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
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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
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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
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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.
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- 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.
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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.
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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).
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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.
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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
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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?
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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?
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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.
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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
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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.
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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
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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).
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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.
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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.
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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.
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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.
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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.
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• 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?
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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?
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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.
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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.
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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?
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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?
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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?
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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).
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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,
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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.
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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?
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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.
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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.
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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.
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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.
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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
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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.
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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?
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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?
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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.
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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.
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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).
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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?
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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
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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.
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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.
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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.
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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.
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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.
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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).
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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
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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.
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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.
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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.
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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.
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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?
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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.
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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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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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