provisions. "Soft hammers" fall on those
 First Third  and Second  Third wastes for which the Agency does not set treatment  standards
 by the statutorily-mandated date (i.e., August 8,1988, for First Third wastes, and June 8, 1989,
 for Second Third wastes).

       "Soft hammers"  require generators, treatment, and  disposal  facilities to meet special
 restrictions if  the wastes are  disposed in a  surface impoundment or landfill unit.  Before
 disposing of  the untreated wastes, generators  must determine if treatment is "practically
 available."  If treatment is "practically available," generators must send these wastes to a facility
 that will provide the "best" type of treatment.  Regardless of whether the wastes are treated,
 they must be disposed in  a unit  that is in compliance with the RCRA minimum technology
 requirements  (or equivalent).  Facilities also  must complete soft hammer  certifications and
 demonstrations to show whether treatment is  practically available.

       "Hard hammers"  are restrictions that prohibit the land disposal of wastes unless a no-
 migration petition is granted. The "hard hammers" fall if the  Agency does  not set  treatment
 standards for First Third. Second Third, and Third Third wastes by  May 8, 1990.  "Hard
 hammers" have fallen for Solvents and Dioxins (November,  8, 1986),  and California list wastes
 for which the Agency did not set  treatment standards by July 8, 1987  (e.g., liquids that also
 contain metals in concentrations above the statutory prohibition levels established in RCRA
 3004(d), free cyanides  in concentrations greater than 1,000 mg/l, and corrosive wastes that
 have a  pH  <_ 2.0).

       Soft Hammer Provisions

 Q:     How long are the soft hammer provisions in effect?

A:     The soft  hammer provisions cannot extend beyond May 8,  1990.  Some of the soft
       hammer wastes from the First  Third rule had treatment standards set in the Second
       Third Rule.
                                  September 1, 1989

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                                          1.11
Q:     Are the wastes subject to the soft hammer provisions listed in the First Third rule?

A:     No.

Q:     Does EPA think an unreasonable burden has been placed on the Regional Offices and
       the generators to determine whether treatment is "practically available" for soft hammer
       wastes?

A:     Without specific knowledge of what technologies are operating in specific areas, it is
       hard  for EPA Headquarters  to  make a determination  as to whether  treatment is
       "practically available."  In the final analysis, determining what technology is "practicable"
       must reflect the local situation, thus the emphasis on Regional Offices.

Q:     Is cost (i.e., resulting from shipping a soft hammer waste to a treatment facility) a factor
       for consideration of whether treatment is "practically available?"

A:     The  only  place  in  the  rule where  cost factors  are allowed  is  in the soft hammer
       determination of "practicable."  In the First Third rule, EPA described a test that may be
       used to help  determine what  is financially practicable.  If the cost of transporting and
       treating the waste  is more  than  twice the  pretreatment cost of disposal by whatever
       practice the generator was using previously, then that treatment may  be considered to
       be not practically available.  Note that the cost test is only intended  as an aid and
       need not be followed  rigidly.

Q:     What are the  requirements that generators of soft hammer wastes have to meet?

A:     If soft hammer wastes  will be disposed in a landfill or surface impoundment, generators
       must provide  a demonstration, certification, and notification. Generators must provide
       a one-time demonstration, as long as the waste stream does not change or some other
       major aspect of the demonstration does not change (e.g., availability of treatment),
       before the generator ships the waste off-site. This demonstration, which  shows whether
       treatment is practically available, must be sent to the treatment facility with the initial
       shipment and to the Region in which the generator is located (see 40 CFR 268.8(a)(3)
       and (4)). Generators also must prepare and sign a certification, a copy of which must
       be  sent with  each shipment to the treatment facility.   The certification will vary
       depending  on  whether  treatment  is practically  available (see   40 CFR  268.8(2)).
       Generators must also comply with the LDR notification requirements, sending  a
       notification to the  treatment  or  disposal  facility  with each shipment (see 40 CFR
       268.7(a)(4)).

Q:     If generators treat a soft hammer waste, is there a concentration level  that they have
       to meet?

A:     There are no technology standards or concentration levels set  for  these wastes  (which
       is why they are soft hammer wastes).  Generators should refer to the  background
       document for the waste code and to the preamble of the First  Third and Second Third
       rules to determine the best treatments for each waste.
                                   September 1, 1989

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                                         1.12
 Q:     Can owner/operators store soft hammer wastes on-site for as long as the they want?

 A:     No, the LDR storage prohibitions apply to these wastes.  The fact that EPA did not set
        treatment standards does not affect the application of the storage prohibition (see 40
        CFR 268.50).

 Q:     Are some of the soft hammer wastes also California list wastes and, therefore, subject
        to California list standards?

 A:     Potentially,  some soft hammer wastes may be California list wastes.  For example, soft
        hammer wastes that are also California list HOCs or  PCBs are considered to be
        California list wastes because EPA promulgated treatment standards for these California
        list wastes.  Soft hammer wastes that are also California list metals are considered soft
        hammer wastes  and the statutory California list levels  represent  the minimum level of
       treatment for these wastes.  If there is overlap between the requirements, the waste
        must meet  the most stringent requirements before being land disposed.

        Minimum Technology Requirements

 Q:    What are the RCRA minimum technology requirements (MTRs)?

 A:     MTRs are technological standards that landfills and surface impoundments, must meet
       in  order to  comply with the statutory requirements of HSWA. Specifically, these units
       must be double lined, include a  leachate collection system, and have ground-water
       monitoring in place to comply with the MTRs. These requirements are found in 40 CFR
       264/265 Subpart N (see  50 FR 28702-28755, July 15, 1985).

 Q:    Who makes the determination that a unit meets the MTRs?

 A:     Until a State is authorized for MTRs, the determination is made by the Regional Office.
       Once the State is authorized, the State would make the decision.

 TESTING

       The LDRs contain testing requirements to determine whether the treatment standards
 have  been attained  before the waste  is  land disposed.  When  establishing  a treatment
 standard,  the Agency specifies whether  a total waste analysis or  the  toxicity characteristic
 leaching procedure (TCLP) must be  used.

       Use of the  TCLP is required  to measure treatment performance  for LDR solvent and
 dioxin wastes.  The Agency requires use of a total waste analysis where the BOAT basis of
treatment  standard is  a destruction or removal technology.  The Agency specifies use of the
TCLP standard  where the BOAT basis of treatment is fixation or immobilization. Treatment,
storage, or disposal facilities must use the test specified to determine that the standard has
been met.
                                  September 1, 1989

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                                         1.13
Q:     What is the TCLP?

A:     The TCLP is  a replacement test for the extraction  procedure  (EP) test.  The  basic
       difference between the two tests is that the TCLP can be used to test for the volatile
       organics, and that the leaching medium in the TCLP may be more aggressive than the
       EP on some metals. The TCLP is required when the treatment standard is specified in
       40 CFR 268.41 (that is, as  a constituent concentration  in a waste extract,  or  Table
       CCWE).

Q:     What is the status of the TCLP method?

A:     When EPA  promulgated the solvents and dioxins rule (November 1986), the Agency
       actually promulgated the TCLP method for the purpose of measuring compliance with
       the  LDRs.   Final promulgation  for the  TCLP for other components of the   RCRA
       Subtitle C program is slated for mid-1989.

Q:     May wastes that have been treated in a carbon adsorption unit be land disposed  if they
       pass the TCLP?

A:     Wastes must meet the LDR treatment standards in effect using the appropriate test (i.e.,
       TCLP or total  waste analysis).

Q:     How do you know whether to use total waste analysis or TCLP?

A:     If the standard is based on destruction  and removal, then use total waste analysis
       (except in the case of solvents, and dioxins, where the TCLP is required). Ordinarily,
       waste standards will not use both tests.  In some cases, both tests may be required
       at different  stages of  treatment.  For  example,  the standards  may be based on
       incineration  of organic constituents, with stabilization of the residual ash.

VARIANCES AND  EXTENSIONS

       When  the  LDR treatment  standards  cannot be  met for certain wastes,  or  when
insufficient treatment  capacity  is available, the statute and regulations provide that variances
and extensions may be granted. Meeting the requirements of these variances and extensions
constitutes  compliance with the LDRs.  The variances and extensions available  include the
following:

            Variance from the treatment standard, which allow  the application
             of an alternate treatment standard when the promulgated standard
             cannot be attained. There are two types of treatability variances.
             The first is a rulemaking variance, which sets nationwide treatment
             standards for a new  waste treatability group.  The second is a
             site-specific,  administrative  variance  that sets   an alternate
             treatment  standard  at a site.    Both  variances  require  public
             comment to be granted.
                                  September 1, 1989

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                                          1.14
              No-migration petitions, which allow the land disposal of restricted
              wastes  if a demonstration can be made that there will be no
              migration outside  the disposal unit for  as long as the waste
              remains hazardous.

              National capacity extensions, granted as part of an LDR rule when
              insufficient treatment capacity is available for a particular waste on
              a national basis.

              Case-by-case extensions, granted when a petitioner cannot locate
              treatment capacity for a waste, and the petitioner has a binding
              contractual commitment to build or acquire that capacity by the
              time the extension expires.

       Variance from ihe Treatment Standard

 Q:    If there is a variety of wastes  within a waste group, is it possible to obtain a treatability
       variance for selected wastes  within the group?

 A:     Yes.  It is possible to obtain  a treatability variance in such circumstances.

 Q:    Are treatability variances that are processed by  rulemaking procedures  applicable to
       anyone  other than the petitioner?

 A:     Yes.  Under this process, the owner/operator seeking the variance would petition EPA
       Headquarters and provide data that EPA could use in setting treatment  standards for
       the new treatability group. Owner/operators would also have to demonstrate why they
       could not  achieve the existing  treatment  standard (e.g., that they tried  and  the
       technology did not work, or that for some reason they could not use the appropriate
       methodology).  Such variances will establish new treatability groups.  Anyone who had
       a waste that met the specific description could use the new standard.

 Q:     Are  treatability   variances  granted  through   non-rulemaking  (i.e.,  administrative)
       procedures valid for anyone other than the petitioner?

A:     No.  Such variances take into account site-specific conditions that influence the waste
       (e.g.,  the  nature of the  waste,  the ability to  treat the  waste).   Non-rulemaking
       procedures  do not  establish new treatability groups;  rather,  they permit alternate
       treatment standards to be met for a particular waste  at one site.

Q:     Are non-rulemaking treatability variances based on a  risk-based  methodology?

A:     No.   The  key determinations  are what  technology to use and  what  levels that
       technology can achieve.  These determinations are technology-based.

Q:     When looking at a non-rulemaking treatability variance, is cost-effectiveness something
       to  be considered?
                                   September 1, 1989

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                                         1.15
A:     No. Cost-effectiveness is generally not a factor in the RCRA decisionmaking process.
       The only place where cost may become a factor under the LDRs is when making a
       finding regarding the availability of treatment for soft hammer wastes.

Q:     EPA has indicated that it is now in the process  of delegating the authority for non-
       rulemaking variances for certain types of wastes to the Regions. What types of wastes
       would be covered, and when will this authority be granted to the Regions?

A:     Authority will be delegated for all non-rulemaking treatability variances. This delegation
       should occur in 1989.

Q:     Has anyone pursued a non-rulemaking treatability variance?

A:     Not at this time.  The non-rulemaking variance only became available on August 17,
       1988.  It is expected that it primarily will be used for the treatment of soil and debris
       wastes.

Q:     What is  the relationship between  a treatability  variance and a capacity extension?

A:     A capacity extension is based  on a lack of treatment capacity. A treatability variance
       is  based  on the  inability  to  meet the treatment standard  because the  waste is
       chemically different than the one  used to establish the standard.

Q:     What happens to the waste during the time it takes to process a treatability variance
       application?

A:     If owner/operators apply  for either the rulemaking  or  the non-rulemaking treatability
       variance, they must comply with the LDR  standards during the time the variance is
       being  considered.

       No-Migration Petition

Q:     Which of  the following are administrative  and which are rulemaking  extensions or
       variances:  no-migration petition, national and case-by-case capacity extensions,  and
       treatability variances?

A:     The no-migration petition and both  capacity extensions require  a rulemaking;  the
       treatability variance can either be a rulemaking or non-rulemaking procedure.

Q:     Is the length of time required  to obtain a  no-migration petition  similar to a delisting
       process?

A:     Yes, because both processes require a rulemaking action, including publication in the
       Federal  Register and the  opportunity for public comment.

Q:     What happens to the waste during the time it takes to process  a no-migration petition?
                                  September 1, 1989

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                                          1.16
 A:     As with treatability variances, the owner/operator who has submitted a no-migration
        petition must comply with the LDRs.

        National Capacity Extension

 Q:     Are wastes  granted  a  national  capacity  extension  subject  to  the soft  hammer
        restrictions?

 A:     No, but like soft hammer wastes, if they are disposed in surface impoundments or
        landfills, the  unit receiving the wastes  must meet  the  RCRA minimum technology
        requirements (or be equivalent).

        Case-by-Case Extension

 Q:     Can a State requirement override a case-by-case extension?

 A:     Yes.  A State could enact more stringent requirements than the Federal requirements
        (e.g., make the effective  dates "sooner"), but a State can not be less stringent (e.g.,
        move back the effective dates).

 Q:     EPA has  indicated  that  it  could  take six to eight months  to get  a case-by-case
        extension  approved.  From an enforcement point of view, what should the Agency do
        during that time period when the owner/operator is waiting for an extension?

 A:      Owner/operators must comply with all applicable standards during the period in which
       a case-by-case  extension is being considered, which means in many cases that the
       owner/operator's only real option is to store the waste.  The same is true of treatability
       variances, while an owner/operator is waiting for his/her petition to  be approved.

 LDRs AND SOIL & DEBRIS WASTES

       The  LDRs  apply to  soil and  debris  that  are  contaminated  with restricted  RCRA
 hazardous wastes. In some cases, however, treatment of soil and debris wastes will not attain
the standards, because these waste are in a matrix different from that on which the treatment
standards were based.   As previously stated, treatability variances are available  in  cases
where the treatment standards cannot be attained.  Guidance for obtaining such soil and
debris variances is being developed by EPA.

Q:     When we are talking about treatment of soil and debris to BOAT levels, who makes the
       determination that treatment is not able to  attain  the  LDR  treatment  standards?
       Wouldn't industry always want to treat to the more flexible and less stringent variance
       standards?

A:     The  determination of  whether  treatment  to  BOAT levels is too  difficult  is  the
       responsibility  of the person  making the determination on the treatability variance.
       Generally, this determination will be made by the Regional Office.
                                  September 1, 1989

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                                         1.17
       Debris is difficult to evaluate, since debris can range from a tree trunk to a demolished
       building (i.e., from material for which it is fairly straightforward what treatment could be,
       to material that may not be amenable to any treatment).  The Agency  needs some
       mechanism to assess the feasibility of treatment and appropriate standards for debris
       wastes.   This will  be addressed in the  guidance on treatability variances for  soil and
       debris.  The  guidance will offer technical data to assist the Regions and States in
       making treatment  decisions and choosing remedies.

Q:     Instead  of writing guidance for obtaining soil and debris treatability variances, why
       doesn't  EPA promulgate regulatory requirements?

A:     EPA is preparing a testing program and will eventually write a rule for soil and debris.
       Until EPA promulgates the soil and debris  rule,  however,  owner/operators  and the
       Agency  are still bound by the treatment standards currently regulating the wastes.

Q:     Once granted the authority to approve treatability variance requests, will the  Regions
       be able to define what  the  soil and debris  treatment technologies and/or treatment
       levels should  be?

A:     Headquarters has issued  guidance  based  on existing data and  believes  that the
       Regions should utilize this guidance in granting variances. The choice of a technology
       or levels not contained in the guidance will require  prior concurrence from the Assistant
       Administrator  of the Office of Solid Waste and Emergency Response.

Q:     Did the Agency conduct any analysis to determine if the technologies specified for each
       waste type can meet the soil and debris treatability variance requirements?

A:     The interim "treatment levels" specified were based on data from treating soil and debris
       with  the technologies listed in the guidance.  However, EPA  did not conduct testing
       specifically for this guidance.

Q:     Do the  LDR treatment standards apply to debris from RCRA corrective action and
       Superfund remedial actions?

A:     Technically, yes.  However,  facilities may obtain  treatability variances if they do not
       believe that the treatment standards can be attained.  Of course, soil and debris from
       CERCLA and  RCRA actions were granted a two-year extension from the effective date
       (until November 8, 1990, for solvent- and dioxin-containing wastes  and  California  list
       HOCs (except dilute wastewaters), and until August 8, 1990, for First Third  wastes  for
       which BOAT is incineration).

Q:     Does the soil and debris  treatability  variance from  the  treatment standards  have
       anything to do with receiving an extension of the effective date for that waste?

A:     No.  The soil  and  debris treatability variance has nothing to do with the  extension  on
       the effective date  for  soils and  debris  contaminated with waste from RCRA/CERCLA
       cleanups.
                                  September 1, 1989

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                                         1.18
 Q:    May debris at a corrective action or Superfund site be disposed as a nonhazardous
       waste if it is decontaminated prior to disposal?

 A:    Debris that is not itself a solid waste is subject to the contained-in interpretation and
       may be decontaminated and disposed without meeting Subtitle C restrictions.   If the
       debris is  a  solid waste, however,  the mixture  rule applies and the debris also is
       hazardous waste. The definition of "solid waste" is found in 40 CFR 261.2.

 Q:    Are soil and debris wastes typically a lower hazard?  Can EPA characterize them that
       way?

 A:     With respect to soil and debris from  cleanups, the Agency has  already made a
       determination that there is a risk posed by these materials at the site, since the Agency
       is having the owner/operator clean  it up.  Soil and debris may be less contaminated
       than industrial process wastes, although this is not necessarily true in all cases.

 Q:    Must an owner/operator be going through a permit action in order to obtain a soil and
       debris treatability variance?

 A:     Any owner/operator  can make a site-specific request that this type of variance be put
       into place for his/her waste.  If an owner/operator had applied for an operating or  post-
       closure  permit or had  submitted a closure plan, the treatability variance could be
       addressed during the public comment period required under each of these processes.
       Otherwise, a separate public comment  period must be provided.

 LDRs AND GROUND WATER

       The LDRs apply to ground water containing  restricted RCRA hazardous wastes that are
 "placed" onto the land.  This includes situations in which ground water is pumped, treated, and
 disposed, either to an aquifer, injection well, or directly onto the land.  Wastes that are treated
 and discharged to surface water through an National Pollutant Discharge Elimination System
 (NPDES) permit are  exempt from regulation under RCRA Subtitle C (and thus from the LDRs),
 as are wastes discharged to a publicly owned treatment works  (POTW).  (In both of these
 cases, the  ground  water will likely have to be treated to  comply with NPDES discharge
 requirements or POTW pre-treatment standards, respectively).

 Q:     What is the "contained in" policy?

A:     The  "contained in" policy states that although ground water is not in and of itself a
       hazardous waste,  if  the  ground water  contains a hazardous waste, then it must be
       managed as if it were a hazardous waste. Once the hazardous waste is removed, then
       the ground water would no longer be considered hazardous.

Q:     Was contaminated ground water granted a statutory extension  for two years, like  soils
       and  debris generated from RCRA  or CERCLA cleanups?
                                  September 1, 1989

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                                        1.19
A:     No. Contaminated ground water as a class does not have a statutory extension of two
       years.  If, however, this  contaminated ground water was a  solvent-water  mixture
       containing less than one percent solvent constituents, then the ground water might
       have been covered by the two-year capacity extension for solvents (until November 8,
       1988), enacted as part of an Agency national capacity extension rulemaking. Moreover,
       if ground  water is contaminated with wastes derived from the treatment, storage, or
       disposal of wastes listed in 40 CFR 268.10 (i.e., First Third wastes) for which EPA has
       not set wastewater treatment standards (i.e., soft hammer wastes), EPA will  not set
       treatment  standards until the Third Third rule.

Q:     What is the status of ground water  contaminated with leachate from both First Third
       wastes and solvent wastes?

A:     In August 1988, the Court of Appeals for the D.C. Circuit issued a stay of the First Third
       rule  as  it applies to  leachate, leachate  treatment  residuals,  and  ground water
       contaminated by leachate.  The Agency  subsequently  promulgated  a rule  moving
       solvent, First Third, and Second  Third leachate, ground water, and leachate treatment
       residuals to the Third Third of the schedule (54 FR  8264, February 27, 1989).

Q:     If a waste is  derived from precipitation from waste treatment in  an NPDES  system,
       would that new waste be subject to the LDRs?

A:     The wastewater treatment tank system  is exempt from RCRA permitting requirements,
       but the waste is not exempt from RCRA regulation when  it leaves that unit or  system.
       That new waste, if derived from  restricted  hazardous waste, would  be subject to the
       LDRs.

OTHER QUESTIONS ON THE LDR PROGRAM

       General

Q:     Have there been any law suits about the LDRs in which the plaintiff based  his/her case
       on the fact that EPA overstated health  risks?

A:     No.  Generally, suits about the LDRs are based on  procedural issues.

       Exporting Wastes

Q:     May a restricted waste be exported without first being treated to LDR standards?

A:     Yes.   EPA must be notified,  however, so that the Agency is able to  alert border
       authorities about the waste to be exported.  There are also regulations in effect that
       govern the export of hazardous waste in 40 CFR 262 Subpart E.

Q:     Do the LDRs  apply to  U.S. hazardous  wastes treated, stored, or disposed in foreign
       countries?
                                  September 1, 1989

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                                          1.20
 A:     The notification and recordkeeping requirements apply to the generation, storage, and
        treatment of the wastes while they are in the United States.

        Implementation

 Q:     One of the complaints that comes up from generators is that even though their waste
        does not meet the listing (i.e., is not a hazardous waste), disposal facilities will not
        accept their waste without treatment.  Has EPA heard this?

 A:     Yes, EPA is aware of this situation.  As long as the disposal facilities are operating  as
        private facilities, they have the  right to make this decision.  EPA can not force facilities
        to accept a waste that they do  not  want to  take.  Although these wastes are not
        restricted by the LDRs, EPA recognizes that in reality there may be restrictions, since
        no one may be willing to accept the waste for disposal without prior treatment.

 Q:     When  the Third Third rule is issued on May 8, 1990, what hazardous wastes will  be
        covered?

 A:      Only hazardous wastes listed or identified as characteristically hazardous on or before
        November 8,  1984, (when HSWA was enacted) will be restricted under  the  LDRs.
        HSWA requires EPA to set LDR treatment standards within six months of the date a
       waste  is  newly listed or identified, but did not provide "hammers" if the Agency missed
       this deadline.  EPA has not set standards for a number of newly listed wastes, because
       the resources  were required to meet  statutory  hammer dates for pre-HSWA wastes.
       The Agency is developing a strategy  for determining the order in which post-HSWA
       wastes will be  addressed.

       Storage

 Q:     Does the storage for accumulation limit apply to units other than land-based units (i.e.,
       to tanks,  drums, etc.)?

A:     Yes, they only  apply to tanks and containers.

Q:     Does  the LDR storage prohibition  only  apply to  treatment,  storage,  and disposal
       facilities?

A:     No, generators also are covered under the storage  prohibition.

Q:     If nobody will  accept  a waste  (e.g., dioxin) for treatment, what options  other than
       storage of the  waste are available?

A:     EPA does not  know of any other options.

Q:     Will storage  extensions be allowed for facilities who want to wait for  new treatment
       technologies to be developed  or proven, or will EPA require these facilities to use
       existing technology?
                                  September 1, 1989

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                                         1.21
A:     Neither the statute nor the regulations provide for extensions of the effective dates for
       reasons other than insufficient capacity.  If capacity to treat the waste is not available,
       and the storer has a binding  commitment to build or acquire the necessary capacity,
       a case-by-case extension may be obtained under which storage of wastes is allowed
       until contracted-for capacity is permitted and operating.

Q:     EPA's enforcement policy is to limit storage of wastes to one year.  Does this limitation
       apply  to wastes generated and  placed in long-term storage prior to the effective date
       of the LDRs?  Does the one year start with the effective date?

A:     Wastes placed in  storage prior to the effective date of the LDRs are not subject to the
       restrictions until they are removed from storage.

Q:     Do the storage prohibitions restrict storage of wastes in waste piles?

A:     Placement of wastes in a waste pile is considered land disposal  of wastes (see RCRA
       3004(e)), and, therefore, the appropriate LDR  restriction (e.g.,  treatment standards)
       must be met before a waste may be placed in a waste pile.

       Recycling

Q:     Are resource recovery facilities and facilities that use hazardous waste-derived products
       that are recycled by being placed on the land subject to the LDRs?

A:     Yes.   In  the First Third rule,  EPA revised 40 CFR 266.20(b).   The regulations  now
       provide that these products must meet LDRs as a condition for remaining exempt from
       all other hazardous waste regulation (see 53 FR 31197). EPA also developed special
       notification requirements for these facilities (see  40 CFR 268.7(b)(8)).

Q:     Did EPA notify the resource recovery facilities that they now were subject to the LDRs?

A:     The Agency attempted to  notify these facilities,  just as  the Agency notified other
       facilities of the LDR restrictions.

Q:     Is a virgin product a hazardous waste?

A:     No, not while it is being used as a product.   However,  when  certain  commercial
       chemical products are discarded or spilled, they become  hazardous wastes  (see 40
       CFR 261.33).
                                   September 1, 1989

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                                   SECTION 2

                         No MIGRATION  PETITIONS
       As codified in 40 CFR 268.6, no  migration petitions provide an opportunity for the
regulated community to waive the land disposal restrictions prohibitions.  Specifically,  an
owner/operator seeking a no  migration variance must  be able to demonstrate, with  a
reasonable degree of certainty, that there will be no migration of hazardous constituents from
a disposal unit or injection zone at his/her facility for as long as the waste remains hazardous.
Thus,  no migration  petitions are site- and waste-specific.  The Agency anticipates that
owner/operators may submit these petitions along with their Part B permit applications.

       Currently,  Headquarters staff have primary responsibility for processing no migration
petitions.  The  Disposal and Remediation Section of the Office of Solid Waste's Assistance
Branch (OSW/AB/DRS)  has lead responsibility  for reviewing  and  recommending to the
appropriate authorities whether to grant or deny a no migration petition. The authority to deny
a no migration petition has been delegated to the Assistant Administrator of the Office of Solid
Waste and Emergency Response, whereas  the  authority for granting a petition  has been
delegated to the Deputy Director of the Office of Solid Waste.

PROCESSING A  No MIGRATION PETITION

Q:     What other groups besides OSW/AB/DRS are  involved in the review of no migration
       petitions?

A:     The Disposal  and Remediation Section coordinates its review with other offices within
       Headquarters, as well as with the Region and State in which the facility is located.

Q:     Who has the authority to grant no migration petitions for  underground injection wells?

A:     The Office of Drinking Water.  OSW is not directly involved, although OSW is presently
       studying the potential migration of hazardous waste from injection zones.

Q:     Is public notice required for a no migration petition?

A:     Yes.   Determinations on no migration petitions are based upon a formal process that
       requires public notice and comment, and publication of the final Agency decision in the
       FEDERAL REGISTER.

Q:     How long does the Agency anticipate it will take to review and make a determination
       on a petition?

A:     Based on experience in reviewing delisting petitions, the Agency is estimating that it will
       take anywhere from nine to 12  months to process a petition.   Components  of this
       processing time include public notice and comment, technical review, decisionmaking,
                                  September 1, 1989

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                                           2.2
        and final notice in the FEDERAL REGISTER. The Agency anticipates that the technical
        review will comprise two months of the review time.

 Q:     Will EPA use contractors to assist in the review of no migration petitions?

 A:     Yes.

 Q:     Do engineering designs count as part  of a no migration petition?

 A:     Except for temporary storage or treatment operations, it should not be assumed that
        man-made barriers or engineered systems (e.g., liner systems) alone will meet the "no
        migration"  standard.   Although artificial  barriers  in  conjunction with partial waste
        treatment or barriers that are expected to last substantially longer than the hazardous
        life of the waste may enhance a petition,  artificial barriers alone cannot be relied upon
        to provide long-term assurances required.

 Q:     How long does a variance, if granted, apply?

 A:     If a  petition is  granted,  the variance applies only during the term of the permit, and
        would have to  be  renewed when the permit is renewed.  The variance would also be
        valid for up to ten years, if the facility is in interim status.

 Q:     Under what conditions would a variance be revoked?

 A:     A waiver may  be  revoked any time monitoring reveals that migration of hazardous
        consistently above health-based levels has occurred or that conditions at the facility
        upon which a waiver is based have changed.

 Q:    Will  the authority to grant no migration  petitions be  delegated  to the Regions and
       States?

 A:     Yes.  However, because of the controversy surrounding the interpretation  of  the
       statutory "no migration" language of RCRA 3004(d), (e), and (g), and the potential for
       changes  in  the policy, EPA will  be handling  no migration petitions at Headquarters.
       The States may be authorized to grant the petitions in the future.  The Agency expects
       to gain valuable experience and information from review of no  migration petitions, which
       may affect future land disposal restrictions rulemakings.

 Q:     Do the States have to pick up the authority for no migration  petitions?

A:     No.  However, States that have the authority to impose restrictions may be authorized
       under RCRA 3006 to grant petitions for exemptions from the  restrictions.   Decisions
       on site-specific  petitions do not require the  national perspective required to grant
       extensions or to restrict wastes.
                                  September 1,  1989

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                                         2.3
OWNER/OPERATORS AND No MIGRATION PETITIONS

Q:     What is the recommended timing for submittal of no migration petitions?

A:     Because the Agency's processing time for no migration petitions is fairly lengthy (from
       nine to 12 months), the Agency recommends that potential applicants for no migration
       petitions should contact Headquarters as soon as possible to discuss  their situation
       and the petition requirements.

Q:     Is EPA encouraging owner/operators to apply for no migration petitions?

A:     EPA does not wish to discourage owner/operators  from applying  for no  migration
       petitions.    The  Agency  recognizes, however, that  it will  not  be  easy  for  an
       owner/operator to satisfy the requirements for a no migration demonstration, particularly
       those requirements addressing the possibility of migration after the post-closure period
       has ended.                            '

Q:     How can  "mom-and-pop" operators receive a no migration petition?  Isn't the process
       prohibitive for such small operations?

A:     If mom-and-pop operators understand the regulatory process well enough to submit a
       Part B permit application, they should also be able to develop a no migration petition.
       Note, however, that all facilities applying for  a no migration petition will be required to
       perform fairly sophisticated air modeling.

Q:     What types of owner/operators have expressed interest to the Agency about submitting
       no migration petitions?

A:     Many petroleum refineries which handle K048 through K052 in land treatment units have
       expressed interest in developing no migration petitions. Untreated K048 through  K052
       can be land  disposed through August 8,  1990, since these wastes received a 2-year
       national capacity extension.

Q:     Will the Agency accept a no migration petition from a land treatment unit which has an
       incomplete land treatment demonstration (LTD)?

A:     Yes.  The land treatment demonstration need not be complete in order to receive a no
       migration variance.  The no migration variance will be granted based upon certain basic
       monitoring and modeling  data.   However, the variance will be conditioned  upon
       completion of the LTD within a specified time period (usually two years after the date
       of granting of the no migration variance), or else the variance will be revoked.

Q:     Will the Agency grant no migration petitions for units that handle metals and/or complex
       organic compounds that will not degrade  by the end of the post-closure period?
                                  September 1, 1989

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                                         2.4
 A:     The Agency's position is that  it should not  grant petitions to facilities where these
       metals and compounds are of  concern, if it can not be confident that such materials
       will not migrate.

 Q:     What is the current status with  respect to petitions received?

 A:     As  of August 1, 1989, EPA has received a total of six petitions:   one for  a land
       treatment unit, three from refineries that land treat wastes on site, one for DOE'S Waste
       Isolation Pilot Project,  and  one for  a Superfund project that involves placement of
       restricted waste  in waste  piles prior to incineration.  These six petitions are now
       undergoing Agency  review.   In 1987,  EPA granted  a  petition for  the  Old Inger
       Superfund site.  As  of this time, EPA has not granted any petitions for  industrial
       facilities.

 Q:     Where can the Regions and States obtain a copy of  the no migration  petition  for the
       Old Inger site?

 A:     From Headquarters. Contact the Disposal and  Remediation Section, Assistance Branch,
       OSW.

 CURRENT AGENCY ACTIVITIES RELATED TO No MIGRATION PETITIONS

 Q:     What are current Agency activities in the area of no migration petitions?

 A:     The Waste Management Division (WMD) of OSW is completing a draft Headquarters
       guidance document on no migration petitions and developing a no migration proposed
       rule.  In addition, the Agency includes as an appendix to the guidance document a
       draft methodology for assessing air emissions.

       No  Migration Guidance

 Q:     When will the  no migration guidance document  become available?

A:     The Agency is planning to notice the availability of the guidance document at the same
       time it plans  to  propose the no migration rule in the FEDERAL  REGISTER.  The
       tentative schedule is to propose the rule and the associated guidance document in
       October 1989. An earlier draft of the guidance document, dated July 1989, is available
       to the Regions and States.

Q:     What will the guidance document discuss?

A:     This guidance elaborates on the types of information an owner/operator should include
       in his/her petition. Although much of this information  will be generated for the  Part B
       permit application, additional material must be  submitted  on methods for modeling
       and/or monitoring the  air pathway, and for assessing possible migration of constituents
       following the post-closure period.
                                  September 1, 1989

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                                         2.5
Q:     What is the Agency's current approach to air modeling and monitoring?

A:     The draft assessment methodology currently leans toward an approach that includes
       both emissions and air dispersion modeling. The Agency is interested in verification
       monitoring as a backup to these models.

Q:     Is any other information on air modeling and monitoring currently available?

A:     Additional  information on  air modeling  can  be found  in the draft RCRA  Facility
       Investigation (RFI) guidance.

       No Migration Rulemaking

Q:     What is the function of the no migration proposed rule?

A:     The no  migration proposed  rule will provide  interpretative statutory standards and
       guidance for approving no migration variance demonstrations. Specifically, the rule, will
       define more precisely what the Agency means by the terms, "no migration" and "unit
       boundary."

Q:     How will the proposed rule define "no migration?"

A:     The Agency will propose for  public comment the definition included in the December
       1987 draft guidance document - no migration above health-based standards at the
       boundary of the land disposal unit for as long  as the waste remains hazardous.

Q:     What are these health-based  standards?

A:     Maximum contaminant levels (MCLs) where they exist,  risk-specific doses  (RSDs)  for
       carcinogens, reference  doses (RfDs) for non-carcinogens, and, where there are  no
       published numbers, calculated levels based on the same procedures  EPA  has  for
       individually  establishing health-based numbers  (i.e., the numbers  established for the
       corrective action  process in the Subpart S corrective action proposed rule).

Q:     Does it matter if there is a receptor?

A:     No. The no migration standard is not a  risk-based decision.  Rather, the standard is
       no migration beyond the disposal unit or the injection zone, which EPA is interpreting
       to mean the edge of the engineered unit or, in  the case of land treatment, the edge of
       the treatment zone.

Q:     Is it inconsistent  to use  risk-based standards for corrective  action but not for  no
       migration petitions?

A:     The Agency is constrained by the statute.  Presumably, the same health-based numbers
       are the bases for  making  either type of decision.
                                  September 1, 1989

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                                           2.6
 Q:     How is EPA interpreting the statutory requirement that no migration be demonstrated
        for "as long as the waste remains hazardous?"

 A:     For as long as the waste exceeds health-based levels.

 Q:     Is EPA considering health-based  levels as protective of the environment, too?

 A:     The Agency believes that, in general, health-based levels are protective of both human
        health and the environment.

 Q:     Is there a relationship between no migration and the toxicity characteristic (TC)?

 A:     Not really.  If a non-listed waste exhibits the toxicity characteristic beyond the unit
        boundary, then it is considered a  characteristic hazardous waste and would not qualify
        for a no migration petition.  If a non-listed waste does not exhibit the TC or another
        characteristic  beyond the unit boundary, then it is no  longer considered  to  be a
        hazardous waste.

 Q:     How will the proposed rule define "unit boundary?"

 A:     For all units except land treatment units, unit boundary will be defined as the extent of
        the engineered or natural barrier.  The unit boundary for land treatment units would be
        defined as the lateral  and vertical extent of the treatment zone, except for the air
        medium, for which compliance would be measured at the downwind edge of the unit,
       at the  height of 1.5 meters.

 Q:    What is the difference between the point of compliance and the unit boundary?

 A:     Under 264.95 of 40 CFR Part 264, Subpart F, the point of compliance for ground water
       is defined as the vertical surface located at the hydraulically downgradient limit of the
       waste management area that extends down into the uppermost aquifer underlying the
       regulated unit.  If  the  facility  contains  more than  one  regulated unit, the waste
       management  area  is  described  by  an  imaginary line  circumscribing the  units.
       Consequently, the waste management area may be defined by a single unit boundary,
       or may include several units.  In contrast, no migration petitions are always unit-specific.
       Thus, a petition based  on a Part  B ground-water monitoring plan may be insufficient,
       if that plan is based on a waste management area that includes more than one unit.

 Q:     What constitutes the bottom of the unit, if there are several hundred feet of unsaturated
       thickness below the base of the liner, between the unit and the top of the water table?

A:     If the unit has a liner, then the liner, as the  boundary of the engineered area, is the
       extent of the unit.
                                  September 1, 1989

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                                  SECTION 3

                       THE LDRs AND PERMITTING
       The land disposal restrictions (LDRs) have had a significant impact on hazardous waste
management.  Permitted facilities, interim status facilities, and generators are affected.  The
Agency has recently promulgated two rules that should facilitate compliance with the LDRs.

       The "permit modification  rule," promulgated on September  28, 1988  (53 FR 37912),
established  a new  system of  permit modification  procedures.   The rule  divided  permit
modifications into three classes  (Class 1, 2,  and 3), each with different submittal and public
participation requirements (Class 1 modifications are the simplest).  The three-tiered system
reduces the administrative burdens associated with permit modifications. The new procedures
also provide for a temporary authorization, which is valid for a term of 180 days and may be
extended  for  another  180 days  if  modification procedures are  initiated.   A  temporary
authorization  requires Agency approval, but it does not  require  prior  public notice  and
comment.

       The second rule, known  at the "Christmas Tree rule," was promulgated on March 7,
1989 (54 FR 9596).  The rule facilitates compliance with LDRs in two ways.  First, it amends
the permit  modification procedures to reclassify as Class  1 certain changes necessary  to
comply with the LDRs. Second,  it expands the scope of changes that can be  made at interim
status facilities.

       These procedures for  permit  modifications and  changes during  interim  status  are
effective now in States where EPA administers the RCRA program.  Authorized States are not
required  to adopt these new procedures, although it is expected that many  of them will.
Therefore, for State-administered RCRA permits,  the State agency will use its own procedures
until it adopts the new approach. However, EPA may use these new procedures in authorized
States whenever it is necessary to change a  RCRA permit or to authorize a change in interim
status in order to implement provisions imposed by Federal law.

LDR PERMIT CONDITIONS

Q:     Does the RCRA permit need to incorporate LDR requirements?

A:     The LDR requirements are self-implementing HSWA provisions and apply to all facilities
       regardless  of any permit  conditions.  Since the standards are self-implementing  (and
       also since additional LDR regulations are still being developed), it is preferable to write
       simple, general permit conditions that state the facility's obligation to comply  with Part
       268 and statutory LDR  requirements.
                                 September 1, 1989

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                                          3.2
 WASTE ANALYSIS PLAN

 Q:     How should EPA  address the  LDR waste analysis procedures  in new Part B permit
        applications?

 A:     There are two approaches the permit writer could take.  Under the first approach, the
        permit writer would write fairly general waste analysis plan conditions and reference the
        separate LDR plan which, being outside the permit, can be changed periodically without
        going through the permit  modification procedures.  Under the second approach, the
        waste analysis plan would be fairly detailed, but the permit would also state that
        changes to the plan will be handled as  a minor modification (or a Class 1 modification
        with prior approval).   In either case, the permit should include a qualifier stating that
        notwithstanding what the plan says, the owner/operator has to comply with standards
        of Part 268, as promulgated or  revised.

 Q:     Why should the LDR waste analysis plans be treated in a different fashion than the
        basic facility waste analysis plan?

 A:      In the case of the general waste analysis plan, the permitting  agency  has  spent a
        significant amount of time to assure that the facility's  plan  will  meet the Part 264
        requirements during the permit development. After permit issuance, it is the plan itself,
        and not the Part 264 regulations, that the facility must comply with. In contrast, since
       the LDR standards are self-implementing (as discussed above), the facility is obligated
       to abide by those requirements even if they are in  conflict with the  permit's waste
       analysis plan.  Therefore, there is no need to dedicate a  large amount of resources to
       approving plan changes, especialy since the waste analysis plan is considered  a permit
       condition and the permit modification procedures would  have to be followed.

 Q:     How can EPA enforce against this non-permit waste analysis plan?

 A:     The  LDR  provisions  are  self-implementing.   We would  enforce against the  LDR
       standards.

 Q:     Does a waste analysis plan need to be modified to comply with the LDR requirements?

 A:     It is not necessary  to  modify existing waste analysis plans  to incorporate  LDR
       requirements, since the standards  are self-implementing.  However, if the facility or the
       Agency wants more detailed waste analysis procedures, then a LDR waste analysis plan
       can be developed as discussed above.

 Q:     Does the new permit modification  rule address the waste analysis plan?

A:     Yes.   A change to the  waste analysis  plan that is  necessary  to comply with  EPA
       regulations  (e.g., land disposal  restrictions) would be a Class 1 modification, which
       does not require Agency approval. A facility could modify its plan under this approach,
       but it would not shield them from overriding LDR requirements.  Furthermore, since this
                                  September 1, 1989

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                                         3.3
       Class 1  procedure does not provide for prior Agency approval, there would be no
       assurance that the facility's revised plan is consistent with the LDR requirements.

NEW PERMFT  MODIFICATION  PROCEDURES

Q:     What are the classes in the new permit modification rulemaking?

A:     There are now three classes of permit modifications.  Class 1  modifications are for
       minor changes such as routine maintenance and generally do not require prior Agency
       approval.  Class 2 modifications are an intermediate tier of changes.  They address
       common or frequently occurring changes.  The public participation activities are initiated
       by the permittee and include a public notice, an informal public meeting, and a 60-day
       comment period.  Class 3 modifications address significant changes that substantially
       alter the facility or its operations.   The Class 2 public participation procedures are
       followed initially, then followed by the more formal  permitting procedures of Part 124,
       including newspaper and radio notices, 45 day comment period, and opportunity for
       a public hearing.

Q:     Who  implements  the new  permit  modification   procedures  in  authorized   and
       unauthorized States?

A:     EPA will implement the new procedures where applicable until States have adopted
       them.  Currently, EPA may  use these procedures  in unauthorized States, and in
       authorized States for actions performed pursuant to HSWA provisions that States have
       not become authorized for.

Q:     Would  the new  permit  modification procedures  override  more  restrictive  State
       regulations?

A:     No. The procedures and standards of authorized States still apply.

Q:     So how  can an EPA approved  permit modification  be implemented by a facility in an
       authorized State?

A:     When using the  new procedures,  EPA works with  the State program to coordinate
       approval of the facility change.  In many cases the State may elect to defer to the EPA
       permit change by exercising a state waiver authority or by  using another expedited
       procedure.  EPA is encouraging States to adopt the new modification procedures so
       they may be implemented pursuant to State law.

Q:     What is the relationship between the new permit modification procedures and activities
       conducted under corrective action schedules of compliance?

A:     In cases where the permit specifies a process for corrective action (e.g., establishing
       a remedial investigation, selection of remedy, resolving disputes), then the  procedures
       contained in the permit may be followed.   Where a  process is  unspecified, the  new
       modification procedures may be used to implement corrective action.
                                  September 1, 1989

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                                           3.4
 Q:    What is a temporary authorization?

 A:    A temporary authorization is granted by the Agency to a permittee to conduct certain
       specified types of activities for a period of up to 6 months (or 12 months, if reissued).
       It may be used in situations where the activity is short-term in nature or when the need
       for the activity is urgent. The authorization is intended to quickly implement beneficial
       or improved waste management practices.  Public notice and comment is not required
       before approval.   However, the public is notified  at the time a  facility  requests a
       temporary authorization and a second notification occurs after a decision  is made to
       grant or deny the request.

 Q:    What kinds of activities qualify for temporary authorization?

 A:    Temporary authorizations can be used for activities  such as corrective  action and
       closure; treatment or storage in tanks or containers of restricted wastes in accordance
       with Part  268; avoiding disruption in waste  management activities;  responding  to
       changes in types or quantities of managed wastes; or carrying out other changes to
       protect human health and the environment. The temporary authorization  request must
       meet the criteria in 270.42(e)  and the standards of Part 264, and  must  be approved
       by the Agency.

 Q:    Are temporary authorizations intended for one-time use or can they be used multiple
       times for a specific activity?

 A:     Temporary authorizations are intended for short term use.  A specific authorization may
       be renewed once.  Additional  operation of the authorized activity  would need to be
       permitted.

 Q:     Is a temporary authorization the same as interim status?

A:     No, temporary  authorizations are  given only  to  permitted facilities and the  actions
       authorized must comply with Part 264 management standards.

Q:     Could an  owner/operator use a temporary authorization to  burn waste  containing
       dioxin?

A:     Yes, if the owner/operator meets the qualifying criteria necessary to obtain a temporary
       authorization, for example,  if incinerating  the waste is a closure or corrective action
       activity.   The permit  writer has  discretion  to either  approve such   a  temporary
       authorization request, or to require a permit modification (including public  participation)
       instead.

Q:     Could a facility obtain a temporary authorization to operate a mobile incinerator or a
       research, development, or demonstration (RD&D) unit?
                                  September 1,  1989

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                                         3.5
A:     Yes, a mobile incinerator or  RD&D unit (or any other type of unit) is eligible for a
       temporary authorization if it meets the RCRA Part 264 management standards and the
       criteria for obtaining a temporary authorization.

Q:     Can EPA issue a temporary authorization in an authorized State?

A:     As with the permit modification procedures, EPA may use the temporary authorization
       procedures  in an authorized  State if the  specific  action is  deemed necessary to
       implement  HSWA.  However,  such an authorization does not supercede any state
       requirement, so EPA should work with the State program to assure that the activity will
       be allowed.

Q:     What changes to the permit modification regulations were made in the "Christmas Tree"
       rule (March 7, 1989)?
                                              i
A:     The rule provides that  new waste codes (or a narrative description) can be added to
       a permit  as a Class 1 change, under certain conditions, when necessary to comply with
       the LDR. For exampe,  the added waste codes could be for disposal of wastes treated
       to  BOAT or "soft hammer" standards, or treated wastewater, waste water  treatment
       residues, and incinerator ash  if the specified conditions are met. Further, it allows as
       a Class 1 change the addition of new wastes for treatment in tanks or containers under
       certain  limited  conditions.   As  an example,  the  new waste codes  (or narrative
       description) could be for  leachates or leachate treatment residues.  Finally, it allows as
       a Class  1 change, with prior  Director approval, the addition of certain new treatment
       processes that take place in tanks and containers.

CHANGES IN INTERIM STATUS   THE CHRISTMAS TREE RULE

Q:     If capacity exists at other facilities, can  interim status facilities increase their capacity to
       comply with the LDR?

A:     Yes.  The regulations  allow increases  in design capacity if the Director approves the
       change because of a lack of available capacity or because the change is necessary to
       comply with a Federal, State, or  local  requirement.  If a facility demonstrates that the
       change  is necessary  to comply with  a  Federal  requirement,  e.g., the  LDR,  no
       demonstration of  a lack of capacity need be made.

Q:     Can the  addition of tanks or containers to treat or store restricted wastes be approved
       as a change  in interim status if the change would  exceed the reconstruction limit?

A:     Yes.  The  reconstruction limit does not apply to changes made to treat or store
       restricted wastes  in tanks or  containers  so long as the changes are  made solely to
       comply with the LDR.

Q:     What if EPA  approves  a facility change  as necessary to comply with LDR, but State
       laws governing interim  status  would not  allow the change?
                                  September 1, 1989

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                                           3.6
 A:     RCRA does not preempt more stringent State law.  Therefore, when a Federal action
        is less stringent than State law, State law governs.  In this case, if State law prohibits
        the change, the change cannot be  made unless the State  allows it.  However, EPA
        encourages States in this situation to approve these requests or otherwise allow the
        changes to occur.  For example,  some States have waiver authority, which allows the
        State to waive a provision of State law so long as the waiver does not result in the
        State program being less stringent than the Federal program.  Such waivers have been
        used by States to allow Federally-approved facility changes to take place.

 GENERATORS AND  INTERIM  STATUS

 Q:     If a generator obtains interim status, how  would he get out of the permit system?

 A:     Once a generator becomes an interim status facility, the only way to relinquish interim
        status is to proceed through the  permit process to a final determination (approval or
        denial).  Even if all interim status units have  been properly closed, the facility still
        remains in interim status.

 Q:     Could a generator who is forced to store restricted waste for more than 90 days obtain
        interim status  for storage of those wastes?

 A:     Yes, generators can qualify  for  interim status  if they  meet three criteria:  (1)  they
        accumulated their wastes in tanks or containers before the effective date of the LDR
        rule  concerning the  particular waste;  (2) they demonstrate that interim status is
        necessary  due to requirements of the LDRs; and (3) they submit a Part A within 30
        days of exceeding the 90-day storage time limit.

 Q:     Is there a  specific date after which generators who  store LDR waste can no longer
       obtain interim  status?

 A:     No. The determining factor that makes a  generator eligible for interim status is being
       forced to store waste beyond the  allowed  90-day accumulation period due to reasons
       attributable to the LDR. (Note that the accumulation period is  180 to 270 days for small
       quantity generators of 100 to 1,000 kg of waste per month. See 262.34) It is possible
       that a generator's  off-site shipment arrangement  might change immediately after
       promulgation of an LDR rule,  or it  could be months or even  longer afterwards.  Each
       generator request for interim status will be evaluated on the merits of the specific case.

 Q:     Could a generator legally conduct  BOAT stabilization for restricted wastes (e.g., F006)
       without a permit?

A:     Yes.  The regulations in  262.34 allow generators to store or treat  wastes for up to 90
       days  in their  accumulation  tanks and containers without a permit.   Therefore, a
       generator could stabilize waste in a tank or container  as long as the unit is emptied at
       least every  90  days.
                                  September 1, 1989

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                                         3.7
Q:     If a generator were using a heat cured  epoxy process in a container, could s/he
       employ this activity for restricted wastes without obtaining a permit?

A:     No, this is thermal treatment.  The only storage and treatment activities that generators
       may conduct without a permit are those governed by the tank or container standards
       of  Subparts I  or J,  respectively.   Thermal treatment  is not allowed  under those
       standards, but rather is controlled under Subpart P.

Q:     How will the  upcoming  guidance on 90-day generator treatment mesh with the
       preamble language in the small quantity generator (SQG) rule?

A:     The new guidance document should provide additional clarification of activities allowed
       during accumulation.

Q:     Can interim status be transferred?

A:     Changes in ownership or operational control of a facility may be made if the  new
       owner/operator submits a revised Part A no later than 90 days prior to the scheduled
       change and follows the procedures in 270.72(a)(4).

STATE AUTHORIZATION

Q:     How will the fact that LDRs are split across authorization clusters be addressed?

A:     Because the LDRs are  HSWA regulations, they take effect in all States regardless of
       authorization  status,  and are enforced  by EPA  until the  States are authorized.
       Therefore, EPA and the States will need to coordinate their programs closely to avoid
       confusion that  may arise because the  State may be authorized for portions of the LDRs
       while EPA implements other portions.

Q:     Will the States be able to receive authorization for the LDR variance procedures?

A:     None of the LDR variances (either national or case-by-case) will be an option for State
       authorization in the foreseeable future, since most of these variances have  a national
       capacity element to them. Site-specific treatability variances,  particularly where these
       relate to cleanup situations, are now being delegated by Headquarters to the Regions,
       and may  ultimately be delegated to the States.
                                  September 1, 1989

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                                   SECTION 4

                           ENFORCING  THE LDRs
       The LDRs contain certain administrative requirements associated with the treatment and
disposal of restricted wastes, including notification requirements, certification requirements, and
soft hammer notifications, certifications, and demonstrations.  The LDRs require generators
managing restricted wastes that exceed the treatment standards or California list prohibition
levels to provide off-site treatment or storage facilities with a written notification that includes:

             The appropriate treatment standards or prohibition levels;

             The EPA hazardous waste number; ;

             The manifest number associated with the shipment of waste; and

             Any available waste analysis data.

       When restricted wastes are treated on-site, a formal  notification  is not  required.
However, the owner/operator should maintain the available waste analysis data and note the
appropriate treatment standards or prohibition levels in the site files.  (See 268.7(c)).

       A  generator whose restricted waste already meets the treatment standard may certify
such,  and send the waste directly to a land disposal facility. If a generator is unable to certify
that the waste meets the treatment standard, he/she must treat the waste prior to disposal,
unless the generator obtains an exemption or variance.  In this case, the treatment facility
would ultimately need to certify that the waste meets the treatment standard before it is land
disposed.  Owner/operators are not required to prepare a certification for wastes that are
treated and disposed on-site.  (See 268.7).

       There are also notifications, certifications, and demonstrations for soft hammer wastes.
Generators must submit with the manifest for each shipment of waste a notification that the
shipment  contains soft hammer waste.   A certification should state whether  treatment is
"practically available." This certification should be completed by the generator, who must also
prepare a soft hammer demonstration  to  justify the certification. This demonstration should
be sent to the Regional Administrator and must accompany the first shipment of waste to an
off-site facility.  (See 268.7).
                                  September 1, 1989

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                                         4,2
 GENERAL ISSUES CONCERNING NOTIFICATIONS, CERTIFICATIONS, AND
 DEMONSTRATIONS

 Q:    Are  generators  required  to   keep  copies  of  notifications,  certifications,  and
       demonstrations, and for how long?

 A:    Yes, as of August 8, 1988, these documents must be retained for five years.  The
       requirement to retain such documentation for this period is found in the First Third rule,
       which  also  provides  EPA with  the regulatory authority  to extend  the five  year
       requirement if an enforcement case is ongoing.   Previously, generators  were  only
       required to retain documentation relating to manifests and waste analysis for three
       years (see 40 CFR 262.40(a)  and (c));   there were  no requirements for retaining
       documentation for notifications or certifications.

 Q:    Is there a standard format for notifications?

 A:     No.  However, pursuant to 268.7, both standard and soft hammer notifications must
       include certain information,  such as the EPA hazardous waste number and the manifest
       number associated with the shipment of waste.

 Q:    Should the certification that a restricted waste meets its treatment standard be sent with
       each off-site waste shipment?

 A:     Yes.

 Q:     Who provides the generator certification statement?

 A:     The generator should use the language specified in the LDR regulations.

 SOFT HAMMER NOTIFICATIONS, CERTIFICATIONS,  AND  DEMONSTRATIONS

 Q:     How do soft hammer notifications and demonstrations differ?

 A:     A soft hammer notification  is simply a document that  is sent from the generator to
       inform the receiving facility  that it is receiving a shipment of soft hammer waste.  Soft
       hammer wastes  may  be  disposed  in  a minimum technology  landfill or  surface
       impoundment if, prior to such disposal, the generator has made a good faith effort to
       locate and contract with treatment and recovery facilities practically available which
       provide the greatest environmental benefit. In this situation, the generator would submit
       a demonstration and certification.  (See 268.8(a))

Q:     Do soft  hammer certifications  and demonstrations need  to  be approved  by the
       respective EPA Regional Office  before the waste is  shipped, and does the Regional
       Office need to approve the  soft hammer demonstration within some established time
       period?
                                 September 1, 1989

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                                         4.3
A:     Soft hammer demonstrations are self-implementing; they must be sent to the Regional
       Administrator and receiving treatment, storage, or disposal facility prior to disposal of
       the waste, but need not be approved by EPA before such shipment.  Thus, a generator
       may indefinitely ship soft hammer waste after submitting a certification or demonstration
       regardless of whether EPA has approved these submittals.  The Region may actually
       review  these submittals at any time, and at that point invalidate  a certification or
       demonstration  or request further information  if the Regional Administrator determines
       that a certification or demonstration is inaccurate.  The Regions have full discretion as
       to when and how they will review these  submittals. Therefore, a generator should not
       assume that his/her certification or demonstration has been  approved just because
       he/she  has not received a response from the Region.

Q:     Exactly who gets the soft hammer notifications, certifications, and demonstrations?

A:     A notification that the waste is a soft hammer waste accompanies the manifest for each
       shipment of soft hammer waste, regardless of  its destination. A copy of the certification
       should  be submitted to the appropriate Regional Administrator and should accompany
       the initial shipment of waste and  each subsequent waste shipment.   The one-time
       demonstration  should  be  sent to the Regional Administrator and the receiving facility
       if the waste is shipped off-site or treated and/or disposed on-site.

Q:     Are owner/operators of treatment  facilities required to  keep a copy of soft hammer
       certifications and demonstrations?

A:     Yes, they are  required to keep a copy of the materials  submitted to them  by the
       generator.  In addition, owner/operators must certify that they have complied with the
       requirements  of  the  certifications  and treated the  waste in  accordance with  the
       demonstration submitted by the generator. The certification must be submitted along
       with the waste  shipment to the storage or disposal facility receiving the treated waste.
       The owner/operator of the treatment facility must keep copies of that certification  and
       demonstration on-file.

Q:     If a generator  sends  a soft hammer waste  to a treatment  facility, and that  waste
       subsequently is  land disposed at  another facility, who must provide a soft hammer
       certification?

A:     The generator must notify the receiving facility that the waste is  a soft hammer waste,
       and the treatment facility  must certify that the waste  has been treated in accordance
       with the generator's demonstration.

Q:     Is it ever necessary to update a soft hammer certification or demonstration?

A:     Yes.  The generator is required to notify the  appropriate EPA Regional  Office if there
       is any change  in the basis  on which the certification or demonstration  was originally
       made.   For example, a  generator may have originally certified that there was  no
       available capacity for treating his/her soft  hammer  waste.   If capacity subsequently
       came on-stream,  the generator would be required to notify EPA that such capacity had
                                  September 1, 1989

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                                          4.4
        become available.  The Region might require the generator to access such capacity,
        or the generator might provide further demonstrations as to why he/she  would not be
        able to access that capacity (e.g., it may not be practical, economically feasible, etc.).

 Q:     Is the one-time soft  hammer demonstration for  the unit, the facility,  or  the waste
        stream?

 A:     The one-time soft hammer demonstration is required for each waste stream.

 Q:     Since the burden is put on the Regions to handle soft hammer demonstrations and
        certifications, will  Headquarters assist the  Regions to ascertain which treatments are
        practical?

 A:     Yes, guidance can be found in the August 17, 1988, preamble (see 53 FR 31117), as
        well as in a computer printout sent to the Regions by Headquarters. The preamble
        provides a cost ratio  and a discussion of  how cost and other  factors should be
        considered for determining practically available treatment alternatives. The Regions will,
        however, need to evaluate these factors on a case-by-case basis.

 Q:     Commercial incinerators often have capacity reserved for up to  a  year  and a half  in
        advance.  Furthermore, they will not accept waste from a generator that is not already
        on the incinerator's customer list.  Would a statement to that effect (i.e., that there  is
        no incinerator  capacity available for a year and a half) be looked on as  a reasonable
       demonstration by EPA?

 A:      Potentially, based on whether incineration  is  the  best practical treatment.   First, EPA
       would evaluate demonstrations with a consideration of previous practices.  Second,
        EPA would measure the costs of treatment relative to the baseline cost of shipment and
       disposal in a minimum technology landfill or surface impoundment.

 Q:     If a generator sends a soft hammer waste to  a unit other than a landfill or a surface
       impoundment (e.g., to a waste pile), would the soft hammer provisions still be in effect?

A:     No, but a notification of restricted status per 268.7(a)(4)  is still required.

GENERATOR  LDR  INSPECTIONS

Q:     Is there a potential for misclassifying waste codes?

A:     Yes.  In fact, generators may  be inclined to pick and choose waste codes  to reduce
       the  impact of the LDR regulations  on their operations.   For example, generators of
       electroplating waste could classify a waste D004 (hazardous by EP toxicity because of
       its metal content), when the waste actually meets the listing for F009, which is a First
       Third waste for which EPA did not establish a treatment standard. The reverse situation
       could also be true.  However, enforcement staff should not assume that generators who
       change their waste codes are  doing so solely  for the purpose of  illegally avoiding the
       LDRs.
                                  September 1, 1989

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                                         4.5
Q:     What evidence must a generator produce in order to change a waste code?

A:     The Agency has not developed any standard for judging what is sufficient information.
       Although the generator must determine if a generated solid waste is a hazardous waste
       (see 262.11), the onus falls on  the enforcement official  to disprove a change in
       classification.  Generally, an enforcement official  should look at how the waste was
       generated  rather  than  how it  looks.   After  May  1990,  this  problem should  be
       substantially reduced, because treatment standards will have been established for all
       waste codes upon promulgation of the Third Third rulemaking.

Q:     Does EPA or the generator have the burden  of establishing a paper trail to determine
       whether restricted waste was properly disposed?

A:     The generator has the responsibility to keep the records required by 268.7 or 268.8.
       However, the regulatory agency may not  always be able  to determine the ultimate
       disposal of a  generator's waste.   In some States, treatment, storage,  or  disposal
       facilities are required to maintain a monthly operating report,  which can be useful to the
       regulatory agency that is trying to cross-reference documents to track waste shipments.

Q:     How do you prove that a generator sent a certification with his/her waste shipment?

A:     As of August 8, 1988, the generator must  retain  a copy of the  certification in his/her
       files for five years.  An inspector may also check the records of the TSDF that received
       the waste.

Q:     Should the  generator receive any documentation  to demonstrate that waste has been
       sent from a treatment facility to a disposal  facility?

A:     No.  The treatment facility must send a copy  of the  generator's documentation and
       certification, if applicable, to the facility  receiving  the waste  or treatment residues, but
       it is not required to return any documentation to the generator.

Q:     Does  the  five-year record retention  period require the   generator to  keep waste
       manifests for an extra two years?

A:     No.  Part 268  applies only to  LDR documents and does not change  the three-year
       manifest retention period. However, if the information  required for LDR documentation
       is on the manifest, it  must be  kept  for five years.   The manifest number and EPA
       hazardous waste number or treatment standard are not listed in a separate notification
       form.

Q:     Are there any requirements that a laboratory,  conducting a waste analysis, provide any
       certification?

A:     No.
                                  September 1,  1989

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                                          4.6
 Q:     Regarding the soft hammer certification and demonstration, should the enforcement staff
        look at the solicitation letter to see if the generator accurately portrayed the waste?

 A:     Although submittal of a solicitation letter is not required, enforcement staff should look
        at anything the generator has that can document his/her waste. Preferably, this review
        process should be  performed by  EPA staff  in  their own  offices and not  at  the
        generator's place of  operation.

 TREATMENT, STORAGE, AND DISPOSAL FACILITY (TSDF) INSPECTIONS

 Q:     Would an owner/operator violate the  LDRs by placing purge water on  the ground?

 A:     Yes, if the purge water is  a hazardous waste and is also a restricted waste.  In this
        case an owner/operator would be illegally disposing of a hazardous waste.

 Q:     Is there a way to determine if owner/operators are storing to accumulate a sufficient
        quantity of waste before it is economically or technically practical  to treat that waste?

 A:     Generally, the owner/operator may store for up to a year in order to accumulate waste.
        Note, however, that storage for longer than 90 days requires that the generator obtain
        interim status. Should EPA take an enforcement action before a year is up, the burden
        of proof is on the Agency to demonstrate that such storage was not solely for  the
        purpose of accumulation.   In this situation, the inspector should ask key  questions
        such as why was the waste stored? Where was it stored?  What type of treatment was
        used?  Were  the drums and tanks dated?

 Q:    What can an  inspector do  if a treatment, storage, or disposal  facility does not use the
       toxicity characteristic  leaching procedure (TCLP) or conduct a total waste analysis for
       his/her certification?

 A:     The inspector can cite the  facility for a potential  violation if those tests have not been
       conducted after treatment.

 Q:    If facilities treat and dispose onsite, must they keep records?

 A:     Yes.  Treatment and disposal facilities are required to retain records of the waste they
       handle pursuant to 264.73, 265.73,  and 268.7(c).

 ENFORCEMENT ASSISTANCE

 Q:     Will Headquarters provide assistance for enforcement activities?

A:     Headquarters  will try to provide assistance, and encourages Regional staff to bring site-
       specific issues to the  monthly Enforcement Section  Chiefs' conference calls or the LDR
       enforcement conference calls.  Of course, questions may also be addressed directly to
       OWPE LDR contacts.
                                  September 1, 1989

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                                  Section 5

                   CLOSURE,  CORRECTIVE ACTION,
              AND THE  LAND DISPOSAL RESTRICTIONS
      The  land disposal  restrictions  (LDRs)  place  important new constraints  on how
owner/operators can close and/or clean up their facilities. Specifically, the land ban introduces
an additional layer of complexity to these already complex programs, and, in doing so, limits
the ability of the Agency to select certain closure or cleanup options. One key reason why the
LDRs limit the flexibility of the closure and corrective action programs is that the land ban is
technology-based, whereas  the closure and corrective action programs are grounded on risk-
based decisionmaking, i.e.,  closure or cleanup to levels that are protective of human health
and the environment.  Second, the land ban was designed by Congress primarily to address
"new wastes," i.e., wastes continuing to  be generated by industrial operations.  Although the
LDRs provide national capacity extensions for contaminated soil and debris generated during
RCRA and  CERCLA cleanups, Congress did  not design the LDR program with "old waste"
situations foremost in mind.

      For these reasons, there are inherent difficulties associated with the imposition of land
ban requirements on closure and cleanup activities for wastes already in  place. Chiefly, the
land  ban creates major cleanup disincentives, because once restricted waste is excavated
during closure or corrective action, it may require treatment to a technology-based level prior
to placement.

CONCEPT  OF "PLACEMENT"

Q:    How do the Hazardous and Solid Waste Amendments of 1984 (HSWA) define the term
      "land disposal?"

A:    HSWA defines the term "land disposal" to include, but not be limited to, any "placement"
      of hazardous waste  in  a land-based unit.  The statute  prohibits  land  disposal, i.e.,
      placement, of restricted waste which does not meet its applicable treatment standard.

Q:    How and where is the term "placement" defined?

A:    Although the statute  defines land disposal as placement into a unit, placement itself is
      defined by Agency policy memoranda, and not by the statute or by regulation.  To
      date, EPA has defined placement as movement of hazardous waste into or onto a land
      disposal  unit.
                                 September 1, 1989

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                                           5.2
        What Constitutes Placement?

 Q:     What are some examples of situations in which the Agency, to date, has determined
        that placement has occurred?

 A:     There are three general situations in which the Agency has determined that waste is
        placed.   If that waste  were restricted, the land  ban would  be triggered and the
        owner/operator would  have to treat the waste  to the best demonstrated  available
        technology (BOAT) standard prior to redisposal.

              First, if waste from one  or more units were picked  up and put into yet another
              unit, then EPA considers that the waste has been placed.

              Likewise,  if waste were removed from  a  unit, treated in a second unit, and
              redisposed in the original or  a third unit, then the waste has been  placed.

              A third placement situation would  occur  if an owner/operator constructed a
              treatment unit (e.g., a tank) within a larger land disposal unit, excavated material
              from the land disposal unit and treated that waste in the newly-constructed unit,
              and redeposited the treated waste in the land disposal unit.

 Q:     What are some examples of situations in which placement has  not occurred?

 A:     There are three general situations in which placement does not occur and the land ban
        is not triggered:  (1) when wastes are consolidated within  a unit; (2) when wastes are
        treated in-situ3 (as long as the  wastes are not picked up and treated in another unit);
        and (3) when wastes are capped in  place.

 Q:     Is there  an environmental difference between treatment  in-situ versus treatment in
        another unit?   If not, why is EPA making such a distinction in  determining when the
        land ban is triggered?

 A:     There  is  not necessarily  an environmental difference between treatment in-situ and
       treatment in another unit.  The statute, however,  prohibits placement of untreated,
       restricted waste in a land disposal unit;  the statute does not extend this prohibition to
       wastes remaining in-situ.

 Q:    Are placement situations defined on a unit basis or a facility basis, i.e., if contamination
       is contained within the facility boundary, would the Agency consider it placement to
       move wastes within the boundary?

A:     A unit basis, since the statute defines land  disposal as placement in a unit.
    3 Examples of in-situ treatment include microbial treatment, injection of a solidification agent to
stabilize the waste, and in-situ vitrification.
                                   September 1, 1989

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                                         5.3
Q:     Is there a legal difference between placement and replacement?

A:     No.

       Generation and Placement of Pre-RCRA Wastes

Q:     Does the land ban apply to all solid waste management units (SWMUs)?

A:     The land ban applies to all hazardous wastes that are  disposed  in land-based units.
       Such hazardous wastes could be generated by current industrial operations, or through
       cleanup  of SWMUs containing pre-RCRA and/or post-RCRA hazardous wastes.

Q:     Under what legal premise are wastes disposed before 1980 subject to LDRs?

A:     The Agency's position is that once pre-RCRA wastes are picked up, the wastes have
       been "generated."   If these  generated wastes are RCRA  restricted wastes, then
       placement of the excavated material would trigger the LDRs.

       For example,  if a SWMU  contains a waste from a RCRA listed process, that waste,
       once excavated, would  be a listed hazardous waste subject to  the RCRA regulations,
       even if the waste were originally manufactured before the process  became listed.  This
       position  is based on the Office of General Counsel's (OGC's) determination that pre-
       1980 wastes may be RCRA wastes even while they are in the ground, i.e., that listing
       regulations, to some extent, are retroactive; however, the RCRA program has chosen
       not to apply retroactively all Subtitle C requirements to that pre-1980 waste unless and
       until the  waste is generated again.

       The Agency is being sued on  this point now  by Chemical Manufacturers' Association
       and several other organizations.

Q:     Would this interpretation  lead to  all  CERCLA wastes  being  called RCRA hazardous
       wastes?

A:     No, since there are still the issues with whether the waste  is a listed  or characteristic
       waste and whether the remedy newly generates the waste (e.g., through excavation and
       redisposal).  Many times, the Agency  and the potentially responsible parties  at  a
       CERCLA  site  will not know the manufacturing process(-es) that first generated the
       waste.  If the  origin of the waste  can not be determined, then in most situations the
       newly excavated waste  would  be  a  RCRA hazardous  waste only if it exhibits
       characteristics of ignitability, corrosivity, reactivity, and/or EP toxicity.   Note,  however,
       that in situations where the regulatory status of a spent solvent mixture is questionable,
       the Agency considers the waste to be a listed waste unless the  generator can prove
       that the  virgin mixture contains less  that 10 percent total  listed solvents (see 50 FR
       53316, footnote  1).
                                  September 1, 1989

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                                          5.4
 Q:     Under CERCLA, if one knows the origin of a waste and that waste is a restricted waste,
        would that waste be subject to RCRA LDRs?

 A:     Yes.   If the  CERCLA remedy involves placement of that restricted waste, then the
        remedy  would be  subject to  the  land ban under  Superfund's  statutory mandate
        requiring compliance with all applicable or  relevant  and appropriate requirements
        (ARARs).

        Agency Interpretations of Other Placement-Related Situations

 Q:     What is the Agency's current position on the collection, movement, and/or  redisposal
        of leachate with respect to the LDRs?

 A:     The Agency has determined that if an owner/operator collects leachate or leakage in
        a leachate collection system (LCS), the owner/operator may be able to return that
        material to the unit without triggering the LDRs. Typically, EPA would not consider the
        waste as having left the unit.  If, however, an owner/operator treated the leachate in a
        second unit prior to returning the  material to the originating unit, then EPA would
        consider that material as having left the unit.  Consequently, redisposal of the treated
        leachate would equal placement and would  trigger the LDRs.

 Q:     Does this concept apply only to leachate collected in the LCS, or to leachate that has
        "migrated?"

 A:      This concept applies only to leachate collected in the LCS, i.e., leachate that has not
        escaped from the unit.

 Q:     Given the prohibitions and restrictions on liquids  in landfills, an owner/operator might
        not be able to  collect leachate from the LCS and return that leachate to the  landfill
       without  some treatment, such as evaporation.  Would that interim step of treatment
       trigger the land ban?

 A:     Yes, that would be placement following treatment, if that treatment occurred in a unit
       other than the originating landfill.

 Q:     What is the Agency's current  position on the collection, movement, and/or redisposal
       of contaminated ground water with respect to the LDRs?

A:     In contrast to  EPA's interpretation of leachate,  the  Agency  has determined  that
       contaminated  ground water (including ground water from pump and treat operations)
       cannot be returned to the originating unit without triggering the LDRs.  Unlike leachate,
       EPA would consider the ground water contaminated with wastes that have left the unit.

Q:     Isn't contaminated ground water considered a solid waste, and not a hazardous waste?

A:     Under RCRA regulations, ground water is not considered a solid waste, since it is not
       discarded in the sense of being abandoned, recycled, or inherently waste-like. (See 40
                                  September 1, 1989

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                                         5.5
       CFR 261.2(a)-(d)).  Therefore,  contaminated ground water cannot be  considered  a
       hazardous waste under the mixture rule, because to have a hazardous waste mixture,
       a hazardous waste must be  mixed with a solid waste.   (See 40 CFR 261.3(a)(2)(iv)).
       However, under EPA's "contained in" policy, ground water that is contaminated with  a
       hazardous waste is considered to contain a hazardous waste, and therefore must be
       treated as if it were a hazardous waste.  Only when the ground water is treated such
       that it no longer contains  a  hazardous waste would the ground water  no longer be
       subject to regulation under Subtitle C of RCRA.

Q:     How would the Region or  State determine if contaminated  material were  leachate or
       ground water?

A:     If an owner/operator has a unit that meets the minimum technology requirements (i.e.,
       double-lined with a LCS) and if that unit is working well, then presumably the material
       being collected in the LCS  is leachate. Conversely, units such as land treatment units
       typically do  not have a LCS, and many existing landfills may be unlined.  In those
       situations, the owner/operator would be pumping out ground water from underneath the
       unit.  Once the leachate contamination is in the ground water, it is considered a release
       to the ground water, rather than leachate.

Q:     What is the Agency's current position on the collection, movement, and/or redisposal
       of contaminated soil with respect to the LDRs?

A:     There is  no clear answer to  whether placement has or has not  occurred when
       contaminated soil surrounding  a  unit is returned to the unit.   Instead,  Regional  and
       State staff must use their best professional judgment to determine on  a  site-specific
       basis whether the surrounding  contaminated soil may be considered part of the unit.
LDRs AND CLOSURE

Q:     Are approved closure plans a shield from the LDRs?

A:     No. Similar to the situation with approved operating permits and waste analysis plans,
       an approved closure plan is not a shield from the land ban.  If an owner/operator has
       an approved closure plan that does  not comport with the land disposal restrictions, the
       owner/operator must amend the closure plan and financial assurances, if necessary, to
       reflect the LDR requirements.

Q:     What is the legal basis for EPA's  interpretation that closure plans, like permits, are no
       longer a "shield?"

A:     Sections 3004(d) through (g) provide the rationale for the Agency's  position that the
       LDRs are  self-implementing prohibitions that supersede permits as well as  closure
       plans, and that the LDRs are immediately effective upon promulgation  or upon EPA's
       failure to promulgate the LDRs on a given schedule.
                                  September 1, 1989

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                                          5.6
 Q:     If an owner/operator has a closure plan that does not address land ban requirements,
        does that owner/operator have to go through the process of modifying his/her closure
        plan?

 A:     Yes, s/he will have to  amend the closure plan.

 Q:     For financial assurance purposes, does the owner/operator have to assume the most
        expensive case for his/her closure cost estimates?

 A:     Yes.

 Q:     Under the LDRs, if restricted waste were land disposed the owner/operator would have
       to meet BOAT.  If the  owner/operator chooses to send restricted wastes generated at
       closure to a wastewater treatment unit, could RCRA at least require the owner/operator
       to undertake additional monitoring around that unit?

 A:    Probably not, because under the Clean Water Act, the NPDES-permitted discharge from
       such units is not a solid waste. As  long as the  owner/operator is complying with the
       terms of his/her NPDES permit, RCRA does not have  much control over what happens
       at that unit.  The LDRs might, however, be  applicable to any sludge generated by the
       treatment plant.

 Q:    If there is an impoundment in the wastewater treatment system, would treatment in that
       impoundment be subject to the LDRs?

 A:     Yes.  By definition under 260.10, only a  wastewater treatment unit that meets  the
       definition of "tank" is exempt from Subtitle C regulation.  In contrast, an  impoundment
       in a wastewater treatment system  is  subject to full Subtitle C regulation.

 LDRs AND CORRECTIVE ACTION

 Q:    Do the LDRs directly impact any of the standards for corrective measures as proposed
       in the 3004(u) corrective action rule (also known as Subpart S)?

A:     Yes.  One of the standards in the proposed rule is that the  final remedy must control
       the  source(s) of  release so as  to  reduce or eliminate,  to  the maximum extent
       practicable, further releases of hazardous wastes, including hazardous constituents, that
       may pose a threat to  human health  and the environment.  Such source control very
       often will entail excavation, and, consequently, generation of restricted wastes.

Q:     Are source control activities more restricted during closures  than during cleanups?

A:     Probably, since at closure the Agency is dealing with discrete, regulated units that have
       a RCRA operating history and a fairly well-defined regulatory status. Conversely,  the
       history and regulatory  status of solid waste management units (SWMUs) undergoing
       corrective action are typically not as  well defined.
                                  September 1, 1989

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                                         5.7
Q:     In the case where the land ban does not apply to excavated wastes, will the Agency
       be able to have any say over their treatment and disposition?

A:     Of course.  In the context of corrective action, EPA would specify source control and
       cleanup measures that must  be implemented at the facility.

Q:     How does the land ban handle mixtures of listed wastes?

A:     The owner/operator would have to meet the treatment standards for all constituents in
       the restricted wastes.  If the mixture contains two different listed wastes that both have
       the same constituent, the owner/operator would have to meet the more restrictive BOAT
       standard  associated with the constituent.

       Implications of the "Contained In" Policy

Q:     In addition to source control,  a major component of many cleanup operations will entail
       pumping  and treating contaminated ground water.  What are the implications of the
       Agency's "contained in" policy on the LDRs and management of contaminated ground
       water?

A:     Under the "contained in" policy, a memorandum issued by the Office of Solid Waste to
       Region IV in November 1986, EPA articulated its position that ground water (or soil)
       contaminated with  a listed waste is in  itself not a hazardous waste,  but must be
       managed as a hazardous waste, so long as it continues to contain the listed waste.
       In effect, the ground water (or soil)  is "along for the ride."

Q:     What is the regulatory status of ground water or soil contaminated with characteristic,
       versus listed, waste?

A:     Once  the ground water or soil is treated to the point where it no longer exhibits the
       characteristic, then the ground water or soil does not  have to be managed as a
       hazardous waste.

Q:     Under the contained in policy,  how is  the Agency interpreting the level of cleanup
       necessary to  determine that the ground  water (or soil)  no longer contains  a  listed
       hazardous waste?

A:     The potential interpretation being considered by the Agency is that ground water (or
       soil) will not be considered contaminated with a listed waste if that waste is present in
       concentrations below health-based levels.

Q:     Are these health-based levels or drinking water standards?

A:     In  the Subpart  S corrective  action  rule, EPA  has proposed  to  use  maximum
       contaminant levels (MCLs), where  available, as  health-based levels.   The rule also
       proposes health-based levels for all but  a few of the hazardous constituents lacking
       MCLs.
                                  September 1, 1989

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                                           5.8
        Other Options for Managing Contaminated Ground Water

 Q:     If contaminated ground water is treated in a wastewater treatment unit, why don't the
        LDRs apply?

 A:     Wastewater treatment units are not regulated under Subtitle C. Discharges from those
        units are not considered solid wastes under RCRA.

 Q:     In the case where contaminated ground water is treated such that it no longer contains
        a hazardous waste,  but it is not reinjected into the ground, is a delisting required?

 A:     No, under the contained in interpretation,  ground water or soil that no longer contains
        the hazardous  waste is not required to be managed in accordance with Subtitle C.

 SITE-SPECIFIC  VARIANCES AND EXTENSIONS

 Q:     Why  does the  Agency  believe that treatability variances  may be  appropriate during
        corrective action and closure activities?

 A:     The BOAT treatment levels for restricted  wastes typically were developed  based on
        "newly-generated" wastes.  In contrast, corrective action  and closure activities typically
        will generate complex mixtures of several wastes.  Subsequently, treating  corrective
        action or closure wastes to BOAT levels may not be feasible, because the "pure" wastes
        for which those numbers were set are significantly different from the excavated material.
        The Agency believes that such variances will often be appropriate, particularly for soil
        and debris, until specific soil  and debris BOAT standards are set.

 Q:     Doesn't a treatability variance require public notice and comment?

 A:      Yes, but these  procedures are already  incorporated in  closure plan approval and
        corrective action remedy selection.   Note that  if a treatability variance  were to be
        requested for actions other  than corrective  action or closure (or CERCLA/State actions),
       then separate notice and comment would  have to be provided.

 Q:      If an  owner/operator receives  a  treatability variance,  is  a new treatment  standard
       established for that waste?

A:     If it is a site-specific, non-rulemaking, treatability variance (which  will generally be the
       case under corrective action), that variance is given only for that specific waste at that
       facility.

Q:     How would case-by-case capacity extensions be used in  the context of closure and
       corrective  action activities?

A:     An owner/operator may receive a site-specific capacity extension after public notice and
       comment if s/he can demonstrate that there is no capacity available to treat his/her
       waste.
                                  September 1, 1989

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                                         5.9
Q:     Do case-by-case capacity extensions apply to generators as well as to owner/operators
       of regulated RCRA units?

A:     Yes.

Q:     What if the capacity extension is denied?

A:     If the owner/operator has a closure plan that depends on receiving an extension and
       if s/he is unable to obtain an extension, then presumably the closure plan would have
       to be amended.  Similarly, the permit would have to be amended for operating facilities
       in similar circumstances.

SOIL AND DEBRIS TREATABIUTY VARIANCES

Q:     Until the Agency develops specific LDR treatment standards for soil and debris, how will
       applicable BOAT treatment levels be set?

A:     Through a treatability variance. The Agency is developing guidance on these treatability
       variances for soil, although the Agency has not developed numbers in  guidance that
       work well for debris.  Instead, establishing  BOAT for debris is  left to the discretion of
       the Regional Administrator.

       Guidance Approach to the Soil and Debris Treatability Variance

Q:     What are the components  of this guidance approach to soil and  debris treatability
       variances?

A:     EPA assigned  organics and inorganics to certain  "structural functional groups," and
       identified guidance treatment levels and applicable  treatment technologies for each
       group.

Q:     How would the permit writer use information given  for a structural functional group?

A:     The permit writer would first determine, by constituent, if the soil were contaminated at
       or above its associated structural functional group's "threshold concentration."  If the
       constituent concentration  in the   untreated waste were less than  the  threshold
       concentration, then cleanup would have to  reduce concentrations to within a specified
       "treatment  range."    If  the constituent   concentration  exceeded  the  threshold
       concentration, then the permit writer would look at the  associated percent reduction
       "performance" range to determine the BOAT treatment level.

Q:     What do the thresholds established  in  guidance  for  structural  functional  groups
       represent?
                                  September 1, 1989

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                                          5.10
 A:     The threshold  concentration delineates where  one should use the treatment range
        versus the percent reduction range. If the constituent concentration in untreated waste
        is less than the threshold concentration, then use the treatment range.   If it is more
        than the threshold concentration, then use the percent reduction range.

 Q:     Within a structural function group, do the threshold values and other guidance levels
        equal the total  levels for all constituents within the group, or for each constituent?

 A:     All constituents.

 Q:     With respect to the treatment range, is EPA suggesting that the owner/operator treat
        down to those  levels?

 A:     Those levels are the target levels that must be met.

 Q:     In situations where a waste is highly concentrated in the soil, the Agency is requiring
        treatment within a percent reduction range.  Such treatment could still leave the soil
        highly  contaminated.    Conversely,  where the soil  is  less  contaminated,  the
        owner/operator would  have to  reach a much lower target concentration within the
       treatment range.  What is EPA's justification for this?

 A:      BOAT is  a technology-based standard. These guidance levels tell what levels can be
       achieved by the technologies.

 Q:    The treatment ranges are fairly wide for certain  structural functional groups.  Where
       would the Region/State pinpoint the appropriate cleanup level within that range?

 A:     The Region/State does not have to pinpoint the level.  Rather,  any point within the
       range would be considered the  treatment standard.

 Q:     Would the owner/operator have to demonstrate why s/he could not meet the lower end
       of the treatment range?

A:     That will  be up to the Region/State  on  a site-specific  basis.   It is within the
       Regional/State purview to require additional treatment.

Q:     If  the  constituent concentration in  the untreated waste  exceeded  the threshold
       concentration, could the Region/State specify the treatment range, and not the percent
       reduction performance range?

A:     Yes, if it makes sense given the site-specific circumstances.  This may be particularly
       appropriate when the constituent concentration is just slightly above its threshold value.
       Note, however,  that in the case where a contaminant concentration is well above its
       threshold value, treatment may not be able to achieve the lower treatment range, given
       the demonstrated performance of the treatment technology.
                                  September 1, 1989

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                                         5.11
Q:     Are the guidance levels set solely for destruction type technologies or destruction
       efficiencies?

A:     No, they  do consider other  types  of technologies,  such as  immobilization  and
       stabilization, where such treatment practices are appropriate given the waste type.

Q:     How does the owner/operator determine whether s/he has met the treatment level when
       using technologies like stabilization or solidification that do not change the levels?

A:     The test used to determine the achievement of the standard is geared to the type of
       material (e.g., organics, inorganics) and to the type of technology being used.  If an
       owner/operator uses a destruction and removal process, s/he would test the residue
       with a  total waste  analysis to measure the  effectiveness of the treatment.  If the
       owner/operator uses a stabilization or solidification process, where the intention is to
       immobilize  the  constituents,  s/he  would  use the Toxicity Characteristic Leaching
       Procedure (TCLP) to determine whether s/he had effectively solidified or  stabilized the
       waste.

Q:     Are the structural functional group  numbers that  are used in the LDR  program
       consistent with the numbers used for clean closure?

A:     No.  Structural functional  numbers  are  technology-based, whereas clean  closure
       numbers are health-based.

Q:     After November 8, 1988, if you had not set treatment standards based on  the structural
       functional groups  for soil  and debris  contaminated with solvents and dioxin  not from
       RCRA/CERCLA corrective actions, would you have to meet BOAT?

A:     Yes, you would  have to meet the treatment standards established in the rules for the
       underlying wastes.

       Applying for a Soil and Debris Treatability Variance

Q:     In applying for a soil and debris treatability variance, does the owner/operator have to
       demonstrate first that BOAT is unobtainable?

A:     Although  such a  determination  would be  required as  a first step in  a treatability
       variance for a non-soil and debris waste, there is an underlying presumption that soil
       and debris wastes are  different. The presumption has been made for the Regions and
       States that the ordinary BOAT treatment methods may be inappropriate for soil and
       debris.

Q:     Is it possible that an  application for such variances could be  part of a Superfund
       Record of  Decision (ROD)?
                                  September 1, 1989

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                                         5.12
 A:     Yes.  Specifically, the public is provided a 30-day comment period on the pre-ROD
       "proposed plan," which describes what the ROD will contain. The ROD itself is finalized
       after the public comment period on the  proposed plan.  There is a second notice of
       availability after the ROD is signed.

       Other Selected Soil and Debris Treatability Variance Issues

 Q:     Once the owner/operator has received a treatability variance, completed treatment, and
       has a treatment residual which  s/he wants to land  dispose, does that residual have to
       go to a minimum technology unit?

 A:     If the waste has been treated to BOAT standards, the residue can go to any permitted
       or interim status unit. The minimum technology requirements apply to restricted wastes
       during periods of extensions of the effective date.

 Q:     Has the Agency defined contaminated debris and/or published guidance for handling
       this material?

 A:     There is no formal definition  of contaminated debris.  The presumption  is that debris
       includes, but is not limited  to, such  diverse materials  as wood,  stumps,  clothing,
       equipment, building materials, and storage containers and liners.

 Q:     Is the treatability variance for soil and debris contaminated with First Third wastes for
       which incineration is BOAT considered a national capacity extension?

A:     Yes.  Such  contaminated material can be  placed  in a landfill which meets minimum
       technology or equivalent standards.
                                  September 1, 1989

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